Chapter I - Subchapter C

§1-22 The Petition.

SUFFICIENCY OF THE PETITION

Purpose

The purpose of administrative pleadings is notice, not jurisdiction, and a petition is sufficient if it affords notice of the matters to be adjudicated. Dep't of Buildings v. Owner, Occupants and Mortgagees of 31 West 11th Street, Apartments 6A and 6B, New York, OATH Index No. 990/94 (Aug. 26, 1994), aff'd, BSA No. 165-94-A, reprinted in 80 Bulletin of Bd. of Stds. and Apps. 193 (May 4, 1995), aff'd sub nom. Hiesiger v. City of New York, NYLJ, Nov. 6, 1996, at 26, col. 1 (Sup. Ct. N.Y. Co.).

Pleadings do not serve a jurisdictional purpose in administrative proceedings, only a notice-giving function. Dep't of Buildings v. 2837-39 Decatur Avenue, Bronx, New York, OATH Index No. 349/94 (Jan. 10, 1994).

Standard

In an administrative proceeding, the allegations need only be reasonably specific, in light of all relevant circumstances, to apprise the party who is the subject of the hearing to allow for the preparation of an adequate defense.  ALJ found amended petition was sufficient to satisfy due process.  Dep’t of Housing Preservation & Development v. Jusewitz, OATH Index No. 347/10, mem. dec. (Feb. 9, 2010) (citing Garofalo v. Dowling, 223 A.D.2d 770, 772 (3d Dep't 1996) and Block v. Ambach, 73 N.Y.2d 323, 333 (1989)).

Specificity Of Charges

“Pleading requirements are not some kind of whim of an individual administrative law judge. The requirements in the rules to plead with specificity are in place to ensure a well-organized trial, and to enable the adversary and the tribunal to discern whether the claims are proper and timely or subject to challenge” Dawe v. 20 Beaver Street LLC, OATH Index Nos. 237/06 & 335/06, mem. dec. (Oct. 20, 2006), reversed in part and remanded, Loft Bd. Order No. 3161 (Feb. 15, 2007).

 

ALJ declined to conform the charges to the evidence holding that charges in administrative proceedings must “apprise the party whose rights are being determined of the charges against him . . . to allow for the preparation of an adequate defense.” Dep’t of Correction v. Hamil, OATH Index Nos. 1213/18 & 1215/18 (July 9, 2018), aff’d, NYC Civ. Serv. Comm’n Case No. 2018-1174 (Mar. 14, 2019) (quoting Block v. Ambach, 73 N.Y.2d 323, 333 (1989) and D’Ambrosio v. Dep’t of Health, 4 N.Y.3d 133, 140 (2005)).  In an administrative trial, as in a criminal trial, “[n]o person may lose substantial rights because of wrongdoing shown by the evidence, but not charged.” Id. (quoting Murray v. Murphy, 24 N.Y.2d 150, 157 (1969)).

Charges dismissed for insufficient notice where it would have been impossible for respondents to decipher the specific counts brought against them because the petition did not delineate the 30-receipt violation counts by date or invoice number, explain the ways in which individual receipts were deficient, or set forth how each respondent violated the rule. Dep’t of Consumer Affairs v. Riverdale Towing Associates, Inc., OATH Index No. 1848/17 (July 31, 2017).

Petition alleging false statements at official interview which identified one or two specific statements prefaced by the phrase “including but not limited to” put officers on notice that the specified remarks were not the only false or misleading statements that they were accused of making. Dep’t of Correction v. Jackson, OATH Index Nos. 2927/10, 2929/10, 2930/10 & 2931/10 (Apr. 7, 2011), rejected on other grounds, Comm’r Dec. (Nov. 22, 2011).

 

Disciplinary charges alleged that supervisor used profanity towards a subordinate in violation of agency rule which prohibits employees from performing their duties improperly or inefficiently.  ALJ found the evidence insufficient to establish supervisor used profanity but did prove the supervisor spoke loudly and angrily towards the subordinate.   Although loud intemperate speech may violate general rules of employee decorum, where disciplinary charge alleged only profanity and cited only to the rule regarding inefficient work performance, the charge did not place employee on notice of the violation and could not be sustained on this ground.  Dep’t of Transportation v. Jones, OATH Index No. 2371/10 (Aug. 27, 2010).

