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Chapter I - Subchapter C

§ 1-32 Adjournments.

Applicability

CRIMINAL CHARGES

ALJ denied motion to stay civil service disciplinary hearing while related criminal charges were pending. Going forward with disciplinary trial does not unlawfully impinge on employee's Fifth Amendment right to remain silent. Dep't of Environmental Protection v. Rodriguez, OATH Index No. 1438/08 (Apr. 29, 2008), modified on penalty, Comm'r Dec. (May 15, 2008); Dep't of Environmental Protection v. Bellach, OATH Index No. 1574/08 (Apr. 30, 2008).

Respondent, a correction officer, sought an adjournment of her disciplinary hearing due to the pendency of a criminal proceeding. Respondent argued that she should not be forced to choose between remaining silent at her disciplinary hearing, at the risk of losing her job, or testifying at that hearing at the risk of incriminating herself in the criminal proceeding. The ALJ denied the adjournment request, noting that it was not unconstitutionally impermissible to require a defendant to go forward in a civil or administrative proceeding despite the pendency of criminal charges, and further, that the conduct at issue in the disciplinary proceedings predated and was unrelated to the subsequent criminal charges. Dep't of Correction v. Dasque, OATH Index No. 1270/01, mem. dec. (July 26, 2001).

Motion to adjourn disciplinary hearing pending resolution of criminal charges is denied. Long standing precedent holds that an employee's constitutional right against self-incrimination is not violated by going forward with the administrative disciplinary proceeding. Human Resources Admin. v. Rickenbacker-Miller, OATH Index No. 603/01 (Dec. 12, 2000).

Neither the pendency of a criminal case against respondent corporation related to the administrative case against respondent, nor the possibility that ongoing plea negotiations in the criminal case might resolve the issues in the administrative case, constitutes good cause for an indefinite adjournment of the administrative trial. In addition, the fact that defense of the administrative case while criminal charges are pending would require a principal of the respondent to choose between testifying and compromising her privilege against self-incrimination in the criminal case, and not testifying and thereby subjecting respondent to a negative inference, does not constitute good cause for an indefinite adjournment of the administrative trial. Comptroller v. BQE Contracting Corp., OATH Index No. 1046/93 (Sept. 3, 1993).

CONFERENCES

Adjournment of conferences is subject to the provisions of this section. Dep't of Correction v. Kilcullen, OATH Index No. 528/95, letter to counsel (Oct. 19, 1994).

TIME OF TRIAL

Delay in the commencement of trial on the day of trial is an adjournment, and may be granted only for good cause. Dep't of Correction v. Vassel, OATH Index No. 267/93, mem. dec. (Nov. 18, 1992).

CONTINUANCES

Like an application for an adjournment (delay in the commencement of trial), an application for a continuance (delay after commencement of trial) may be granted only upon a showing of good cause. Where an application for a continuance is based on the need for additional time to obtain evidence, an element of good cause must be that the applicant could not reasonably have anticipated the need for the evidence which necessitates the continuance. Dep't of Correction v. Jewell, OATH Index No. 260/94 (Feb. 14, 1994), adopted, NYC Civ. Serv. Comm'n Item No. CD99-60-SA (June 3, 1999).

Procedure

EX PARTE APPLICATIONS

An application for an adjournment, even on consent of all parties, is not ministerial and may not be made ex parte under this section and section 1-14(a) of this chapter. Human Resources Admin. v. Morales, OATH Index No. 306/92, letter to counsel (Dec. 31, 1991).

SELECTION OF ADJOURN DATE

Although a case may be docketed by ex parte communication with OATH clerks, and upon docketing may be placed on the trial or conference calendar ex parte pursuant to sections 1-14(b) and 1-26(d) of this chapter, selection of a date after grant of an adjournment may not be done ex parte. Transit Auth. v. Rivera, OATH Index No. 418/92, letter to counsel (Jan. 22, 1992).

APPLICATION BY ATTORNEY NOT YET RETAINED

Under this section and section 1-11(c) of this chapter, an attorney not yet retained by a party lacks standing absent extraordinary circumstances to file an application on that party's behalf. Human Resources Admin. v. Morales, OATH Index No. 306/92, letter to counsel (Dec. 31, 1991).

