N.Y. Comp. Codes R. & Regs. tit. 9 § 2051.4

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

Section 2051.4 - Miscellaneous procedural matters

(a) Subpoenas and subpoenas duces tecum.

(1) Who may issue. The commissioner, the commissioner's designee, an administrative law judge, DHCR's counsel, a deputy counsel or an assistant deputy counsel may issue subpoenas and subpoenas duces tecum whenever necessary to compel the attendance of witnesses or to require the production for examination of any books, payrolls, rent rolls, ledgers, correspondence, documents, papers or any other evidence relating to any matter under investigation or in question before the DHCR.

(2) When and where returnable. Subpoenas and subpoenas duces tecum issued by the designated officers and employees of the DHCR may be made returnable at any stage of any investigation or proceeding pending before the division. Documents, books and records required for a public hearing before an administrative law judge may be subpoenaed and made returnable prior to such hearing at such time and place stated in the subpoena by the issuing officer, or made returnable at the time and place designated for hearing.

(3) Application for a subpoena.

(i) Subpoenas and subpoenas duces tecum may be issued by the designated officers and employees of the DHCR upon the application of a party, his representative or a party's attorney. Issuance of a subpoena duces tecum at the instance of a party shall depend upon a showing of necessity.

(ii) Application for a subpoena may be made at any stage in the proceeding and should be made in writing. The administrative law judge may, at his discretion:

(a) cause the subpoena requested to be issued;

(b) by hearing notice or amended hearing notice direct the production of all or some of the witnesses or material sought and within the control of a party to the proceeding at the hearing; or

(c) advise the attorney for a party who has sought the issuance of the subpoena to proceed in accordance with section 2302 of the Civil Practice Law and Rules (CPLR). Said advisement shall be in writing and on notice to all other parties or placed on the record.

(iii) Where a party to the proceeding fails to produce evidence and/or witnesses found to be within its control, and which were directed by hearing notice or by the administrative law judge to be produced, the administrative law judge may then cause to be issued and served a subpoena for the production thereof, or the administrative law judge may draw a negative inference from the failure to produce.

(4) Subpoenas by attorneys.

(i) An attorney appearing for a party may issue and cause to be served subpoenas or subpoenas duces tecum returnable at a hearing before an administrative law judge in accordance with section 2302 of the Civil Practice Law and Rules.

(ii) Motions to enforce, quash or modify a subpoena issued pursuant to section 2302 of the CPLR shall be made in a court of competent jurisdiction. However, upon an offer of proof, the administrative law judge may cause to be issued a subpoena or direct a party to produce all or any part of the requested matter. Upon failure to comply therewith in whole or in part, the administrative law judge may cause enforcement actions to be undertaken in whole or in part to obtain compliance, and/or the administrative law judge may draw a negative inference from the failure to comply.

(iii) Where the attorney for a party issues a subpoena and thereafter applies for judicial enforcement thereof, the administrative law judge may, at his discretion, continue the hearing to take testimony from other witnesses. At his discretion, or where the issued subpoena relates to a final witness, the administrative law judge may grant an adjournment but shall require that, within a period not in excess of 10 days, the party issuing the subpoena present proof to the administrative law judge that it has instituted a proceeding to compel compliance. The administrative law judge may thereafter require proof of diligent pursuit of the matter and shall continue the hearing within 30 days of notification of resolution of the compliance proceeding.

(5) Depository officer. An officer or employee of the DHCR may be designated as a depository officer, who shall receive and hold documents, books and records subpoenaed and/or produced at said hearing and required for use during the period between the commencement of a public hearing and any adjourned date thereof. Such records shall be made available for inspection and copying during the ordinary business hours of the DHCR. If produced at hearing, the administrative law judge assigned to the matter shall be the depository officer.

(6) Public bodies. Absent a specific statute or rule to the contrary, a subpoena duces tecum directed to another public body or agency does not require approval of the court.

(7) Witness or mileage fees. Where a subpoena or subpoena duces tecum is issued at the instance of a party or by an attorney, the cost of service and witness and mileage fees and the burden of service shall be borne by such party or attorney. Such witness and mileage fees shall be the same as are paid at trials in the New York State Supreme Court.

(b) Depositions and telephone testimony.

(1) Depositions. An administrative law judge may authorize a deposition to be taken on oral or written questions in accordance with the provisions of CPLR section 3117(a)(3), and shall admit such deposition into evidence at a hearing in lieu of the personal appearance and testimony of the deponent at the hearing, subject to the following conditions:

(i) All parties and counsel have been offered a reasonable opportunity to participate in the taking of the deposition and to cross-examine thereat.

