Chapter I - Subchapter C

§1-28 Notice of Conference or Trial.

Errors in Notice

Notice sufficient despite obvious typographical error listing the trial date as occurring in 2022, rather than 2023, because the only reasonable interpretation to be drawn was that trial would take place in 2023. Health & Hospitals Corp. v. Bazemore, OATH Index No. 1327/23 (Feb. 21, 2023).

Notice sufficient even though the wrong trial dates were listed in the notice where respondent had actual notice of the correct dates because they were selected during a conference and where the Webex link, which was sent with the notice of trial, indicated the correct trial dates. Health & Hospitals Corp. (Queens Hospital Ctr.) v. Henry, OATH Index No. 2427/22 (Oct. 20, 2022), modified on penalty, CEO Dec. (Feb. 15, 2023).

ALJ rejected respondent’s procedural challenge to notice of conference because the notice did not advise him that OATH’s Rules are available on the internet. The notice provided all the required information. And even if the petition did not fully comply with OATH’s Rules, there was no prejudice to respondent. Dep’t of Environmental Protection v. Golden, OATH Index No. 1686/14 (June 27, 2014).

Notice insufficient where the notice of hearing informed respondent of the date and time of the hearing but failed to give notice of the correct location/place of the hearing as required by law. Dep’t of Sanitation v. Gaudin, OATH Index No. 1676 /18 (Mar. 26, 2018).

Service of Notice

MANNER OF SERVICE

Notice of trial may be served by mail pursuant to this section. Therefore, petitioner's motion for leave to serve notice of hearing by mail was dismissed as unnecessary. Bd. of Education v. Murphy, OATH Index No. 1432/97 (Oct. 7, 1997).

Service of notice of trial on the respondent must be made in a manner that is reasonably calculated to apprise the respondent of the trial date. Human Resources Admin. v. Aiken, OATH Index No. 855/93 (Sept. 16, 1993).

SERVICE ADEQUATE

Notice sent to two addresses, including respondent’s most recent address, satisfied OATH Rule 1-28, although it would have been preferable if notice was also sent to a third known address. Comm’n on Human Rights ex rel. Nieves v. Rojas, OATH Index No. 2153/17 (Oct. 24, 2017), adopted, Comm’n Dec. (May 16, 2019).

Service of notice of trial by mail to the address given by an employee after commencement of employee disciplinary charges against him was reasonably calculated to achieve actual notice and was therefore sufficient service pursuant to this section. Dep't of Homeless Services v. Harrison, OATH Index No. 396/98 (Dec. 19, 1997).

SERVICE INADEQUATE

Citing procedural inconsistencies and defects in the evidence submitted, ALJ found that agency failed to prove that respondents were properly and notified of the hearing. Business Integrity Comm’n v. All Boro Trucking Corp., OATH Index Nos. 2156/16, 2165/16, & 2171/16, mem. dec. (Sept. 14, 2016).

Notation on file folder, in the absence of an affidavit from the administrative aide who mailed the notice, was found to be insufficient to prove the Police Department mailed respondent the notice within five business days after it seized the vehicle. Police Dep’t v. Martinez, OATH Index No. 2118/11, mem. dec. (May 3, 2011).

Upon respondent’s failure to appear for a hearing, petitioner established that respondent had been properly served with the notice of hearing on two sets of the charges, but not the third. Dep’t of Correction v. Floyd, OATH Index No. 1052/99 (Mar. 23, 1999).

Where an employee advised his employer of an address change after the commencement of an employee disciplinary case against him, the employer's service of notice of the hearing by mail to the employee's former address was inadequate pursuant to this section, because the notices were returned undelivered and the employee failed to appear for trial. Dep't of Homeless Services v. Harrison, OATH Index No. 396/98 (Dec. 19, 1997).

In an employee disciplinary case, notice of trial given to the law firm representing the employee's union was courteous but inadequate where the employee had not yet retained the law firm. Dep't of Correction v. Brown, OATH Index No. 1208/94 (Aug. 11, 1994).

Service of notice of trial by mail to the respondent's address of record was inadequate where the respondent had advised the petitioner at a pre-trial conference of her new address. Human Resources Admin. v. Aiken, OATH Index No. 855/93 (Sept. 16, 1993).

Service Not Required

Upon setting of hearing date at prior conference, attorney was obligated to inform client of the trial schedule. Admin. for Children’s Services v. Lopez, OATH Index No. 198/00 (Feb. 22, 2000).

Where the trial date was selected by the attorneys for both parties following a pre-trial conference, the respondent's counsel was obligated to inform his client of the trial schedule, and the petitioner bore no obligation pursuant to this rule to notify the respondent of the trial. Dep't of Correction v. Bazemore, OATH Index No. 475/97 (July 9, 1997).