Failure to cite the rule allegedly violated may result in dismissal of the charge.  Compare Office of the City Clerk v. Gaia Strategies, LLC, OATH Index No. 2377/17 (May 18, 2018) (ALJ found that charges that a lobbyist violated provisions of the Lobbying Law cannot be sustained because those provisions and related rules were never mentioned in the petition), with Health & Hospitals Corp. (Harlem Hospital) v. Case, OATH Index No. 595/95 (Apr. 6, 1995) (although it is the better practice that the petition specify the rule allegedly violated by the respondent, failure to cite the rule is not fatal to the petition where the respondent was not prejudiced by the failure).

 

Where the petition erroneously alleged that the date of occurrence was one day before that stated in all other documentation, notice to the respondent of the petitioner's claim was sufficient, and the respondent was afforded an adequate opportunity to prepare a defense. Dep't of Correction v. Cross, OATH Index No. 1109/95 (Aug. 9, 1995).

In Dep’t of Consumer Affairs v. 809 Collision Inc., OATH Index No. 578/18 (Apr. 20, 2018), ALJ deemed petition partially insufficient where petitioner alleged that respondent unlawfully towed consumer vehicles eight times between November 3, 2014, and July 10, 2017, but does not specify anything further.  The Court found that this provided insufficient notice and is impermissible under OATH Rule 1-22.

Where the petition alleged that the respondent was absent from her job without leave “since” a stated date, and where the trial evidence showed that the respondent's absence without leave was ongoing as of the time of trial, the petition adequately pleaded a continuous period of absence without leave beginning on the stated date and continuing until the time of trial. Health & Hospitals Corp. (Harlem Hospital) v. Case, OATH Index No. 595/95 (Apr. 6, 1995).

A petition that alleged that the respondent engaged in hugging and kissing a student over a period of several months was not inadequately specific pursuant to this section, because the petition alleged continuing conduct over the time period alleged, and because material produced to the respondent during pre-trial discovery revealed that the petitioner's evidence included an allegation that the respondent had engaged in the hugging and kissing approximately every other day during the time period at issue. Bd. of Education v. Blackson, OATH Index No. 1715/97 (Dec. 10, 1997), aff'd, NYC Civ. Serv. Comm'n Item No. CD99-83-SA (Aug. 31, 1999).

In a license revocation proceeding, taxi driver charged with overcharging passengers on 90 occasions over a ten-month period complained charges failed to provide details regarding 85 of the 90 alleged overcharges. ALJ found charges provided sufficient notice. A general allegation covering an extended period may be appropriate for an offense which “by its nature may be committed by one act or by multiple acts and readily permits characterization as a continuing offense over a period of time."  Further, one month prior to trial petitioner provided respondent with an itemized list of 90 alleged overcharges. Taxi & Limousine Comm’n v. Carniol, OATH Index No. 1736/11 (June 24, 2011), adopted, Comm’r Dec. (Aug. 15, 2011).

Form

This section does not require any particular form of designation of parties, and does not refer to a caption. Therefore, the petition's reference to the premises in the caption and listing of the respondents below the caption is a matter purely of style, not of substance, and the listing of “occupants” rather than the names of the occupants is a reasonably precise description which the movant had no trouble recognizing as applying to her. Dep't of Buildings v. Owner, Occupants and Mortgagees of 31 West 11th Street, Apartments 6A and 6B, New York, OATH Index No. 990/94 (Aug. 26, 1994), aff'd, BSA No. 165-94-A, reprinted in 80 Bulletin of Bd. of Stds. and Apps. 193 (May 4, 1995), aff'd sub nom. Hiesiger v. City of New York, NYLJ, Nov. 6, 1996, at 26, col. 1 (Sup. Ct. N.Y. Co.).