(ii) The deposition was taken before any person authorized to administer an oath in the place where the deposition is taken and was either subscribed and sworn to by the deponent or certified as accurate by the stenographer.

(iii) The absence of cross-examination shall not be a bar to the admission of such deposition; provided, however, that, if justice so requires, the deponent may be subject to further inquiry by additional deposition.

(iv) Any other reasonable condition fixed by the administrative law judge.

(2) Testimony by telephone. With the consent of all parties and where necessary to prevent an otherwise unavoidable adjournment or for other good cause shown, the administrative law judge may permit the testimony of a witness to be taken by telephone, subject to the following procedure:

(i) it is practicable to reach the witness by telephone call;

(ii) a person within the hearing room can testify that the voice of the witness is recognized;

(iii) the administrative law judge, reporter, if any, and respective attorneys can hear the questions and answers;

(iv) the witness is placed under oath and testifies that he or she is not being coached by any other person; and

(v) the testimony is limited in scope.

(c) Settlements and withdrawals.

(1) Stipulation. At any time the parties may stipulate to settle the case subject to the approval of the commissioner or the district rent administrator. Such stipulation shall either be in writing, signed by the parties or their attorneys, or be placed on the record at a public hearing.

(2) Terms.

(i) The stipulation should contain precise and unambiguous terms.

(ii) The stipulation should provide that it is subject to the issuance of an order or notice thereon by the commissioner or district rent administrator incorporating its operative terms.

(3) Order after stipulation or withdrawal.

(i) An order after stipulation or withdrawal of a proceeding may be signed and issued by the commissioner or district rent administrator without a hearing and without findings of fact.

(ii) Such order may be enforced in the same manner as any order after hearing issued by the commissioner or district rent administrator.

(d) Orders after hearing.

(1) Form. An order issued after hearing shall set forth the findings of fact and conclusions of law or reasons for the decision or determination of the commissioner or district rent administrator.

(2) Service. Copies of orders signed by the commissioner or district rent administrator shall be sent to all parties, including intervenors, or to their attorneys or representatives, if represented. A copy of the order may also, where warranted, be delivered to the Attorney General, the Secretary of State, or to such public officers as the DHCR deems proper.

(3) Filing. Copies of all orders rendered after a hearing shall be filed at the administrative offices of the DHCR and at the office where the complaint or application was filed.

(e) Compliance investigation.

(1) Investigation. At any time after the date of a settlement agreement, an order after hearing, an order after stipulation or otherwise, and at any other times in its discretion, the DHCR may investigate whether the parties are complying with the terms of such agreement or order.

(2) Action. Upon a finding of noncompliance, the DHCR may take appropriate action to assure compliance.

(f) Rules and regulations.

(1) Any rule or regulation established governing practice and procedure before administrative law judges and the DHCR may be added to, amended, modified, rescinded or superseded by the DHCR at any time in accordance with the requirements of law.

(2) These rules and regulations shall be construed liberally to effectuate the purposes and provisions of the law.

(3) These rules and regulations, and any addition, amendment, modification, rescission or supersedure thereof, shall be available to the public at all offices of the DHCR and at the hearings bureau.

(g) Record.

(1) The record in a proceeding before the DHCR shall include:

(i) all notices, pleadings, motions, intermediate rulings;

(ii) evidence presented;

(iii) a statement of matters officially noticed, except matters so obvious that a statement of them would serve no useful purpose;

(iv) questions and offers of proof, objections thereto, and rulings thereon;

(v) proposed findings and exceptions, if any; and

(vi) any decision, determination, opinion, order or report rendered.

(2) The DHCR shall make a complete record of all adjudicatory proceedings conducted before it. For this purpose, the DHCR may use whatever means it deems appropriate, including but not limited to the use of stenographic transcriptions or electronic recording devices. Upon request made by any party upon the agency within a reasonable time, but prior to the time for commencement of judicial review, or its giving notice of its decision, determination, opinion or order, the DHCR shall prepare the record together with any transcript of proceedings within a reasonable time, and shall furnish a copy of the record and transcript or any part thereof to any party as he may request. The party making the request shall bear full responsibility for the cost of the preparation and furnishing of such transcript or any part thereof, including the cost of an original for the division. Any party requesting a copy of the record and/or any transcript made, or portion thereof, shall be required to pay the costs thereof.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 2051.4