N.Y. Comp. Codes R. & Regs. tit. 6 § 481.10

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

Section 481.10 - Hearing procedures

(a) Application of Part. This section applies to hearings conducted by the department on disputed fees and penalties provided for in this Part.

(b) Notice of hearing.

(1) The department will provide notice to the person requesting the hearing pursuant to section 481.9(k) of this Part sent by certified mail not less than 15 business days prior to the hearing date.

(2) The form of the notice will be as specified by the department, but must contain the date, time and location of the hearing.

(c) Hearing participation. The parties to a hearing shall be:

(1) the person requesting the hearing pursuant to section 481.9(e) of this Part; and

(2) department staff.

(d) Rights of parties. The rights of parties are:

(1) A party desiring to participate at the hearing may do so in person, or by attorney or by representative presenting written authorization to represent that party.

(2) A party has the right to present relevant written and oral argument on issues of law and fact, to present relevant evidence and to cross-examine witnesses of other parties.

(3) Any party initiating motions, requests, briefs or other written material in connection with the hearings must serve such material on the other party and the ALJ.

(4) A party must be present on a timely basis to present evidence, cross-examine witnesses or receive notice of scheduling of subsequent sessions. Failure to be present at a hearing session without notifying the ALJ in advance, will be deemed a waiver of the right to be heard.

(e) The ALJ shall have power to:

(1) rule upon all motions and requests;

(2) set the time and place of the hearing and recesses and adjournments;

(3) administer oaths and affirmations;

(4) issue subpoenas;

(5) summon and examine witnesses;

(6) establish rules for and direct disclosure at the request of any party or upon the ALJ's own motion consistent with the general principles of article 31 of the Civil Practice Law and Rules (CPLR) as applied to administrative fact-finding proceedings, if, in the discretion of the ALJ, such disclosure will aid in narrowing the issues and not unduly delay the proceedings;

(7) admit or exclude evidence including the exclusion or protection of evidence on grounds of privilege or confidentiality;

(8) preclude irrelevant or unduly repetitious, tangential, speculative testimony or argument; and

(9) take any measures necessary for maintaining order and the efficient conduct of the hearing.

(f) Prehearing conference.

(1) A prehearing conference will precede the hearing. The functions of the conference are to narrow or resolve issues concerning the disputed fees and penalties raised by the parties and to define and limit the scope of issues remaining as subjects for the hearing sessions. The ALJ may direct disclosure between the parties and outline the conduct of the hearing.

(2) Following the conference, the ALJ will determine and advise the parties of the issues to which testimony and other evidence in the adjudicatory session will be limited.

(3) The ALJ will summarize for the record the action taken at the conference and incorporate into the record any admissions, stipulations or agreements which were made by the parties.

(4) If, as a result of the conference, the ALJ determines that there are no disputed issues of fact, but only issues involving the interpretation or application of either the regulations or article 72 of the ECL, the ALJ shall prepare a report summarizing the material facts and disputed issues and refer the matter to the general counsel for a declaratory ruling, in accordance with Part 619 of this Title. A copy of this report will be served on the parties and the hearing will be cancelled. The parties may file briefs with the general counsel on the issues set forth in the report.

(g) Conduct of the hearing.

(1) Order of events. The ALJ will have discretion to adjust the order of events and establish procedures to promote the conduct of a fair and efficient hearing. In general, the order of events at a hearing shall be as follows:

(i) Formal opening: the ALJ will convene the hearing by opening the record, identifying the issues involved and making appropriate procedural announcements as necessary.

(ii) Noting appearances: the ALJ will call the name of the person who has requested the hearing and note the appearance of counsel, if any.

(iii) Opening statements: prior to the commencement of the evidentiary hearing each party may offer a brief opening statement of position on the issues in dispute.

(iv) Admission of evidence: the person requesting the hearing will present its direct case first. The department will then present its case. Evidence will be confined to that which is relevant to the issues identified by the ALJ.

(v) Closing statements and briefs: closing statements of position will be taken in the same manner as opening statements. At the concluding session of the hearing the ALJ will determine whether to allow the submission of written post-hearing briefs and proposed findings of fact. The hearing record will be officially closed upon the receipt of additional technical data or other material agreed at the hearing to be made available after the hearing, or the submission of briefs and reply briefs, proposed findings of fact, memoranda, and exceptions, if any, by the various parties, whichever occurs later. The ALJ will notify the parties by regular mail upon official closing of the hearing record.

(2) Motions and requests may be made at any time during the course of a hearing and will be part of the record.

(3) The ALJ will make findings of fact and conclusions based on the record and will forward a hearing report to the commissioner for final decision. Where the ALJ has permitted parties to submit proposed findings of fact, the hearing report shall include a ruling on each proposed finding.

(4) Except as specified elsewhere in this Part, all papers connected with a hearing may be served by first class mail.

(h) Subpoenas.