BY WHOM GRANTED

Applications for adjournments are addressed to the discretion of the administrative law judge and shall be granted only for good cause. Parties may not agree to adjourn a matter without making an application to the administrative law judge. Taxi & Limousine Comm'n v. Surinder, OATH Index No. 825/99, letter to parties (Nov. 30, 1998).

Where respondent, an employee of petitioner's, called in sick on the day of trial pursuant to petitioner's employee procedures, that call did not constitute a request for an adjournment, which, pursuant to paragraph (b) of this section, may be obtained only by motion to the administrative law judge. Dep't of Correction v. Kelly, OATH Index No. 1228/97 (May 16, 1997).

An adjournment may only be granted by an administrative law judge, not by unilateral action of one party or by consent of all parties. Dep't of Correction v. Kilcullen, OATH Index No. 528/95, letter to counsel (Oct. 19, 1994).

An adjournment application must be directed to the administrative law judge, not to a calendar unit clerk. Transit Auth. v. Sayad, OATH Index No. 1026/94 (June 8, 1994), adopted, NYC Civ. Serv. Comm'n Item No. CD96-112 (Sept. 9, 1996).

AFFIRMATION BY ATTORNEY OF ACTUAL ENGAGEMENT

Where an adjournment of a pre-trial conference is sought on the ground of unavailability of counsel, the showing of good cause necessary to the grant of the adjournment pursuant to paragraph (b) of this section must include a showing that no other attorney can cover either the pre-trial conference or the conflicting engagement, and a showing that the attorney's acceptance of the latter-scheduled engagement was not readily avoidable. Matter of Phillips, OATH Index No. 1651/96, letter to counsel (Apr. 24, 1996).

Actual engagement of counsel does not necessarily constitute good cause for adjournment of an OATH trial. An affirmation of actual engagement must include all of the information specified in paragraph (d) of this rule. An affirmation of actual engagement that failed to explain why counsel's associate could not handle the conflicting matter did not state good cause for an adjournment. Dep't of Correction v. Vassel, OATH Index No. 267/93, mem. dec. (Nov. 18, 1992).

An application for an adjournment on the ground of actual engagement of counsel must be accompanied by an affirmation of actual engagement; a letter is insufficient. Human Resources Admin. v. Morales, OATH Index No. 306/92, letter to counsel (Dec. 31, 1991).

The “Good Cause” Standard

GOOD CAUSE GENERALLY

Good cause for an adjournment pursuant to subsection (b) of this section should include careful consideration of the length of any pre-trial leave imposed and the effect of delay on the employee.  It is incumbent upon the petitioning employer to provide the tribunal with all relevant notices, particularly any notice to respondent imposing a pre-trial involuntary leave, so that the file is complete and all relevant factors may be considered in the case of adjournment requests.  Admin for Children’s Services v. J.M., OATH Index No. 3350/09 (Apr. 5, 2010).

The degree of need for an adjournment that is required to constitute good cause pursuant to paragraph (b) of this section can only increase as the case ages and the number of adjournments granted grows. Police Dep't v. Starr, OATH Index No. 1414/97 (Dec. 2, 1997).

A correction officer was charged with refusing an order to submit to a drug test following a car accident where she was suspected of driving under the influence of alcohol. ALJ had denied request for an adjournment made on the day of trial by attorney who claimed to be substituting for counsel of record. In an Article 78 proceeding, the court held that the ALJ abused his discretion by denying an adjournment where there was sufficient confusion in the record for respondent to believe that the date was for a pre-trial conference, and not trial, and where there was a lack of prejudice to respondents. Tirado v. Schrembi, Index No. 400175/95 (Sup. Ct. N.Y. Co. 1995), rev'g, Dep't of Correction v. Tirado, OATH Index No. 1213/94 (Aug. 17, 1994).

Where an application for a continuance is based on the need for additional time to obtain evidence, an element of good cause must be that the applicant could not reasonably have anticipated the need for the evidence which necessitates the continuance. Dep't of Correction v. Jewell, OATH Index No. 260/94 (Feb. 14, 1994), aff'd, NYC Civ. Serv. Comm'n Item No. 99-60-SA (June 3, 1999).

