Chapter I - Subchapter C

§1-25 Amendment of Pleadings.

Applications to Amend Petitions

WHEN LEAVE IS NOT REQUIRED

Rejecting argument that amended answers were untimely where they were submitted more than 25 days before trial and the agency did not show any undue prejudice or unfair surprise. Comm’n Human Rights ex rel. Watson, et al. & Fair Housing Justice Center, Inc. v. PPC Residential, LLC, Parkchester Preservation Management Company LLC, & Parkchester Preservation Company LP, et al., OATH Index Nos. 2245/19 & 2246/19 (Mar. 17, 2023).

Amendment of charges was timely where amendment was sought twenty-five days before trial and thus, did not require the permission of the administrative law judge under this section. Dep't of Correction v. Battle, OATH Index No. 1052/02 (Nov. 12, 2002).

STANDARD

Applications to amend petitions are to be freely granted absent irremediable prejudice; disposition of related claims in a single proceeding is vastly preferable to disposing of them piecemeal. Dep't of Correction v. Rebecca, OATH Index No. 151/94, mem. dec. (Sept. 17, 1993).

Respondent’s failure to appear at trial is not an automatic bar to all amendment of the initial pleadings. Business Integrity Comm’n v. Freire, OATH Index No. 1600/13 (Apr. 10, 2013).

APPLICATIONS GRANTED

ALJ granted agency’s request in post-trial brief to withdraw certain counts. Dep’t of Consumer and Worker Protection v. Champion Security Services, Inc., et al., OATH Index No. 2293/21 (Oct. 23, 2023).

ALJ granted motion to amend as the proposed amendment did not substantially alter the nature of the charges regarding the duplicate shield, respondent had been notified of the proposed amendment over two weeks before trial, and petitioner did not intend to present its case regarding the charge until the second week of trial. Dep’t of Correction v. Thomas, OATH Index No. 2212/22 (Aug. 8, 2022), adopted, Comm’r Dec. (Sept. 29, 2022), aff’d, NYC Civ. Serv. Comm’n Case No. 2022-0682 (Jan. 17, 2023).

At trial, ALJ granted motion to amend the petition finding no prejudice to respondent, who was on notice as to the essence of the charges, which were not appreciably changed by the amendment. Dep’t of Correction v. Mohr, OATH Index No. 724/17 (June 9, 2017), aff’d, NYC Civ. Serv. Comm’n Case No. 2017-870 (Dec. 21, 2017).

ALJ granted motion to amend pleading made almost seven months after the original petition was filed and about two weeks before the trial was scheduled to begin.  While it was unfortunate that petitioner waited so long to amend the charge, as respondent undoubtedly spent considerable effort and money preparing to defend against charges which were ultimately withdrawn, respondent was unable to articulate specific trial prejudice that would result from the amendment. Dep’t of Buildings v. Schnall, OATH Index No. 2750/15 (Feb. 10, 2017), modified on penalty, Comm’r Dec. (Feb. 21, 2017).

Where there was no undue prejudice, ALJ allowed petitioner to amend the complaint at the outset of trial, over respondent’s objection, to allege that respondent was “an employer or agent thereof” rather than “an employer.” Comm’n on Human Rights v. Aksoy, OATH Index No. 1617/15 (Aug. 24, 2015), rejected on other grounds, Comm’n Dec. & Order (June 21, 2017).

In taxi driver license revocation proceeding, motion to amend pleadings to conform to the proof granted to the extent the petitions allege that the incidents occurred at the pick-up rather than the drop-off locations as indicated in the passengers’ filed complaints.  Taxi & Limousine Comm’n v. Alam, OATH Index Nos. 1833/10 & 2075/10 (Apr. 9, 2010).

A motion to amend a Human Rights complaint was granted to add one respondent and to delete two respondents on the basis of matters learned through discovery. Pursuant to 47 RCNY § 1-13 and this section, applications to amend pleadings shall be made as promptly as possible. Comm'n on Human Rights ex rel. Silva v. Gitto, OATH Index No. 263/01, mem. dec. (Jan. 18, 2001).

Petitioner was permitted to amend its charges as of right under this section against respondents after the statute of limitations had run because amendments did not so substantially alter the nature of the misconduct previously noticed to respondents as to have created new charges which should be time-barred. Dep't of Correction v. Travers, OATH Index Nos. 2499-02/00 (Feb. 28, 2001).

