N.Y. Comp. Codes R. & Regs. tit. 9 § 54.4

Current through Register Vol. 46, No. 16, April 17, 2024

Section 54.4 - Conduct of hearings

(a) Hearings shall be conducted by a member of the authority or any employee of the authority duly designated by the authority to hold hearings, who shall be known as the administrative law judge. The administrative law judge shall rule upon matters of procedure and introduction of evidence, and shall conduct the hearing in such manner as, in his discretion, will best serve the attainment of justice. Wherever the term hearing officer appears in the rules of the authority in connection with disciplinary proceedings, it shall be deemed to mean and to refer to the administrative law judge.

(b)

(1) The order of proof in hearings before the authority shall be as follows:

(i) testimony by the witness or witnesses in support of the charges preferred against the licensee;

(ii) cross-examination of such witnesses;

(iii) testimony by the licensee or his witnesses in defense and explanation; and

(iv) cross-examination of the licensee and witnesses.

The hearing officer may, in his discretion, change the order of proof where the circumstances so warrant.

(2) Objections may be taken to the rulings of the hearing officer with the reasons for such objections, but will not be deemed to have been made unless duly noted in the record.

(3) Motions to dismiss may be made at the option of the licensee or his attorney, but are not required and will not be deemed to be necessary to protect any right of the licensee.

(4) The hearing officer shall have no power to grant any motion to dismiss any of the charges or to the effect that the authority has failed to establish a prima facie case.

(c)

(1) The rules of evidence governing proceedings in the courts of this State shall not be rigidly enforced in hearings before the authority. Unless objection is made and duly noted in the record, all evidence appearing in the record shall be deemed to have been validly introduced for the consideration of the authority.

(2) The introduction of cumulative evidence shall be avoided and the hearing officer may curtail the testimony of any witness which he judges to be merely cumulative; however, the party offering such testimony may make a short avowal of the testimony which would be given and if the witness asserts that such avowal is true, this avowal shall be made part of the record.

(3) Upon the due application to the authority prior to its determination, the authority may, in its discretion, reopen the hearing for the presentation of new or additional evidence. Such application must set forth concisely the nature of this additional evidence. The authority may, on its own motion, reopen a hearing for the presentation of additional evidence.

(d) The hearing officer or the attorney for the authority may amend the notice of pleading at any time before the close of the hearing or prior to a determination by the authority. If the licensee requests an adjournment based upon such amendment, the hearing officer may, in his discretion, grant such adjournment in the interest of justice when a party to such proceeding was surprised by such amendment without fault on his part.

(e) Parties may, by agreement, stipulate as to any facts involved in the proceedings, provided that such stipulation is duly noted in the record.

(f) Oral argument may be made only before the hearing officer. Such oral argument may be curtailed or limited by the hearing officer in his discretion and is to be included in the record.

(g) After the conclusion of the hearing, the hearing officer shall make, in writing, his findings as to whether the evidence sustained the charges, or any of them, preferred against the licensee, shall designate which charges he has found sustained by the evidence, and shall, at his option, recommend to the authority the action to be taken against the licensee. A copy of such report shall be served on the licensee or his attorney by first class mail prior to submission of such report to the authority, provided a request therefor is made on the record at the hearing. The report, when served, shall be accompanied by a statement in writing advising that the recipient may controvert any of the findings contained therein within the time limited in such statement. The record shall be referred, together with the hearing officer's report and any statement controverting the findings contained therein, for due consideration and appraisal by the authority at a meeting duly held by it.

(h) Subject to the supervision and control of the authority, in all cases where the licensee has pleaded "no contest" to the charge or charges, the hearing officer shall summarize the facts of the case and shall recommend the penalty to be imposed by the authority.

(i) In the event of a hearing officer's death, resignation, removal, termination of employment, disability, or his inability or failure to make his written report and findings within 30 days after the completion of the hearing, the chairman of the authority may direct that all of the evidence taken at the hearing shall be submitted to the members of the authority at a regular meeting. After consideration thereof, the members of the authority shall make proposed written findings and mail a copy thereof to the licensee or his attorney and afford him an opportunity to controvert, in writing, any of the proposed findings contained therein. Thereafter, after due consideration of all of the foregoing, including any statement in controversion submitted by the licensee, the authority shall make final written findings and assess such penalty as may be deemed appropriate.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 54.4