N.Y. Comp. Codes R. & Regs. tit. 9 § 2051.3

Current through Register Vol. 46, No. 45, November 2, 2024

Section 2051.3 - Hearings

(a) Definitions.

(1) The term administrative law judge means any person appointed as a hearing officer or examiner to hear proceedings in accordance with the provisions of the law and to conduct such other and further hearings in connection therewith as may be required, and to report findings to the commissioner or the district rent administrator as the case may be.

(2) The term chief administrative law judge shall mean that administrative law judge designated to supervise the administrative law judges and designated as the chief of the hearings bureau.

(3) Any word or term which is defined in the law or regulations shall have the same meaning when used herein.

(4) When used in this Part, unless a different meaning clearly appears from the context, the term law shall mean and include any one or more of the following: the Rent Stabilization Law, the Emergency Tenant Protection Act of 1974, the New York City Rent and Rehabilitation Law, the Emergency Housing Rent Control Law, and all amendments thereto. The term regulationshall mean and include any one or more of the following: the Rent Stabilization Code, the State and City Rent and Eviction Regulations and the Emergency Tenant Protection Regulations.

(b) When held. Hearings shall be held in all cases in which they are mandated by law. Additionally, hearings shall be held at the direction of the commissioner, the commissioner's designee, a district rent administrator, the counsel, a deputy counsel, or a bureau chief whenever necessary to determine facts in dispute. A hearing need not be held when the record is complete based on written submissions. Where a hearing has been directed, it shall be scheduled promptly.

(c) Notice of hearing. All parties shall be given reasonable notice of such hearing, which notice shall include:

(1) a statement of the time, place and nature of the hearing;

(2) a statement of the legal authority and jurisdiction under which the hearing is to be held;

(3) a reference to the particular sections of the statutes and rules involved, where possible;

(4) a short and plain statement of matters asserted.

Upon application of any party to the administrative law judge, a more definite and detailed statement shall be furnished whenever the administrative law judge finds that the statement is not sufficiently definite or not sufficiently detailed. The finding of the administrative law judge as to the sufficiency of definitiveness or detail of the statement, or the failure or refusal to furnish a more definite or detailed statement, shall not be subject to judicial review in the first instance. Any statement furnished shall be deemed, in all respects, to be a part of the notice of hearing.

(d) Powers of administrative law judges and conduct of hearing.

(1) Generally, administrative law judges are authorized to:

(i) administer oaths and affirmations;

(ii) on their own motion, at the discretion of the administrative law judge or at the request of any party, sign and issue subpoenas requiring attendance and giving of testimony by witnesses and the production of books, papers, documents and other evidence, and said subpoenas shall be regulated by the Civil Practice Law and Rules. Nothing herein contained shall affect the authority of an attorney for a party to issue such subpoenas under the provisions of the Civil Practice Law and Rules;

(iii) provide for the taking of testimony by deposition and to fix appropriate terms and conditions therefor;

(iv) regulate the course of the hearings, set the time and place for continued hearings, and fix the time for filing of briefs and other documents; and

(v) request that the parties appear and confer to consider the simplification of the issues, or direct appearance for the clarification of issues.

(2) Conduct of hearing.

(i) The administrative law judge shall not be bound by common law or statutory rules of evidence or by technical or formal rules or procedure. The administrative law judge shall conduct the hearing in such order and manner and with such methods of proof and interrogation as he deems appropriate to ascertain the substantial rights of the parties. All parties shall be accorded full opportunity to present such testimony and to introduce documentary or other evidence as may be pertinent. At the commencement of the hearing, the administrative law judge shall identify all parties present and may make an opening statement describing the nature of the proceeding, the issues, and the manner in which the hearing shall be conducted. No administrative law judge shall participate in any hearing in which he has an interest. If a party files a timely and sufficient affidavit of personal bias or disqualification of an administrative law judge, the matter shall be referred to and decided by the chief administrative law judge or, in the absence of the chief administrative law judge, by the deputy counsel or an assistant deputy counsel. Challenges to the chief administrative law judge shall be referred to and decided by the deputy counsel for rent administration or by an assistant deputy counsel. The hearing shall generally be conducted in accordance with the New York State Civil Service Commission publication, Revised Manual No. 16 (1972), entitled: Manual for Hearing Officers in Administrative Adjudication in the State of New York, authored by Louis J. Naftalison.

(ii) Appearances.

(a) All parties to the proceeding may be present and/or may appear by attorney, agent or representative and shall be allowed to present testimony in person or by counsel, call, examine and cross-examine witnesses.

(b) f a notice of hearing has not been delivered to a party, the DHCR in its discretion may adjourn a scheduled hearing to determine whether that party expects to attend a hearing, or whether the complaint should be dismissed for administrative convenience, default entered, or other appropriate action taken.