Agency served a new charge by electronic facsimile upon employee's attorney, without serving the employee himself. Although Personnel Director's rule 6.4.3 requires personal service of disciplinary charges on the employee, the rule has not been held to require personal service of amendments to charges, made after the employee has already been personally served with the initial charges and counsel had already appeared in the case. Under these circumstances, the administrative law judge found that there was no prejudice to respondent, that he had a fair opportunity to litigate the issue of the bribe, and that the motion to amend should therefore be granted. Dep't of Sanitation v. Vaughan, OATH Index No. 2234/99 (Feb. 15, 2000), aff'd, NYC Civ. Serv. Comm'n Item No. CD00-100-SA (Nov. 15, 2000).

Petitioner commenced prevailing wage proceeding against company A as the subcontractor on a city school construction project. Petitioner sought to amend its original petition in order to seek relief against company A as the prime contractor. The administrative law judge granted petitioner's application to amend where the relief sought against company A as the prime contractor was not substantially different from the relief sought when the proceeding was commenced against A as the subcontractor. Office of the Comptroller v. Aim Construction Corp., OATH Index No. 1221/98 (May 18, 1998).

Agency permitted to proceed on amended charges, served two weeks prior to the trial by certified mail where service was acknowledged, uncontested and the amendment was a minor modification to the original charges. Triborough Bridge & Tunnel Auth. v. Leibowitz, OATH Index No. 1080/98 (July 24, 1998).

Administrative law judge granted application made at trial to amend the charge to allege continuing unauthorized absence (AWOL) through date of the hearing, as established by the evidence. Respondent was properly notified as to the essence of the charged misconduct, long term AWOL, and no prejudice would inure to respondent in circumstances, despite default nature of the proceeding. Dep't of Correction v. Ottle, OATH Index No. 485/99 (Dec. 1, 1998).

Administrative law judge permitted petitioner to conform the charges and specifications to the proof presented at the hearing where the original charge gave an incorrect date, petitioner presented a witness who established that the mistake was the result of a typographical error and respondent failed to demonstrate the change was prejudicial. Dep't of Transportation v. McKoy, OATH Index No. 199/98 (Jan. 9, 1998), app. withdrawn, NYC Civ. Serv. Comm'n Item No. CD 99-2-W (Feb. 12, 1999).

Building owner filed an application with the Loft Board seeking an extension of then existing legalization deadlines. While the application was pending, the legislature added new legalization deadlines, but Loft Board continued to process the application as one for a retroactive extension of the pre-existing deadlines. Amendment of the application was permitted to add a request for an extension of the new deadline to obtain a building permit. Matter of Ken-Zen Institute, Ltd., OATH Index No. 897/98 (Feb. 24, 1998), adopted in part, Loft Bd. Order No. 2235 (Mar. 24, 1998).

The petitioner's motion to amend the petition at the commencement of trial to allege a new theory of liability was granted on the condition that petitioner agree to an adjournment of the trial. When petitioner elected to proceed to trial as scheduled, the motion to amend was denied. Dep't of Correction v. Boyce, OATH Index No. 789/97 (July 9, 1997), aff'd, NYC Civ. Serv. Comm'n Item No. CD99-75-SA (July 19, 1999).

Where the original petition charged that the respondent had committed employee misconduct by the publication of magazines containing nude pictures of the respondent, but the trial evidence included no proof that the respondent was responsible for the publication of the magazines, a motion to conform the petition to the proof was granted to amend the petition to allege that the respondent committed misconduct by posing nude for pictures she knew or reasonably should have known would be published. Dep't of Correction v. Griffith, OATH Index No. 925/96 (Dec. 23, 1996), modified as to penalty, Comm'r Dec. (Feb. 18, 1997).

Where the petition alleged that the respondent improperly locked inmates into their cells, but the trial evidence showed that the respondent ordered the lock-in but that the lock-in was never completed, the petition was amended after trial to conform to the proof. Dep't of Correction v. Aikman, OATH Index No. 267/96 (Nov. 24, 1995), aff'd in part, rev'd in part, NYC Civ. Serv. Comm'n Item No. CD 97-36M (May 28, 1997).

Where a landlord's petition for a six-month extension of time to comply with the Loft Law was not answered by any tenant, the landlord's pre-trial motion to amend the petition to seek a one-year extension was granted on the condition that the petitioner serve the motion to amend on the tenants, who were given 30 days to answer the motion. Matter of Pittis, OATH Index No. 1197/95 (Aug. 14, 1995), adopted, Loft Bd. Order No. 1846 (Sept. 12, 1995).