Last-minute adjournment requests are heavily disfavored. Dep't of Correction v. Vassel, OATH Index No. 267/93, mem. dec. (Nov. 18, 1992).

Unexcused delay in bringing an adjournment motion can be sufficient without more to defeat the motion. Dep't of Housing Preservation and Development v. Natal, OATH Index No. 1185/90 (Mar. 22, 1991).

GOOD CAUSE SHOWN

License revocation hearing was adjourned to give respondent, a for-hire driver, an opportunity to secure counsel. Section 100.3 (A)(8) of the Rules of Conduct for Administrative Law Judges directs judges take steps to ensure that unrepresented parties have the opportunity to have his or her case fully heard. Among the steps the judge took was to give respondent time to secure counsel, obtain a translator for the hearing, and permit continued cross-examination of the complaining witness after respondent hired an attorney. Taxi & Limousine Comm'n v. Martinez, OATH Index No. 1183/07 (Apr. 11, 2007).

Adjournment of trial was granted, where the motion for an adjournment was supported by medical documentation indicating that the movant would require bed rest after delivery of a baby, until four days after the previously scheduled trial date. Human Resources Admin. v. Brown, OATH Index No. 1557/95 (Dec. 1, 1995).

GOOD CAUSE NOT SHOWN

Adjournment request based upon undocumented claim of illness denied where party repeatedly failed to attend proceedings, answer or return telephone calls to her home. Health & Hospitals Corp. (Coler-Goldwater Specialty Hosp. and Nursing Facility) v. Reynolds, OATH Index No. 2713/10 (Jan. 20, 2011), adopted, Hosp. Determination (Feb. 9, 2011).

A pending civil suit is not a good cause for an adjournment, even if the matters are related. Fire Dep’t v. Domini, OATH Index No. 2047/11, mem. dec. (July 28, 2011).

The denial of an adjournment was not improper where an employee, who had already received multiple adjournments, failed to provide adequate documentation supporting his claim that he was medically unable to attend the hearing.  Cherry v. Klein, 2010 NY Slip Op 31659U (Sup. Ct. N.Y. Co. 2010), aff’g, OATH Index No. 1236/09 (May 29, 2009).

ALJ denied employee’s request to stay a disciplinary action while she is on involuntary leave for disability, finding it to be essentially a request for a nine-month adjournment. Lengthy adjournment requests due to another pending action have not been found to constitute good cause and have generally been denied.   Dep’t of Consumer Affairs  v. Santamaria, OATH Index No. 2455/10, mem. dec. (Aug. 6, 2010).

ALJ denies owner's motion to hold pending Loft Board proceeding in abeyance due to a pending nonpayment action. Matter of Tenants of 51-55 West 28th Street, OATH Index Nos. 2408/09, 2734/09, & 2735/09, mem. dec. (May 27, 2009).

Application for a continuance, like an application for an adjournment, may only be granted on a showing of good cause. Request for an open-ended or prolonged continuance on the third day of hearing was denied where the party's explanation for her absence - that she had a gravely ill relative and "other factors in her life" - were vague and unsubstantiated. Dep't of Finance v. Zindel, OATH Index No. 1310/07 (June 22, 2007).

Motion for adjournment, made on the day of trial, to retain new counsel was denied, where counsel of record had appeared for respondent at a pre-trial conference and stated that he was prepared to go forward with the trial. Dep't of Correction v. Cortes, OATH Index No. 1230/06 (June 16, 2006).

Alleged flaws in the attempted personal service of charges was not found to be a basis for adjourning a disciplinary hearing where the charges were served at respondent's home, despite petitioner's possible awareness of respondent's temporary absence from residence due to an in-patient rehabilitation program. Fire Dep't v. Reinhard, OATH Index No. 647/05 (Oct. 21, 2004).

Department rule giving firefighter thirty days to request a drug test retest was found not to be a valid basis to grant an adjournment where respondent had not submitted the form required to authorize the retest and he had submitted his retirement application which was to become effective two weeks after the scheduled hearing. Fire Dep't v. Rinehard, OATH Index No. 647/05 (Oct. 21, 2004).