(c) If a respondent fails to appear at the duly noted time and place of the hearing, and the hearing is not adjourned, the hearing shall proceed on the evidence in support of the complaint. If an applicant or complainant fails to appear, the administrative law judge may similarly note the default on the record and go forward with the respondent's case, if any, to controvert any prima facie case made. Upon application in writing or on his own motion, the administrative law judge or chief administrative law judge may, for good cause shown, prior to an order, reopen or allow for continuation of the proceeding upon equitable terms and conditions.

(iii) New parties.

(a) In the discretion of the administrative law judge, any other person who has a substantial personal interest may be allowed to intervene as a party, in person or by counsel.

(b) The administrative law judge may require that any person not already a party be joined as a necessary party to the proceeding.

(c) In such joinder, the hearing shall be adjourned unless the person ordered to be joined is present and consents to waive service of notice of hearing and pleadings and to proceed as if he or she had been designated as such necessary party in the original complaint or application.

(d) In the event of such adjournment, the DHCR shall serve a new notice of hearing and copy of the complaint or application as amended upon the person so joined and upon all other parties, and shall also serve on the person so joined copies of the previous pleadings and a notice that the prior hearing record may be examined at the offices of the DHCR during normal business hours.

(e) Upon such waiver of notice by a person who is present, or upon service of such new notice of hearing and an amended complaint, the hearing shall proceed as if the party so joined had been designated in the original complaint or application.

(iv) Who shall conduct. Hearings shall be conducted by an administrative law judge designated by the DHCR. No person who shall have previously made the investigation, engaged in a prior formal conciliation proceeding or caused the notice of charges to be issued, shall act as an administrative law judge in such case.

(v) Procedure.

(a) The administrative law judge shall have full authority to control the procedure of the hearing, subject to these rules, and to rule upon all motions and objections, except motions to grant or dismiss the application or complaint. Effect shall be given to the rules of privilege recognized by law.

(b) Motions to grant or dismiss will be preserved on the record for the decision of the commissioner or the district rent administrator in an order after hearing; or, in extraordinary circumstances, after leave of the administrative law judge, said motion may be made and decided in the commissioner's discretion or at the discretion of the district rent administrator in an interlocutory ruling.

(c) The administrative law judge, on motion of a party or on his or her own motion, may call and examine witnesses, direct the production of papers or other matter, and introduce documentary or other evidence. The administrative law judge may exclude from the hearing room a witness, other than a party or complainant, who has not yet testified.

(d) In the interest of the prompt administration of justice and without prejudice to the substantial rights of any party, and in the discretion of the administrative law judge, any issue in a case or any other issue related thereto may be heard and decided, though not specifically indicated in the notice of hearing.

(e) All oral testimony shall be given under oath or affirmation, and a record of the proceeding shall be made and kept. Irrelevant or unduly repetitious evidence or cross-examination may be excluded. Evidence supplemental to that introduced at the hearing may be made part of the record.

(f) A determination may not be based on settlement negotiations which do not result in a stipulation of settlement. Unsuccessful attempts at settlement shall not be received in evidence except as to the issue of good faith where good faith is an issue in the proceeding.

(g) Evidence shall not be received in camera except at the discretion of the administrative law judge in extraordinary circumstances. However, where desirable, the administrative law judge in consultation with counsel may provide for the use of devices, such as deletion of names and coding, in order to protect personal privacy or information.

(h) The initial burden of proof shall be upon the party who initiated the proceeding.

(vi) Stipulations. Written stipulations may be introduced in evidence if signed by the person sought to be bound thereby or by that person's attorney-at-law. Oral stipulations may be made on the record at open hearing. The entire record may be in the form of a stipulation, submitted to the designated administrative law judge or the chief administrative law judge without the convening of a hearing.

(vii) Continuations, adjournments and substitutions of administrative law judge.

(a) The DHCR may postpone a scheduled hearing, or continue a hearing from day to day, or adjourn it to a later date or to a different place, by announcement thereof at the hearing or by appropriate notice to all parties. In the discretion of and upon such terms and conditions set by the administrative law judge, adjournment of a scheduled hearing may be granted upon affidavit of actual engagement before a higher tribunal or for good cause shown in writing. Except where an adjournment of a hearing is on consent of all other parties to the proceeding, a party's written request for an adjournment of a scheduled hearing must be received at least three business days prior thereto. Applications made thereafter, and which are not on consent, must be made by formal motion on the record at the hearing unless the administrative law judge directs otherwise.

(b) Whenever a case is assigned to an administrative law judge, the hearing or any adjourned hearing thereon shall continue before the same administrative law judge until a final disposition thereof, unless the case is transferred pursuant to motion or for good cause by the chief administrative law judge. Good cause shall include, inter alia, the absence, disability or disqualification of an administrative law judge. The hearing shall continue upon the previous record unless it can be shown that substantial prejudice will result therefrom.

(c) Each party, or his attorney, shall have the right to inspect the file, to rebut any evidence given, and to cross-examine other parties and witnesses, in person if practicable, inspect the report of the administrative law judge hearing the case and request a copy thereof.