Where the petition alleged that the respondent “did kick and/or strike [the complainant] with a nightstick” but the trial evidence showed that the respondent punched the complainant, and where post-trial amendment of the petition to conform to the proof would not surprise or prejudice the respondent, such amendment was granted. Police Dep't v. Coll, OATH Index Nos. 245/95, 252/95 (Feb. 16, 1995).

In a disability proceeding pursuant to section 71 of the Civil Service Law, amendment of the petition, three weeks before trial, to allege unfitness due to an injury subsequent to the injury alleged in the original petition would not prejudice the respondent's ability to prepare for trial and explore pre­trial settlement options. Dep't of Correction v. Rebecca, OATH Index No. 151/94, mem. dec. (Sept. 17, 1993).

APPLICATIONS DENIED

Fourth amended petition rejected by ALJ because it was done unfairly and without authority.  Contrary to the ALJ’s directive, petitioner added penalty allegations without adequate notice to respondents and without seeking leave to do so. Dep’t of Consumer Affairs v. Major World, et al., OATH Index No. 1897/17, mem. dec. (Jan. 24, 2019), aff’d sub nom. Major World Chevrolet v. Salas, 2023 N.Y. App. Div. LEXIS 2376 (1st Dep’t 2023).

At a default hearing, ALJ denied motion for leave to amend pleadings because the proposed amendment would have subjected respondent to a different violation, and it is inappropriate to permit petitioner to amend its pleadings to charge respondent with a violation as to which respondent was not on notice. Business Integrity Comm’n v. Freire, OATH Index No. 1600/13 (Apr. 10, 2013); Business Integrity Comm’n v. Tidiani, OATH Index No. 1189/13 (Jan. 30, 2013).

Complaint alleged sanitation worker requested gratuity to remove additional bulk material, citing to rules prohibiting solicitation of gratuities and the prohibition against collection of trade waste. Mention in the middle of an eleven-sentence narrative in the complaint that bulk material was left behind, without indication that failure to pick up the bulk violated department rules did not provide sufficient notice that worker was charged with separate misconduct for not making the pickup. ALJ denied petitioner’s request, made at the close of trial, that sanitation worker be sanctioned for failing to collect bulk items on specified date. Dep’t of Sanitation v. Gonzalez, OATH Index No. 1915/11 (May 31, 2011), adopted, Comm’r Dec. (June 29, 2011).

Counsel's insertion of allegation into her closing memorandum does not constitute a motion to amend the pleadings. Further, it would be unfair to amend the petition sua sponte at such a late stage. Dep't of Housing Preservation & Development v. Scharf, OATH Index No. 2062/07 (Mar. 31, 2008).

In a license revocation hearing where a driver was charged with punching another driver in the face, ALJ denied request that she conform the petition to the proof that the driver had violated Commission rule when he grabbed and pulled another driver from his cab. Taxi & Limousine Comm'n v. Sobczak, OATH Index No. 1691//08 (Apr. 7, 2008), modified on penalty, Comm'r/Chair's Decision (May 9, 2008).

At the commencement of trial, petitioner made a motion to amend charges to include that respondent submitted a false and misleading report regarding an incident of disrespect towards a supervisor. Because no explanation was provided why the charges could not have been amended in a timely manner, and given that amendment was substantial in nature, and would likely exacerbate any penalty, the administrative law judge denied the motion. Dep't of Correction v. James, OATH Index No. 1453/03 (July 29, 2003).

Under this section, if amendment is sought less than twenty-five days before the commencement of the hearing, amendment may be made only on consent of the parties or by leave of the administrative law judge on motion. Administrative law judge denied motion to expand charges because it was made on the day of trial without any prior notice to respondent's counsel or to the tribunal. Dep't of Correction v. Barnwell, OATH Index No. 733/02 (Apr. 24, 2002).

A motion to amend charges to include four and one-half year old conduct was denied where eighteen-month statute of limitations for service of disciplinary charges had long since passed, and where conduct was separate and distinct from other charge and where conduct was not unknown or actively concealed from petitioner. Dep't of Correction v. Wilder, OATH Index No. 1636/00 (June 20, 2001).

Agency's day of trial motion to amend the charges was denied where the new charges were never served on respondent. Triborough Bridge & Tunnel Auth. v. Leibowitz, OATH Index No. 1080/98 (July 24, 1998).

