N.Y. Comp. Codes R. & Regs. Tit. 9 §§ 270-10.7

Current through Register Vol. 46, No. 43, October 23, 2024

Section 270-10.7 - Hearing officer

(a) The commissioner may appoint a hearing officer who shall preside over such hearing and report to the commissioner regarding the hearing.

(1) The hearing officer shall conduct the hearing in a fair and impartial manner.

(2) Subject to review by the commissioner upon receipt of the hearing officer's report, the hearing officer shall have power to:

(i) rule upon motions and requests;

(ii) set the time and place of hearing;

(iii) administer oaths and affirmations;

(iv) issue subpoenas requiring the attendance and testimony of witnesses and the production of books, records, contracts, papers and other evidence;

(v) summon and examine witnesses;

(vi) admit or exclude evidence;

(vii) hear argument on facts or law; and

(viii) do all acts and take all measures necessary for the maintenance of order and efficient conduct of the hearing.

(3) The designation of a hearing officer shall be in writing and filed with the commissioner.

(b) Appearances.

(1) A party may appear in person and/or by counsel. If an attorney represents a party, all service of papers not required by law to be served personally upon such party shall be made upon the party's attorney.

(2) Any person appearing on behalf of a party in a representative capacity may be required to show his authority to act in such capacity.

(3) If a party who answers the notice of violation and hearing fails to appear at the hearing, issues on which that party has the burden of proof shall be resolved against the nonappearing party. The party who is present may elect, subject to the discretion of the hearing officer, to present all or part of his evidence by affidavit rather than oral testimony.

(4) The hearing officer may open a default or relieve any party of the consequences of a default upon good cause shown.

(5) Failure to appear at a hearing shall not be deemed to be a waiver of the right to be served with a copy of the final determination and order, and to proceed otherwise in any manner prescribed by law.

(c) Evidence.

(1) Each witness shall, before testifying, be sworn or make affirmation.

(2) Prefiled, written testimony may be presented by any party with permission of and subject to the discretion of the hearing officer.

(3) The rules of evidence shall not be strictly applied; provided, however, the hearing officer shall exclude irrelevant, immaterial or unduly repetitious evidence and shall give effect to the rules of privilege recognized by law.

(4) Every party shall have the right to present evidence and cross-examine witnesses.

(5) The hearing officer may take official notice of all facts of which judicial notice could be taken and of other facts within the specialized knowledge of the commissioner.

(6) Oral argument may be permitted by the hearing officer within his discretion and shall be recorded.

(d) Adjournment. A request for an adjournment of the hearing shall be in writing and submitted to the hearing officer prior to the hearing.

(e) Record.

(1) Testimony given and other proceedings had at a hearing shall be recorded verbatim. For this purpose, and consistent with respondent's rights, the commissioner may use whatever means he deems appropriate, including but not limited to the use of stenographic transcriptions or recording devices.

(2) The record of the hearing shall include: the notice of violation and hearing; the transcript or recording of the testimony taken at the hearing; exhibits submitted and filed therein; stipulations, if any; the hearing officer's report; and any briefs submitted in connection with the hearing.

(3) A copy of the stenographic transcript of the hearing or, if the hearing is recorded, a copy of the tape or a transcript of the recording, shall be available to any party upon request to the stenographer or the commissioner, as appropriate, and upon payment of the fees allowed by law.

N.Y. Comp. Codes R. & Regs. Tit. 9 §§ 270-10.7