Respondents requested an adjournment of trial date, claiming that they would not have sufficient time to obtain complainant's medical records or their own financial records to prove undue hardship. The request failed to establish the requisite good cause for an adjournment under this rule. Respondents inexplicably waited six weeks before moving to order the complainant to provide medical records. With regard to the financial records, respondents' claim was without merit given judge's scheduling order establishing discovery timeline and trial date. Comm'n on Human Rights v. Woodycrest Realty, LLC, OATH Index No. 779/03, mem. dec. (May 1, 2003).

Pursuant to this rule, adjournments may be granted only for good cause shown. Respondent requested an adjournment because of an expected arbitration proceeding on a related grievance. The administrative law judge denied the adjournment for lack of good cause where the arbitration proceeding was not imminent, where the cited Department directive did not have any applicability to OATH conferences, and where respondent would not be prejudiced by proceeding with a disciplinary hearing. Dep't of Correction v. Chalmers, OATH Index No. 413/04, mem. dec. (Nov. 6, 2003).

Adjournment request based on pending arbitration proceeding was denied where arbitration was not imminent and where movant could not show prejudice would result. Dep't of Correction v. Crenshaw, OATH Index No. 172/04, mem. dec. (Nov. 18, 2003).

Owner's request for an adjournment at time of trial, so he would have additional time to obtain a building permit, was denied. Adjournment of trial may be granted only upon a showing of good cause by the party seeking the adjournment. Here, the owner had already had months to obtain the permit but failed to get it. Matter of Buchen, OATH Index Nos. 1132/98 & 105/99 (Mar. 21, 2002), adopted, Loft Bd. Order No. 2725 (Apr. 18, 2002).

Administrative law judge denied counsel's motion for an adjournment of the hearing, after the tribunal delayed the start of the hearing by three hours in order to give respondent an opportunity to appear and to give counsel an opportunity to locate him and determine why he was not present. Dep't of Correction v. Jones, OATH Index No. 1400/02 (July 10, 2002).

Administrative law judge denied petitioner's adjournment request where complainant and witnesses failed to appear on scheduled trial date despite prior notice and having been subpoenaed, the case was three and a half years old and involved minor discourtesy charges, there had been previous adjournment either due to petitioner's witnesses' inability to appear or petitioner's failure to properly order respondents in for trial, and the trial date had been marked final by this tribunal two dates prior to date at issue. Police Dep't v. Sanchez, OATH Index Nos. 548-49/00 (Feb. 16, 2000).

Administrative law judge denied continuance to bring in respondent's partner, who was unable to appear due to illness, based on counsel's failure to know whether the potential witness could offer anything probative to the proceeding. Dep't of Sanitation v. Branch, OATH Index No. 169/01 (Dec. 6, 2000).

Adjournment application denied where occupant of the premises appeared and represented that an application for a zoning variance was pending before the Board of Standards and Appeals and a hearing on that application had been scheduled. Statutory discretion to order closure of a premises lies with the Commissioner of the Department of Buildings. See Admin. Code § 26-127.2(b), (d); Dep't of Buildings v. Owners, Occupants and Mortgagees of 20 West 190th Street, Bronx, OATH Index No. 843/00 (Mar. 8, 2000).

Administrative law judge denied attorney's adjournment request the day before a scheduled license revocation hearing due to its similarity to a previous adjournment request and was suggestive of deceptive delaying tactics. Dep't of Buildings v. Banton, OATH Index No. 2124/00 (Sept. 18, 2000).

On day of the scheduled hearing, attorney's office informed the tribunal that respondent's attorney would be one hour late. Administrative law judge held that the request to postpone the hearing did not meet the tribunal's standards for an adjournment request. The hearing proceeded in the form of an inquest. Admin. for Children's Services v. Lopez, OATH Index No. 198/00 (Feb. 22, 2000).

In a zoning violation proceeding, the owner of premises appeared and argued that an indefinite stay should be granted based on his submission of an application to the Board of Standards and Appeals for re-zoning. Administrative law judge denied the application, noting that the matter had already been adjourned three times before for that purpose to no avail. Commissioner adopted the administrative law judge's reasons for denying the adjournment request. In addition, the Commissioner noted that an owner who commences an illegal commercial use of a residentially zoned premises should not be entitled to wait until he is caught, then delay enforcement action by filing a re-zoning application with the City Planning Commission. Commissioner further noted that statutory discretion to order closure of a premises lies with the Buildings Department Commissioner under section 26-127.2(b), (d) of the Administrative Code, not OATH and the adjournments were therefore improvident. Dep't of Buildings v. 100 Post Avenue, New York, OATH Index No. 1402/99 (Sept. 29, 1999).