A motion to conform the petition to the proof at trial must be denied where the respondent did not have fair notice of the new claim to be added and an opportunity to fully litigate it, and special care must be taken where the respondent did not appear for trial and litigate the issues. Dep't of Correction v. Griffith, OATH Index No. 925/96 (Dec. 23, 1996), modified as to penalty, Comm'r Dec. (Feb. 18, 1997).

In a case that had been pending for several months, a motion made only days before trial to amend the petition to add a charge to the 30 charges in the original petition was denied on the ground that the new charge would protract the trial beyond the two days allotted for the trial of the original 30 charges. Bd. of Education v. Drakeford, OATH Index No. 1406/95 (Nov. 29, 1995), modified on penalty, 242 A.D.2d 627 (2d Dep't 1997).

Amendment by ALJ Sua Sponte

ALJ found that amending the petition sua sponte to include the charge of undue familiarity, in order to conform the charges to the proof presented at trial, was appropriate under the limited circumstances presented because doing so would not prejudice respondent, as respondent acknowledged the charge and presented a defense to it. Dep’t of Correction v. Kitt, OATH Index No. 1829/23 (Aug. 7, 2023), adopted, Comm’r Dec. (Sept. 25, 2023).

Where respondent was made aware both before and during the hearing that the alleged misconduct consisted of stealing union funds and not merely being arrested for theft, ALJ conformed charges to the proof that respondent stole funds belonging to the union. Dep’t of Finance v. Smyth, OATH Index No. 1285/11 (Mar. 9, 2011), adopted, Comm’r Dec. (Mar. 16, 2011).

Park worker was charged with using or being under the influence of a controlled substance while on duty; proof established respondent's urine tested positive for cocaine metabolite. Held, test result, without more, did not establish that worker was under the influence of an illegal drug at work; administrative law judge conforms charge to the proof that respondent's urine tested positive for cocaine metabolite. Dep't of Parks & Recreation v. Nappa, OATH Index No. 306/00 (Jan. 25, 2000), modified on findings, adopted on penalty, Comm'r Dec. (Feb. 9, 2000).

Where the petition alleged misconduct on September 23, 1995, but the evidence pertained to September 3, 1995, and where it was clear that the respondent fully understood which date was at issue and was able to defend the charge in spite of the error, the administrative law judge in rendering the report and recommendation deemed the petition to be amended to conform to the proof. Health & Hospitals Corp. (North Central Bronx Hospital) v. Cross, OATH Index No. 315/97 (Jan. 27, 1997).

ALJ declines to amend Sua Sponte

Where petitioner did not move to amend petition to conform to the proof, ALJ declined to amend petition sua sponte, as the lack of notice could lead to prejudice. Dep't of Correction v. Jenkins, OATH Index No. 3070/09 (Dec. 16, 2009).

Service of Amended Petitions

An amended petition pursuant to this section need not be served with the notices required upon service of the original petition pursuant to section 1-23(a) of this chapter. Transit Auth. v. Smallwood, OATH Index No. 442/96 (Aug. 8, 1997).

Relation Back of Amendments

OATH has permitted otherwise time-barred charges to be amended under the relation back theory. Relation back is permitted where the amended charges involve the same factual nexus and subsequent facts related to the original charge. ALJ denied motion to dismiss charges under relation back theory where the new charge was related to the same use of force incident referred to in the first two charges, which were served in a timely manner. Dep’t of Correction v. Rathour, OATH Index Nos. 272/13, 273/13, 274/13, & 275/13 (Aug. 21, 2013).

Respondent moved to dismiss amended charge added after the eighteen-month limitations period provided in Civil Service Law § 75(4). Administrative law judge found that charge, as amended, should be allowed as the added specification arose out of the exact incident described in the original specification, in accordance with the relation-back doctrine of the New York Civil Practice Law and Rules and this tribunal's precedent, citing CPLR § 203(f); Dep't of Correction v. Lee and Potter, OATH Index Nos. 284-85/88 (Dec. 2, 1988). Here, the facts were the same, no new witnesses were asked for, no identified witnesses were unavailable, and respondent had ample time to prepare his defense. The issues were fully litigated at the hearing. Police Dep't v. Strom, OATH Index No. 546/00 (July 20, 2000).

Pursuant to the relation back doctrine, petitioner was allowed to substitute amended charge, which referred to the complainant, for timely served original charge, which referred to the complainant's mother, since the amendment relates to the same events, involving the same officer and the same complainant on the same night in front of the same witnesses as the original charge. Police Dep't v. Booth, OATH Index No. 1208/98 (Aug. 18, 1998).

