Office of Administrative Trials and Hearings311Search all NYC.gov websites

Chapter I - Subchapter D

§ 1-52 Post-trial motions.

Procedure

TO WHOM MADE

Although noting that under this section, a post report and recommendation motion should be made to the deciding authority, who, in turn, could refer it to the presiding judge for disposition, ALJ agreed to decide such a motion to reopen record to submit new evidence made by petitioner, Health and Hospitals Corp. (Harlem Hospital Center) v. Norwood, OATH Index No. 143/05, mem. dec. (June 20, 2005), where adherence to regular process would have caused further unnecessary delay in the disposition of the disciplinary proceeding, which has remained undecided for six months.

Respondent failed to appear and the disciplinary hearing went forward in the form of an inquest. After the report and recommendation was issued, respondent's counsel moved to vacate the default. Under OATH rule 1-52, the application was required to be made to the agency head. Human Resources Admin. v. Smith, OATH Index No. 1110/03, mem. dec. (May 29, 2003).

Pursuant to this rule, respondents may address challenge to the Comptroller of the administrative law judge's finding of default before the Comptroller renders a final decision in the case. Office of the Comptroller v. IFD Construction Corp., OATH Index No. 901/98 (Jan. 26, 1998).

The respondent's motion for reconsideration of the recommended penalty was denied because, after issuance of the report and recommendation to the agency head, post-trial motions must be made to the agency head pursuant to this section. Dep't of Correction v. Spencer, OATH Index No. 1387/97, letter to counsel (Oct. 27, 1997).

After the administrative law judge rendered the report and recommendation on the record at the conclusion of trial, but before the trial and report and recommendation was transcribed and the transcript was forwarded to the deciding authority, post-trial motions are properly made to the administrative law judge pursuant to this rule, not to the deciding authority. Transit Auth. v. Rodriguez, OATH Index No. 1368/96, mem. dec. (May 20, 1996).

Particular Motions

MOTIONS TO REOPEN

Motion to reopen open the record to submit new evidence was denied where proffered evidence was not likely to change the outcome of the proceeding. Health & Hospitals Corp. (Harlem Hospital Center) v. Norwood, OATH Index No. 143/05, mem. dec. (June 20, 2005). After hearing ALJ found that employee's attendance violations were the result of his disability. Hospital sought to reopen record to submit medical officer's report opining that the employee was currently fit to work. ALJ found that the report that the hospital sought to add to the record did not contradict ALJ's finding that the employee suffered from depression at the time of the attendance violations, where the report was based largely on the fact that the employee's condition was in remission because she was currently in treatment and compliant with her medications.

Respondent's post-hearing motion to reopen to admit into evidence an unsolicited post-hearing affidavit from Step 1A conference leader was granted as material and relevant to an assessment of petitioner's chief witness' credibility. Petitioner's motion to submit a letter containing the preliminary investigatory findings of the State Health Department's investigation into this matter was denied on procedural grounds (it was not served on respondent) as well as on the merits. Health and Hospitals Corp. (Seaview Hospital Rehabilitation Center and Home) v. Rayside, OATH Index No. 972/99, mem. dec. (Apr. 15, 1999), rev'd, HHC Determination (June 15, 1999).

Petitioner's motion to reopen was properly addressed to OATH administrative law judge where judge had previously withdrawn the original report and recommendation to correct an error. Administrative law judge granted the motion to supplement the record with further proof on the issue of liability, noting that although petitioner had not made a compelling showing that the evidence to be offered was unavailable at the original hearing, the motion was unopposed and “the dictates of justice militate against penalizing a party for . . . oversight or error of law in not introducing material evidence during the course of the hearing that was then available.” Office of the Comptroller v. NAB Management Associates, Inc., OATH Index No. 2162/99, mem. dec. (Oct. 8, 1999).

Petitioner's motion to reopen was granted where evidence was unknown or unavailable at trial, appeared to be probative to a trial issue, might reasonably alter the outcome of the case and reopening would not prejudice respondent, who would have the opportunity to test the evidence at trial. Taxi and Limousine Comm'n v. Nawaz, OATH Index No. 1433/97, mem. dec. (Aug. 22, 1997).

Following trial held in the respondent's absence due to the respondent's failure to appear, the respondent's motion to reopen the record to permit the respondent to testify was denied, because, although the respondent established a reasonable excuse for his failure to appear at trial, he was unable to show that his testimony could support a meritorious defense to employee disciplinary charges that were based on criminal convictions. Health and Hospitals Corp. (Elmhurst Hospital Center) v. Stevens, OATH Index No. 447/98, mem. dec. (Nov. 7, 1997).

The petitioner's post-trial motion to reopen the record for admission of two affidavits was denied because the evidence was not unavailable at the time of trial and was not reasonably likely to alter the outcome of the trial, and because granting the motion would unfairly allow the petitioner to review the trial evidence and decide to address a disputed issue further. Bd. of Education v. Roman, OATH Index No. 1555/97 (Sept. 30, 1997).

The petitioner's post-trial motion to reopen the record pursuant to this section made before issuance of the report and recommendation, was granted where the petitioner showed that the evidence was unknown or unavailable at the time of trial, and the evidence was probative and would not prejudice the respondent. Taxi and Limousine Comm'n v. Nawaz, OATH Index No. 1433/97, mem. dec. (Aug. 22, 1997).

Where the respondent failed to appear for trial, but moved after trial to reopen the trial, the motion was denied because the respondent's motion established neither a reasonable excuse for his failure to attend trial nor a meritorious defense to the petition. Transit Auth. v. Rodriguez, OATH Index No. 1368/96, mem. dec. (May 20, 1996).

