N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 645-4.9

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

Section 645-4.9 - The hearing

(a) Referral to the department. All proceedings where the administrative penalty sought by the commission exceeds $5,000 shall be referred to the department for processing in accordance with the procedure specified in ECL, section 71-1709; provided, however, that following the processing of such proceedings, the commission shall make appropriate determinations and issue an order in lieu of action by the department.

(b) Hearing officer.

(1) All proceedings where the administrative penalties sought are less than or equal to $5,000 may either be referred to the department, as provided above, or the commission may appoint a hearing officer who must be an attorney admitted to practice law in the State of New York, who shall preside over such hearing and report to the commission regarding the hearing.

(2) A person may not serve as a hearing officer if such person:

(i) has any financial interest, direct or indirect, in any matter involved in the proceedings;

(ii) is related by blood or marriage to any party;

(iii) has participated in any investigation with respect to the subject matter of the hearing or in the development of evidence introduced at the hearing; or

(iv) has any personal interest in the matter involved in the proceeding.

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

(4) Subject to review by the commission 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.

(5) Upon being notified that a hearing officer declines or fails to serve, or in the case of death, resignation or removal of the hearing officer, or on its own initiative, the commission may designate a successor hearing officer who may continue with the proceeding. Any party may file with the commission a motion, together with a supporting affidavit, no later than five days prior to the date set for hearing in the notice of hearing, that the hearing officer be removed on the basis of personal bias.

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

(c) 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 complaint or UAC 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.

(d) Consolidation, nonjoinder, misjoinder and severance.

(1) In a proceeding which involves common questions of fact, the hearing officer, upon his own initiative or upon motion of any party, to avoid unnecessary delay and cost, may order a consolidation of actions or a joint hearing of any or all issues.

(2) Nonjoinder of a necessary party, as necessary party is defined by the CPLR, is a ground for dismissal of the hearing without prejudice, unless the hearing officer, in the interest of justice, allows the hearing to proceed without such party or such party is joined.

(3) Misjoinder of parties is not a ground for dismissal of the hearing. Parties may be added or dropped by the hearing officer, on motion of any party or on his own initiative, at any stage of the hearing and upon such terms as may be just.

(4) The hearing officer, to avoid prejudice or for convenience, may order a severance of the hearing and hear separately any issue or any party to the proceeding.

(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 or may be required upon motion of any party by written directive 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 commission.

(7) Samples may be displayed at the hearing and may be described for purposes of the record, but need not be admitted in evidence as exhibits.

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

(9) All written statements, charts, tabulations and similar data offered in evidence at 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.

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

(11) A hearing shall be conducted as nearly as practicable in the manner of a trial in a court of law.

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

(g) 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 commission may use whatever means it 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 hearing, the complaint or UAC and any other pleadings; motions and requests submitted, and rulings thereon; the transcript or recording of the testimony taken at the hearing; exhibits submitted and filed therein; stipulations, if any; a statement of matters officially noticed, except matters so obvious that a statement of them would serve no useful purpose; 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 commission, as appropriate, and upon payment of the fees allowed by law.

N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 645-4.9