Where respondent failed to appear for trial and his attorney asked for an adjournment based upon respondent's representation to a union representative that he had to leave the state to attend to a sick parent, the respondent was declared in default because respondent had not authorized anyone to appear on his behalf pursuant to section 1-11. Pursuant to this rule, the administrative law judge denied the request for an adjournment because respondent did not provide sufficient information to warrant one, but he left record open for two weeks to permit respondent to submit explanation for his failure to appear. Health & Hospitals Corp. (Elmhurst Hospital Center) v. Mosley, OATH Index No. 206/00 (Nov. 15, 1999).

Good cause for granting adjournment was lacking where the doctor's notes submitted by respondent failed to provide a medical reason, either psychological or physiological, that he could not attend the OATH hearing. Triborough Bridge & Tunnel Auth. v. Leibowitz, OATH Index No. 1080/98 (July 24, 1998).

Good cause for granting adjournment was lacking where there was no basis to conclude that further attempts to locate the Department's complaining witness would be successful, and the first adjournment was marked final against the Department. Police Dep't v. Bowser, OATH Index No. 1694/98 (Aug. 24, 1998).

Adjournment denied where trial was continued for a month following the presentation of petitioner's case, where the matter had been pending for several months, and where respondent's request for an adjournment was made on the third day of trial, so that respondent's newly retained counsel would need more time to prepare for trial. Dep't of Sanitation v. Garcia, OATH Index No. 1140/98 (May 1, 1998).

Non-appearance of petitioner's attorney did not constitute good cause for an adjournment where petitioner had ample notice that her attorney would not appear unless she paid his retainer, but failed to do so. Nor did she show good cause to adjourn continued date, selected by her, based on her claim that she assumed that her recently retained attorney, whose name she could not recall, obtained an adjournment to an unspecified date. Matter of Wilson, OATH Index No. 1573/97 (Mar. 20, 1998), adopted, Loft Bd. Order No. 2280 (Sept. 24, 1998).

Where trial was continued for more than seven weeks following the presentation of the petitioner's case, and the continuance date was then adjourned for more than two weeks, the respondent's request for an adjournment three days before the resumption of trial, on the ground that the respondent wanted to retain new counsel, was denied pursuant to paragraph (b) of this section. Transit Auth. v. Merrit, OATH Index No. 963/97 (Oct. 30, 1997).

The respondent's motion for an adjournment, made pursuant to paragraph (b) of this section on the morning of trial, was denied where two witnesses had traveled from Georgia to attend trial. Police Dep't v. Carfora, OATH Index No. 621/97 (June 16, 1997).

Where trial was adjourned during a telephone conference call with counsel for both sides, the fact that neither the petitioner nor the respondent's counsel notified the respondent of the adjourn date, and therefore the respondent did not appear for trial, did not constitute good cause for an adjournment pursuant to paragraph (b) of this section. Police Dep't v. Carfora, OATH Index No. 621/97 (June 16, 1997).

Speculation by the respondent's counsel that the respondent had failed to appear for trial for medical reasons, without any medical documentation or other specific information, did not constitute good cause for an adjournment pursuant to paragraph (b) of this section. Health & Hospitals Corp. (Woodhull Medical and Mental Health Center) v. Pratt, OATH Index No. 818/97 (Feb. 19, 1997).

Where respondents did not ask petitioner to produce two of petitioner's employees as trial witnesses for respondents until the day before trial, and petitioner was unable on short notice to arrange for the attendance of those witnesses, respondents' request for a continuance for an additional opportunity to call those witnesses was denied for lack of good cause pursuant to paragraph (b) of this section. Police Dep't v. Horgan, OATH Index Nos. 443/97, 446/97 (Feb. 4, 1997).