Disciplinary pleadings are best written simply and concisely, identifying the actions alleged to be misconduct and citing the rules allegedly being violated, thus placing the employee on notice of what they did wrong.  ALJ found that where none of the specifications identified any rule which was allegedly violated but instead stated that the “foregoing” was “misconduct,” “neglect of duty,” “conduct unbecoming,” “substantial cause for dismissal,” the overall effect of this haphazard drafting was to obscure, rather than clarify, the acts of misconduct being alleged and the rules supposedly violated.  Dep’t of Education v. Kingston, OATH Index No. 1642/19 (Sept. 16, 2019); Dep’t of Education v. Logan, OATH Index No. 494/19 (Aug. 19, 2019).

Disciplinary pleadings should be designed to simply and concisely place an employee on notice of what he or she has allegedly done wrong. Cross-referencing the paragraphs and repeating specifications numerous times under multiple charges and specifications leads to confusing and overly verbose pleadings. The better practice is to provide a single factual allegation with a citation to the agency rules alleged to have been violated. Dep't of Homeless Services v. Aigbedion, OATH Index No. 2340/07 (Nov. 2, 2007).

Disciplinary pleadings should be designed to simply and concisely place employee on notice of what he or she has allegedly done wrong. Petitioner was criticized for confusing and verbose petition which itemized ten incidents in 28 redundant, cross-referenced paragraphs. Admin. for Children's Services v. Papa, OATH Index No. 1622/05 (Aug. 30, 2005), modified on penalty, Comm'r Dec. (Oct. 21, 2005).

In vehicle retention hearing, administrative law judge found petition, alleging vehicle is being retained for forfeiture as an instrumentality of a crime following owner/driver's arrest for reckless endangerment and reckless driving, provided sufficient notice under section 1-22, which requires only "a short and plain statement of the matters to be adjudicated." Police Dep't v. Fung, OATH Index No. 1195/05, mem. dec. (Jan. 27, 2004).

Rule of liberal construction of pleadings applies in administrative proceedings. Where a party attacks the pleadings as defective, it bears the burden of showing prejudice. ALJ denied motion to dismiss pleading due to failure to comply with agency rule requiring a sworn statement from the complainant, where respondent failed to timely object or show prejudice. Fire Dep’t v. Domini, OATH Index No. 2047/11, mem. dec. (July 28, 2011).

A petition need not be verified. Dep't of Buildings v. 232 Mount Hope Place, Bronx, New York, OATH Index No. 1207/94 (Oct. 28, 1994).

JURISDICTION

As a threshold matter, the party filing a petition must possess the right to an administrative hearing pursuant to statute, rule, collective bargaining agreement or other legal provision. Petitioner, a base station licensee whose license had been suspended prior to hearing, filed a petition requesting a hearing and seeking termination of the pre-hearing suspension imposed by the Taxi and Limousine Commission. Although the petition meets the requirements of this rule - it alleges a wrong and asserts a claim to relief - the Commission's motion to dismiss was granted because there is no law or regulation which requires an administrative hearing when a licensee seeks termination of a pre-hearing suspension. Haven Car Service Corp. v. Taxi and Limousine Comm'n, OATH Index No. 994/98, mem. dec. (Feb. 9, 1998).

Right To A Hearing

Petitioner, a tenured civil servant who was dismissed for non-compliance with city residency law, sought a hearing at OATH. Petitioner failed to demonstrate that she had a legal right to an adjudicatory hearing to review her dismissal and administrative law judge concluded that OATH lacked jurisdiction to conduct a post-termination hearing in the absence of authorizing statute, rule or executive order. Gajwani v. Dep't of Design and Construction, OATH Index No. 1498/99, mem. dec. (Mar. 15, 1999).

Under section 17-346(a) of the NYC Administrative Code, the Dangerous Dog Regulation and Protection Law, a dog previously determined to be dangerous may be immediately impounded if its owner is found in violation of a previous order of the Commissioner. Under section 17-346(b), the owner may request a hearing to determine whether the dog should be returned to his or her custody. Dep't of Health v. Yosupov, OATH Index No. 1551/98 (July 23, 1998).