(1) In the case of a party not represented by an attorney:

(i) a subpoena for a witness during the course of a hearing shall be issued at the discretion of the ALJ; and

(ii) a subpoena involving specified records (subpoena duces tecum) shall be issued by the ALJ only when the party applying for such subpoena provides a written showing of necessity. Such subpoena shall designate as specifically as possible the books, papers or other materials to be produced by the party against whom the subpoena is served.

(2) Service of a subpoena will be the responsibility of the party requesting the subpoena.

(3) If a party or witness fails to respond to a subpoena personally served, the default will be noted in the hearing record. If the testimony involved is essential for the completion of a party's case, the hearing may be adjourned, until the party requesting or issuing the subpoena has had a reasonable opportunity to obtain compliance with the subpoena in accordance with applicable law.

(4) Nothing in this Part limits the authority of an attorney of record for any party to issue subpoenas under the provisions of section 2302 of the CPLR.

(i) Stipulations.

(1) At any time after publication of a notice of hearing, the ALJ may request that the parties attempt to stipulate to an agreement that will resolve specified issues and result in withdrawal of objections, limiting the scope of subject matter or discontinuance of the hearing.

(2) Such stipulations will be incorporated into the record of the hearing or agreed to in writing by the involved parties and filed with the ALJ.

(3) Such stipulations do not alter the responsibility of the commissioner to make a determination consistent with all applicable laws.

(j) Record of the hearing.

(1) Except as provided for in paragraph (2) of this subdivision, all evidentiary proceedings at the hearing will be electronically recorded.

(2) Any party, with the approval of the ALJ, may arrange for a certified reporter to produce a stenographic transcript of the hearing. When a stenographic transcript is made, an original transcript must be delivered to the ALJ at the expense of the party ordering the transcript.

(3) The ALJ will file with the commissioner a report and a complete record of the hearing which will include:

(i) the statement of issues, request for hearing, all notices (including a notice of hearing) and motions;

(ii) the electronic record of the hearing, the exhibits entered into evidence and any written transcript, if one was made;

(iii) any admissions, agreements or stipulations;

(iv) a statement of matters officially noticed;

(v) offers of proof, objections and rulings; and

(vi) proposed findings, if any.

(k) Evidence and burden of proof.

(1) All evidence submitted must be relevant. However, other legal rules of evidence observed in courts need not be strictly applied. Hearsay evidence may be admitted if a reasonable degree of reliability is shown.

(2) Evidence otherwise relevant may be excluded if its value as proof is substantially outweighed by a potential for unfair prejudice, confusion of the issues, undue delay, waste of time or needless presentation of repetitious or duplicate evidence.

(3) Where part of a document is offered as evidence by one party, any party may offer the entire document as evidence.

(4) Each witness must be sworn or make an affirmation before testifying. Opening, closing and other unsworn statements are not evidence they will be considered as arguments bearing on evidence.

(5) The person having to pay an annual program fee or penalty has the burden of proving, by a preponderance of the evidence, that it is entitled to the relief requested.

(6) The burden of proof to sustain a motion will be on the party making the motion.

(7) All decisions, determinations or orders must be made upon consideration of the entire record.

(l) Official notice.

(1) The ALJ or the commissioner may take official notice of a fact not subject to reasonable dispute if it is either generally known or can be accurately and readily verified in a generally accepted reference prior to or following the close of the hearing record.

(2) If the ALJ or the commissioner intends to take official notice of a material fact which does not appear in the hearing record and of which judicial notice could not be taken, every party must be given notice and an opportunity to dispute the fact and its materiality.

(m) Communication with the ALJ or commissioner in the absence of other parties (ex parte rule).

(1) No party will directly or through a representative communicate with the ALJ or the commissioner in connection with any issue without providing notice and an opportunity for all parties to participate.

(2) The ALJ or the commissioner must not directly or through a representative communicate with any party in connection with any issue without providing notice and an opportunity for all parties to participate. However, any party may ask for a clarification of procedures from the general counsel's office. The ALJ or commissioner may request aid and advice from any member of the department other than the staff acting as parties to the case.

(n) Final decision.

(1) The commissioner's decision will be made within 30 business days after the official closing of the hearing record. It will be sent to the person requesting the hearing and the attorney of record, if any, by certified mail. A copy of the decision will also be forwarded to the department staff.

(2) The commissioner's decision must be made upon consideration of the report and complete record, supported by substantial evidence and will be in writing. It will state the reasons for the action taken.

(o) Special provisions.

(1) At any time prior to issuing the final decision on the disputed fees or penalty, the commissioner or the ALJ may direct that the hearing record be reopened. This may be done to secure additional information or data or to consider significant new evidence.

(2) Tape recording or televising of a hearing for rebroadcast is prohibited by section 52 of the Civil Rights Law.

(p) Recusal. A party may file a written motion and supporting affidavits, with the ALJ, requesting the ALJ be recused. The ALJ's denial of the motion may be appealed to the commissioner within five days of the ALJ's ruling.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 481.10