(d) By order of the chief administrative law judge or the administrative law judge, a case may be transferred from one designated place of hearing to another for the convenience of parties or witnesses, and as the interests of justice may require.

(viii) The chief administrative law judge or the administrative law judge may sever a case or may consolidate two or more proceedings which have at least one ground in common where the interests of justice will be served and where there will be no prejudice to the substantial rights of any party. If two or more proceedings are consolidated, any applicable rules set forth herein shall apply.

(ix) The DHCR and parties, or their duly authorized representatives, may stipulate that a specified case involving an issue affecting in common certain claimants be designated as a test case, and that the parties be bound by any decision in such case, subject to the right of appeal. The stipulation shall be filed with the administrative law judge.

(x) Information from the DHCR's records may be officially noticed, and the case file, except for privileged items contained therein, shall be made available by the administrative law judge to the parties to the hearing or their attorneys for the necessary preparation and presentation of the case. All parties shall have the right to call, examine and cross-examine other parties and witnesses with regard to such information. The administrative law judge may take official notice of all facts of which judicial notice could be taken and of other facts within the specialized knowledge of the agency. When official notice is taken of a material fact not appearing in the evidence in the record, and of which judicial notice could not be taken, every party shall be given prior notice thereof and afforded an opportunity to dispute the fact or refute its materiality.

(xi) Motions and objections. Motions made during a hearing and objections with respect to the conduct of a hearing, including objections to the introduction of evidence, shall be stated orally, and shall be included in the record made of the hearing.

(xii) Oral arguments and briefs. The administrative law judge may permit the parties, their attorneys or representatives, the DHCR attorney, if any, and intervenors and interested organizations, to argue orally and to file briefs within such time limits as the administrative law judge may determine. All such briefs shall be filed in duplicate with the administrative law judge, with proof of service upon all counsel in the proceeding and parties appearing without counsel.

(xiii) Public hearings. Hearings shall be open to the public. The administrative law judge may exclude from the hearing room or from further participation in the proceeding any person who engages in improper conduct at the hearing or otherwise disrupts the proceeding, except a party to the proceeding, an attorney of record, or a witness engaged in testifying. In addition, the administrative law judge may take such other actions as are necessary to insure the proper conduct of the hearing.

(xiv) Incomplete record. The commissioner, the district rent administrator or the administrative law judge may, on a finding that the record is incomplete or fails to provide the basis for an informed decision, direct further hearing sessions for the taking of additional evidence or for other purposes. Such direction may be on the commissioner's or district rent administrator's or administrative law judge's own motion or on application of a party.

(xv) Ex parte communications. No person shall communicate with the administrative law judge subsequent to the commencement of a hearing on any matter relating to the case, other than a status inquiry, unless a copy of such communication is sent to all parties to the proceeding. If such a communication is made in violation of this rule, a copy of the communication, or a written summary if the communication was oral, shall be sent to all the parties by the administrative law judge.

(xvi)

(a) When an attorney represents a party at a hearing, the administrative law judge shall ascertain whether or not such attorney is appearing in a proceeding where attorney fees may be awarded by statute or regulation. If so, the administrative law judge may entertain a motion for an award of attorney's fees.

If such an award is requested, the administrative law judge shall require such attorney to submit an affidavit in support of his claim for fees, setting forth in detail:

(1) the total amount requested;

(2) the time spent in providing representation, subdivided into time spent:

(i) in case preparation;

(ii) at hearing; and

(iii) in post-hearing matters;

(3) the legal and factual complexities involved; and

(4) any other factors which may be deemed relevant to determination of the fee that should be allowed, including but not limited to a statement of the attorney's customary hourly rate, his background and particular qualifications.

(b) When an attorney has ceased to represent a party during the course of a proceeding, the DHCR shall have no obligation to notify said attorney of any determination reached in the matter and may refuse to entertain a request for attorney's fees for prior legal services to the party.

(xvii) Whenever any deaf person is a party to a hearing before the DHCR or a witness therein, the DHCR in all instances shall appoint a qualified interpreter of the deaf to interpret the proceedings to and the testimony of such deaf person. The DHCR shall determine a reasonable fee for all such interpreting services, which shall be a charge upon the agency.

(xviii) Investigation. Whenever an investigation, inspection, inquiry or other examination is necessary in deciding a case, the chief administrative law judge or an administrative law judge may request such investigation, inspection, inquiry or other examination to be made. A hearing may be adjourned pending receipt of the report of such investigation, inspection, inquiry, audit or examination. The provisions of subparagraph (x) of this paragraph shall apply to such report.

(xix) After the hearing is concluded, the administrative law judge shall review the evidence and briefs, if any, submitted by the parties, determine the credibility of the witnesses, and shall propose findings of fact relevant to the issues of the hearing. The administrative law judge shall prepare an official report which includes a summary of the testimony of the hearing, as well as proposed findings and conclusions, and shall prepare a proposed order for the commissioner or district rent administrator.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 2051.3