N.Y. Comp. Codes R. & Regs. tit. 9 § 274.8

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

Section 274.8 - Second stage hearing

The primary purpose of a hearing is to determine and evaluate unresolved issues of fact or law.

(a) Hearing officer. The commissioner will appoint a hearing officer or may hire a person from outside the Office of General Services to hold a particular hearing. Subject to review by the commissioner, the hearing officer shall have power to: rule upon motions and requests; administer oaths and affirmations; summon and examine witnesses; admit or exclude evidence; hear argument on facts or law; do all acts and take all measures necessary for the maintenance of order and efficient conduct of the hearing.

(b) Place and time. The hearing officer may schedule the hearing in Albany or any other time and place.

(c) Participation. A party may appear in person or by counsel. If an attorney represents a party, all papers not required by law to be served personally upon such party shall be served upon the party's attorney. Any person appearing on behalf of a party in a representative capacity shall be required to disclose the basis of their authority to act in such capacity. If the respondent fails to appear at the hearing, issues on which it has the burden of proof may be resolved against said party. Any party who is present may elect, subject to the discretion of the hearing officer, to present all or part of its evidence by affidavit rather than by oral testimony. The hearing officer may open a default or relieve any party of the consequences of any default upon good cause shown, for example, that one has a real interest in the determination and was not given adequate notice or that one was not able to present certain evidence before for reasons beyond his or her control. Failure to appear at a hearing shall not be deemed to be a waiver of the right to be provided with a copy of the findings of fact, final determination and order or to proceed otherwise in any manner prescribed by law.

(d) Notice. When the commissioner schedules a hearing, notice thereof will be mailed to the parties. The notice will include a statement of the time, place and nature of the hearing, the legal authority under which the hearing is to be held, the statutes and rules involved and a short, plain statement of the matters asserted. The notice will also state what the consequences will be if either party fails to attend the hearing or submit additional information.

(e) 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. Such permission shall be freely granted in the interest of expediting the proceeding. Prefiled testimony shall be sworn to by the witness and subject to cross-examination.

(3) When necessary, in order to prevent undue prolongation of the hearing, the hearing officer may limit the number of times any witness may testify, the repetitious examination or cross-examination of witnesses, or the amount of corroborative or cumulative testimony.

(4) 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.

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

(6) 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 Office of General Services. Any party excepting thereto prior to the conclusion of the hearing, if such fact be taken notice of during the hearing, or a party who shall make written application therefor at any time prior to 10 days after service or notice of findings apprising him of such noticed fact, shall be afforded an opportunity to dispute the fact.

(7) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence, if the hearing officer finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. All other circumstances of the making of the memorandum or record, including lack of personal knowledge by the maker, may be proved to affect its weight, but they shall not affect its admissibility. The term business includes a business profession, occupation and calling of every kind.

(8) Where a public officer is required or authorized, by special provisions of law, to make a certificate or affidavit to a fact ascertained, or an act performed by him in the course of his official duty, and to file or deposit in a public office of the State, the certificate or affidavit so filed or deposited is prima facie evidence of the facts stated.

(9) A statement signed by an officer or a qualified agent or representative having legal custody of specified official records of the United States, or of any state, county, town, village or city or of any court thereof, or kept in any public office thereof, that he has made diligent search of the records and has found no record or entry of a specified nature, is prima facie evidence that the records contain no such record or entry, provided that the statement is accompanied by a certificate that legal custody of the specified official records belongs to such person, which certificate shall be made by a person described in rule 4540 of the Civil Practice Law and Rules of the State of New York.

(10) All maps, surveys and official records affecting real property, which have been on file in the State in the office of the register of any county, any county clerk, any court of record or any department of the State or City of New York for more than 10 years, are prima facie evidence of their contents.

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

(12) All written statements, charts, tabulations and similar data offered in evidence the hearing shall, upon a showing satisfactory to the hearing officer of their authenticity relevancy, and materiality, be received in evidence and shall constitute a part of the record.

(13) Where the testimony of a witness refers to a statute, report or document, the hearing officer shall, after establishing the identity of such statute, report or document, determine whether the same shall be produced at the hearing and physically be made a part of the record or shall be incorporated in the record by reference.

(f) Record. A written transcript or official record of the hearing will be made and copies will be made available to the parties at cost as provided by section 302 of the State Administrative Procedure Act.

(g) Report. Within 45 days from the date of availability of the transcript of the hearing, the hearing officer will write a report and make recommendations dispositive of the problem.

(h) Findings and conclusions. The hearing officer's report will be submitted to the commissioner who will make and serve an Order setting forth his findings of fact and his conclusions pursuant to section 307 of the State Administrative Procedure Act.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 274.8