Counsel's need for additional time to arrange for the attendance of witnesses, due to counsel's failure to prepare for trial until the day before trial because of a heavy caseload, was not good cause for a trial continuance pursuant to paragraph (b) of this section. Police Dep't v. Horgan, OATH Index Nos. 443/97, 446/97 (Feb. 4, 1997).

Respondent's motion for an indefinite adjournment of trial due to her pregnancy, or, in the alternative, for a two- or three-month adjournment, was denied, although an adjournment of 12 days was granted, where the motion was supported by medical documentation indicating that respondent would require bed rest after delivery of her baby, until four days after the previously scheduled trial date. Human Resources Admin. v. Brown, OATH Index No. 1557/95 (Dec. 1, 1995).

Respondent's motion for an adjournment of trial pending disposition of his motion to dismiss the petition on various jurisdictional grounds was denied, because respondent is not entitled to a ruling on jurisdictional objections before proceeding to trial on the merits. Dep't of Correction v. Mercer, OATH Index No. 1638/95 (Sept. 13, 1995).

Respondent's motion for a trial adjournment, made the day before trial, was denied where the case had been pending for six months, and the case had been marked off the calendar twice due to settlements on which respondent had reneged. Taxi and Limousine Comm'n v. Vedrine, OATH Index No. 1001/95 (Sept. 7, 1995).

Where a contractor debarment petition pursuant to section 335 of the City Charter was based on the criminal conviction of the individual respondent, who controlled the corporate respondents, neither the individual respondent's incarceration and inability personally to attend trial nor the pendency of an appeal from his conviction constituted “good cause” for a trial adjournment. It is relevant to the assessment of “good cause” that debarment cases are to be adjudicated “as expeditiously as possible” under section 7-08(d)(5) of the Procurement Policy Board rules (title 9, Rules of the City of New York). Dep't of Housing Preservation & Development v. Afro Contracting Corp., OATH Index No. 1519/95, mem. dec. (June 27, 1995).

In an involuntary disability leave case against an employee pursuant to section 71 of the Civil Service Law, respondent's motion for an adjournment of trial until disposition of his disability retirement application was denied, because respondent's concession that he was disabled and unable to work vitiated his entitlement to a hearing, and respondent's desire to remain on the public payroll pending his anticipated disability retirement did not constitute “good cause” for an adjournment. Dep't of Correction v. Iannicelli, OATH Index No. 1429/95 (May 24, 1995).

Respondent's motion for an adjournment of trial, to permit him to move in court for a stay of proceedings in this tribunal, was denied where the issue that respondent wished to have adjudicated in court could be asserted as a defense to the petition in this tribunal. Dep't of Correction v. Malloy, OATH Index No. 1405/95 (May 22, 1995).

In a proceeding on an agency's petition to place an employee on involuntary disability leave, the employee's application for a second adjournment of trial was denied, where the employee had been on paid sick leave for four years, and continued health insurance was available to the employee, at his expense, pending disposition of his disability retirement application. Dep't of Correction v. Norris, OATH Index No. 1099/94 (Aug. 10, 1994).

In an employee disciplinary proceeding based upon citizens' complaints against two employees, the employing agency's application for an adjournment of trial was denied, where the application was made on the day of trial, trial had been adjourned four times before, the agency acknowledged that the charges were not grave, the long pendency of the charges was impeding the employees' careers, and the complaining citizens' repeated failure to appear for scheduled trial dates indicated a lack of interest in proceeding that would not likely be remedied by grant of an adjournment. Police Dep't v. Nation, OATH Index Nos. 1004-05/94 (Nov. 30, 1994).

An application for an indefinite stay of proceedings on a petition alleging illegal commercial use of premises in a residential zone was denied. The movant alleged that he was seeking an amended certificate of occupancy, but did not show that grant of an amendment was likely, would be accomplished reasonably soon, or would legalize the use of the apartments placed at issue by the petition. 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), adopted, BSA No. 165-94-A, reprinted in 80 Bulletin of Bd. of Stds. and Apps. 193 (May 4, 1995), adopted sub nom. Hiesiger v. City of New York, NYLJ, Nov. 6, 1996, at 26, col. 1 (Sup. Ct. N.Y. Co.).