Where a proposed amendment to the petition pertained to the same incident as the original petition, and the amendment posed no irremediable prejudice to the respondent's defense, the amendment related back to the original petition and was not time-barred. Police Dep't v. Zisel, OATH Index No. 389/97 (Mar. 7, 1997), modified as to penalty, Comm'r Dec. (Sept. 23, 1997).

Applications to Conform Charges to Proof

APPLICATIONS GRANTED

Absent the articulation of any prejudice to respondents, ALJ granted motion to conform the pleadings to proof at trial to specify the location of the alleged incident. Dep’t of Correction v. Hill, OATH Index Nos. 861/21 & 1136/21 (Jan. 23, 2023), adopted, Comm’r Dec. (Apr. 13, 2023).

Agency’s motion to amend the petition to conform to the proof was granted considering the lack of prejudice. Office of the Comptroller v. Astro Communications of NY Corp., OATH Index No. 1981/15 (Sept. 10, 2015), adopted, Comptroller’s Dec. (Oct. 30, 2015).

ALJ granted agency’s motion to conform charge to the proof to correct an erroneous date of the incident. Respondent failed to show any prejudice as he conceded that agency had provided documents during discovery which put respondent on notice of the correct date, and respondent had the opportunity to cross-examine all witnesses about the incident.  Health & Hospitals Corp. (Elmhurst Hosp. Ctr.) v. Huggins, OATH Index Nos. 587/14 & 1545/14 (June 23, 2014). 

Motions to conform the petition to the proof are not required to be in writing and may be granted absent prejudice to the opposing party.  Motion to conform made at trial granted where counsel objected solely because the motion was not made in writing.  Dep’t of Environmental Protection v. A.M., OATH Index No. 1410/16 (July 6, 2016). 

Petition amended to conform to proof that a juvenile counselor held resident by the arm, and not the wrist/hand, as pled.  Admin. for Children’s Services v. Patterson, OATH Index No. 904/16 (Sept. 2, 2016), aff’d, NYC Civ. Serv. Comm’n Case No. 2016-085 (Dec. 16, 2016).

Petitioner's motion made at the close of the hearing to conform the charges to the proof to include charge of disrespectful conduct, which occurred on the day after the date of the charged incident, was granted because the events of the second day were fully litigated at the hearing. Respondent had the opportunity to cross-examine petitioner's witness regarding this conduct and respondent was previously on notice of both dates involved in this matter. Dep't of Correction v. Bovell, OATH Index No. 1910/99 (Aug. 13, 1999).

Where first two specifications alleged the wrong date for the incident, it was appropriate to conform the charge to the proof where no one was prejudiced by the inaccuracy, and respondent and all other witnesses were aware of the incident charged. Dep't of Correction v. Sostre-Valentin, OATH Index No. 1923/99 (Sept. 22, 1999), adopted, NYC Civ. Serv. Comm'n Item No. CD 00-94-SA (Nov. 14, 2000).

Charge of directing abusive language towards the passenger (35 RCNY § 2-60(a)) was conformed to proof of discourtesy (35 RCNY § 2-42). Administrative law judge credited the passenger's testimony that respondent had told her to shut up when she gave him her desired route. Administrative law judge found that the language used by respondent did not rise to the level of a 2-60(a) violation, because that rule addresses physical force and abuse. Nevertheless, the administrative law judge found that respondent's conduct amounted to a clear act of discourtesy, in violation of 2-42. Taxi & Limousine Comm'n v. Ahmed, OATH Index No. 1790/99 (May 3, 1999), modified on penalty, Comm'n Dec. (Apr. 12, 2000).

APPLICATION DENIED

ALJ denied agency’s post-trial motion to conform the charge to the proof by charging respondent with threatening to take action to find out who filed the complaint was denied. The allegations of retaliation against respondent were very specific. Permitting a post-trial amendment under these circumstances would not provide adequate notice to respondent of the particular allegations against him, thus hampering his ability to defend against those charges. Dep’t of Consumer and Worker Protection v. Champion Security Services, Inc., et al., OATH Index No. 2293/21 (Oct. 23, 2023).

Agency precluded from questioning an investigator about other “problematic” portions of respondents’ use of force reports, and to have the charges conformed to the evidence adduced from such questioning. Respondents’ counsel had already spent a full day defending against the charges as drafted and could not be expected to alter its strategy to conform with a new theory of proof on the second day of trial. 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).