N.Y. Comp. Codes R. & Regs. tit. 9 § 133.18

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

Section 133.18 - [Effective until 1/7/2025] Administrative Law Judge Hearings

(a) Appearances.

(1) a respondent may appear in person or through representation by an attorney. The office may appear for a hearing by an attorney, by an employee of the Office of General Counsel under the general supervision of an attorney admitted to practice law in New York State, or by a law student in accordance with a student practice order issued by the Office of Administrative Hearings. If a party appears through representation by an attorney, service of papers shall be made upon the attorney. It will be the party's responsibility to notify all other parties if there is a change in representation.

(2) any person appearing on behalf of a party in a representative capacity may be required to show their authority to act in such capacity and shall file a notice of appearance.

(3) if a party fails to appear at the hearing and no adjournment has been requested and granted for cause, the administrative law judge shall recommend a default order.

(4) at any time before a decision is issued, the administrative law judge may relieve any party of the consequences of any default upon good cause shown.

(b) Consolidation and Severance.

(1) in proceedings which involve common questions of law, fact, or parties, the administrative law judge, upon their own initiative or upon motion of any party, may order a consolidation of actions or a joint hearing of any or all issues to avoid unnecessary delay and cost.

(2) the administrative law judge, to avoid prejudice or inconvenience, may order a severance of the issues at a hearing and hear testimony separately as to any issue in the proceeding.

(c) Intervention.

(1) At any time after the institution of a proceeding, the administrative law judge may, upon a verified petition and for good cause shown, and upon notice to the parties, permit a person to intervene as a party.

(2) The petition of any person desiring to intervene as a party shall state with precision and particularity:

(i) the petitioner's interest in the matter at issue;

(ii) the nature of the evidence petitioner intends to present and the names of witnesses, if any;

(iii) the nature of the argument petitioner intends to make; and

(iv) any other reason that petitioner should be allowed to intervene.

(d) Conduct of hearing and evidence.

(1) Each witness shall be sworn or given an affirmation.

(2) The rules of evidence need not be observed.

(3) Each party shall have the right to present relevant evidence and to cross-examine witnesses, offer rebuttal evidence and examine any document or item offered into evidence.

(4) Official notice may be taken of all facts of which judicial notice could be taken and of other facts within the specialized knowledge of the office.

(5) All evidence, including records, documents and memoranda in the possession of the office of which it intends to introduce at the hearing, shall be offered and made a part of the record. All such documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference. In case of incorporation by reference, the materials so incorporated shall be available for examination by the parties before being received in evidence.

(6) Except as otherwise provided by statute, the burden of proof shall be on the party who initiated the proceeding. No decision, determination, or order shall be made except upon consideration of the record as a whole or such portion thereof as may be cited by any party to the proceeding and as supported by and in accordance with a preponderance of the evidence.

(7) The administrative law judge may not compel the disclosure of the identity of any person employed by the office, who made a report, or any person who provided information in an investigation of any such report.

(8) Complaints by a person outside of the office may be introduced into evidence by either party and their production may not be required by the administrative law judge even if the complainant is a witness.

(9) Evidence at a hearing may include, but is not limited to, witness testimony, documents, and objects. Documents may include, but are not limited to, affidavits or affirmations, business records or government records, photographs, and other documents.

(10) Relevant and reliable evidence, including but not limited to records prepared by the Office or another governmental agency in the ordinary course of business, may be admitted without regard to technical or formal rules or laws of evidence applicable in the courts of the State of New York. As used in this paragraph, records means any information kept, held, filed, produced or reproduced, in any physical or digital form including, but not limited to, reports, statements, examinations, memoranda, opinions, affidavits, affirmations, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, policies, rules, regulations or codes.

(e) Record.

(1) a verbatim record of the proceedings shall be made by whatever means the office deems appropriate.

(2) the record of the hearing shall include: the notice of hearing, statement of charges, if any, petition for a hearing before the administrative law judge, if any, answer and any other responsive pleadings; motions and requests submitted, and rulings thereon; the transcript or recording of the testimony taken at the hearing; exhibits; stipulations, if any; a statement of matters officially noticed, except matters so obvious that a statement of them would serve no useful purpose; briefs or objections as may have been submitted and filed in connection with the hearing and any decisions rendered.

(f) Prior to a hearing, the office may, at its discretion, request a stay of any proceeding and the board or those designated by them shall grant such request. The initiation of any action, by or on behalf of the office, in state or federal court on matters directly or indirectly related to the subject of any pending administrative proceeding shall, upon a request by the office, provide sufficient basis for an immediate stay of such administrative proceeding.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 133.18

Adopted New York State Register April 26, 2023/Volume XLV, Issue 17, eff. 4/6/2023 (Emergency)

Amended New York State Register August 16, 2023/Volume XLV, Issue 33, eff. 8/4/2023, exp. 12/4/2023 (Emergency)

Adopted New York State Register December 20, 2023/Volume XLV, Issue 51, eff. 12/4/2023, exp. 4/2/2024 (Emergency)

Adopted New York State Register September 25, 2024/Volume XLVI, Issue 39, eff. 9/10/2024, exp. 1/7/2025 (Emergency)