Where counsel had represented the respondent for at least 15 months, through various pre-trial proceedings at the agency and then at OATH, respondent's desire to discharge counsel on the day of trial, without any persuasive reason to change counsel, was not good cause for an adjournment of trial. Dep't of Correction v. Rebecca, OATH Index No. 151/94, mem. dec. (Oct. 21, 1993).

Amendment of the petition three weeks before trial is not good cause for adjournment of trial, because respondent has adequate time for trial preparation and exploration of pre-trial settlement. Dep't of Correction v. Rebecca, OATH Index No. 151/94, mem. dec. (Sept. 17, 1993).

Conflict between counsel's vacation and trial is not good cause for adjournment of trial, notwithstanding consent of counsel's adversary, because counsel consented to the trial date, and because counsel belongs to a 16-attorney firm which can supply substitute trial counsel. Dep't of Correction v. Taylor, OATH Index No. 205/94, mem. dec. (Sept. 2, 1993).

Withdrawal from Calendar

GENERALLY

Paragraph (f) of this section provides that a petitioner may withdraw a case from the calendar unilaterally, if the withdrawal is with prejudice, but that withdrawal of a case from the calendar without prejudice may be effected only by motion. Matter of Gala, OATH Index No. 582/97 (Dec. 9, 1996), adopted, Loft Bd. Order No. 2054 (Jan. 9, 1997).

Disposition of a petitioner's motion to withdraw the petition is committed to the discretion of the administrative law judge, pursuant to paragraph (f) of this section. Relevant factors include whether the respondents had asserted counterclaims or other rights, how far the adjudication had progressed, and whether the petition clearly lacked merit. For a petition that was found clearly lacking in merit, withdrawal without prejudice was denied, and the petition was dismissed with prejudice. For a petition against which a counterclaim had been asserted, and adjudication of which had progressed nearly to trial, withdrawal was allowed without prejudice, on conditions intended to protect the respondent from prejudice. Finally, a petition which was not clearly without merit and which had not progressed nearly to trial, withdrawal without prejudice was allowed without conditions. Matter of Ancona, OATH Index Nos. 116/96, 621/96, 623/96 (Dec. 8, 1995), adopted, Loft Bd. Order Nos. 1904, 1906, 1909 (Jan. 24, 1996).

WITH PREJUDICE

A loft tenant's request to withdraw her challenge to a rent increase indicated that she wished to preserve a right to continue to contest the accuracy of the owner's application at some future time before another forum. The tenant was permitted to submit a letter withdrawing her challenge “with the understanding that the owner's rent increase application would be deemed granted,” but, absent such a submission, her withdrawal request was denied. Matter of Breson Corp., OATH Index No. 1758/99, mem. dec. (May 14, 1999).

Agency advocate moved to dismiss the charges because he was unable to produce complaining witnesses for trial. Administrative law judge denied the motion, as it was totally within agency's discretion to discontinue the case without need for a ruling on such a motion. Administrative law judge ordered agency to proceed to trial. Police Dep't v. Elcock, OATH Index No. 1890/99 (May 26, 1999).

Commission's unilateral withdrawal of pending case without prejudice not permitted. Administrative law judge found that OATH rule 2-26, which applies only to Human Rights cases, incorporated by reference OATH rule 1-32(f), which requires permission from an administrative law judge before a matter can be withdrawn without prejudice when it is not a final disposition of the case. Sound reasons of calendar control support an interpretation of the rule to require permission of an administrative law judge before a case can be withdrawn without prejudice. Comm'n on Human Rights ex rel. Blueweiss v. Metropolitan Life Insurance Co., OATH Index No. 852/99, mem. dec. (Mar. 29, 1999).

Under paragraph (f) of this rule, a party may withdraw a case from the calendar without making an application to the administrative law judge if the withdrawal is pursuant to a settlement agreement or other final disposition of the case. Petitioner placed its employee on pre-hearing involuntary leave pursuant to section 72 of the Civil Service Law. Prior to trial, petitioner restored the employee to duty and withdrew the case from the calendar. The employee made an application to the administrative law judge seeking back pay and restoration of leave credits expended during the period of pre-hearing involuntary leave. The administrative law judge denied the application, ruling that petitioner had the right to withdraw the case with prejudice, without the consent of the employee or the permission of the administrative law judge, and OATH did not have the authority to retain jurisdiction over issues subsidiary to the withdrawn petition. Teachers' Retirement System v. Barrett, OATH Index No. 1135/97 (Nov. 18, 1997), rev'd and remanded sub nom. Barrett v. Miller, 179 Misc. 2d 24 (Sup. Ct. N.Y. Co. 1998). On appeal, the court found that the employee's claims to entitlement to back pay and restoration of leave credits were not finally disposed of within the meaning of paragraph (f) when petitioner withdrew the matter from the calendar and the court remanded the matter to OATH to determine those issues.

Where petitioner's withdrawal of the case from the calendar pursuant to paragraph (f) of this section was done unilaterally, not by motion, and where both parties at the time of the withdrawal regarded that withdrawal as a final disposition of the case, the withdrawal constituted a final disposition of the case, and OATH did not have jurisdiction to consider respondent's motion to restore the case to the trial calendar. Human Resources Admin. v. Lampart, OATH Index No. 309/97, mem. dec. (Dec. 2, 1997).

The authority of the administrative law judge pursuant to paragraph (f) of this section to impose conditions on a petitioner's withdrawal of a case without prejudice does not apply to withdrawal with prejudice. Loft Bd. v. Tekosky, OATH Index No. 470/97, mem. dec. (Apr. 18, 1997).

One of the factors informing the discretion of the administrative law judge in determining whether to allow withdrawal without prejudice pursuant to paragraph (f) of this section is the merit of the application. Withdrawal of a petition that has no substantial likelihood of success should be with prejudice. Matter of Gala, OATH Index No. 582/97 (Dec. 9, 1996), adopted, Loft Bd. Order No. 2054 (Jan. 9, 1997).

WITHOUT PREJUDICE

Pursuant to subsection (f) of this section, administrative law judge denied petitioner's request to withdraw Loft Law coverage application without prejudice made on the eve of trial as unfairly prejudicial to the opposing party. Matter of Munzer, OATH Index Nos. 2109-10/01 (May 13, 2002), adopted, Loft Bd. Order No. 2743 (June 25, 2002).

A tenant, who was not a party to a proceeding brought by the Loft Board against a landlord, has no standing to object to the Loft Board's request to withdraw the case pursuant to paragraph (f) of this section. Loft Bd. v. Tekosky, OATH Index No. 470/97, mem. dec. (Apr. 18, 1997).

Where petitioner obtained a trial adjournment due to the unavailability of its principal witness, and where petitioner on the adjourn date sought to withdraw the case without prejudice due to the witness's non-cooperation, the request was granted without prejudice pursuant to paragraph (f) of this section, over respondent's objection that withdrawal should be with prejudice, on the condition that the case may be restored to the calendar only upon written application to the administrative law judge, on a showing that the witness will cooperate and appear for trial, including an affidavit to that effect by the witness. Health & Hospitals Corp. (Jacobi Medical Center) v. Arceo, OATH Index No. 161/97, mem. dec. (Nov. 12, 1996).

Where petitioner's case was based on the complaint of an out-of-state witness who twice failed to appear for scheduled trial dates, and petitioner had no other evidence to support the petition, petitioner's application for withdrawal of the case from the calendar pursuant to paragraph (f) of this section, and for dismissal of the petition, was granted. Police Dep't v. Tallarine, OATH Index No. 191/95 (Sept. 8, 1994).

Motion to Restore to Calendar

Disciplinary case against police officer had been adjourned three times and marked final. On the fourth trial date, petitioner withdrew the matter when the complainant did not appear on time. Petitioner's subsequent motion to vacate the “dismissal” of the charges was denied because the charges had been withdrawn by petitioner, and not dismissed by the judge. Administrative law judge advised petitioner it could make an application to restore the case to the calendar and petitioner did so two months later. Administrative law judge denied the motion to restore, based upon petitioner's unexplained delay in bringing the application and because petitioner's unilateral withdrawal was with prejudice pursuant to paragraph (f) of this rule. Further, to permit petitioner to restore the matter would render ineffective the administrative law judge's decision to mark the matter final. Police Dep't v. Ortega, OATH Index No. 580/99, mem. dec. (Aug. 6, 1999).