Post-trial motion by the respondent to re-open the record was denied where the proffered evidence would explain the significance of a circumstance that the trial evidence showed to be possible but highly improbable, such that the proffered evidence was merely speculative and theoretical. Dep't of Correction v. Mack, OATH Index No. 726/95 (May 22, 1995), aff'd, 240 A.D.2d 164 (1st Dep't 1997).

The respondent's post-trial motion to re-open the record to permit the respondent to present witness testimony was denied because the respondent had knowingly chosen at trial to rest its case solely on documentary evidence. Davidson v. Dep't of Correction, OATH Index No. 545/95 (Feb. 7, 1995).

Even absent the requisite showing on a motion to reopen the record, the administrative law judge has the discretion to reopen the record to afford the respondents an opportunity to be heard. Taxi and Limousine Comm'n v. Rolf, OATH Index Nos. 1111-16/93, mem. dec. (Jan. 28, 1994).

The respondent's application to re-open the trial to permit the respondent to testify was denied because none of the medical documentation proffered by the respondent showed that the respondent had been unable to appear for trial, especially in light of the fact that the respondent had appeared for pre-trial conferences and the fact that the respondent had traveled out-of-state during the pendency of the case. Dep't of Correction v. Wilson, OATH Index No. 590/93 (July 30, 1993).

The respondent's application to re-open the trial to permit the respondent to testify was denied because the conclusory assertion by respondent's counsel that the respondent had vital evidence to offer in her own defense did not substitute for an explanation of what that evidence was and how it might alter the outcome of the hearing. Dep't of Correction v. Wilson, OATH Index No. 590/93, mem. dec. (July 30, 1993).

Where the petitioner did not call the respondents during its case in chief or seek to reserve the right to call the respondents if they did not testify on their own behalf, grant of the petitioner's motion after summations to reopen the record to allow the petitioner to call the respondents, or to introduce transcripts of their pre-trial interviews, would be fundamentally unfair. Police Dep't v. Abbate, OATH Index Nos. 228/93, 230/93 (Nov. 2, 1992).

A post-trial motion for an indefinite delay of the issuance of the report and recommendation, in contemplation of the possibility of a motion to reopen the record following further investigation, was denied where movant provided no reason for delay in concluding his investigations, and there was no reason to expect that the evidence being pursued would be favorable to movant or that the evidence would be available in the near future. Dep't of Correction v. Grant, OATH Index No. 798/92 (Aug. 26, 1992).

A post-trial motion pursuant to this section to re-open the record before issuance of the trial decision is directed to the trial judge's discretion, and requires a showing that the movant has evidence that is material to the outcome of the case, that the evidence was not improperly withheld, and that the opposing party will not be prejudiced by grant of the motion. Transit Auth. v. O'Connell, OATH Index No. 1076/91, mem. dec. (Nov. 8, 1991).

MOTIONS TO REARGUE

Motions to reargue made after an ALJ has issued a final decision in a vehicle retention case should rarely be granted.  The appropriate avenue for review is an Article 78 proceeding.  Police Dep't v. Rodriguez-Toribio, OATH Index No. 302/10, mem. dec. (Oct. 9, 2009).

A motion to reargue, addressed to the discretion of the judge, is designed to afford a party an opportunity to establish that the judge overlooked or misapprehended relevant facts or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to the unsuccessful party to argue once again the very questions previously decided. Dep't of Education v. Brust, OATH Index No. 2280/07, mem. dec. (Nov. 7, 2007).

A motion for reargument, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended relevant facts or misapplied a controlling principle of law. Counsel for petitioner sought to renew its request to call a conference judge as a witness. The original motion was denied under OATH rule 1-31(b), which prohibits parties from calling an administrative law judge as a witness if the subject of the testimony concerns statements made at a settlement conference. In the motion for reargument, counsel argued only that the information presented at the settlement conference was outside the context of settlement negotiations because it led to new charges related to the same incident that was the subject of the conference. The administrative law judge found that counsel had an opportunity to make that argument in the original motion and could not raise it on reargument. Dep't of Buildings v. Goldberg, OATH Index No. 652/03, mem. dec. (Jan. 24, 2003).

MOTIONS TO VACATE DEFAULTS

In a padlock proceeding, the building owner made a post-report and recommendation motion to the Commissioner to vacate his default. Motion is denied as Commissioner found the owner did not show a reasonable excuse for his failure to appear (he merely alleged that he misread the notice) or a meritorious defense to the allegation of illegal commercial use of the premises in a residential zone (owner's claim that he was not engaged in commercial activity), where the proof showed storage of unlicensed motor vehicles (dead storage of motor vehicles) in violation of the Zoning Resolution. Dep't of Buildings v. Owners, Occupants and Mortgagees of 144-11 Lackwood Avenue, OATH Index No. 176/06 (Sept. 27, 2005), aff'd and motion to vacation default denied, Comm'r Dec. (Sept. 29, 2005).

Administrative law judge may hear a motion to vacate default prior to the issuance of the report and recommendation to the agency head for final action. Human Resources Admin. v. Thomas, OATH Index No. 190/05, mem. dec. (Dec. 8, 2004).

Motion to vacate default pursuant to section 1-06(i)(2) of the Loft Board's rules is granted as it is the public policy of New York State that a party should not be prejudiced by the running of a statute of limitations in the period following the disaster at the World Trade Center. Matter of Haley, OATH Index No. 355/02, mem. dec. (Dec. 6, 2001).

In a padlock proceeding, defaulting owner/occupant moved to vacate default. Administrative law judge found that owner/occupant failed to set forth meritorious defense to allegation of illegal commercial use of residentially zoned premises, but she permitted reopening of the record for the limited purpose of allowing the owner/occupant to offer testimony as to whether padlocking would impair residential access to the premises. The commissioner ruled that the administrative law judge erred when she reopened the record for that purpose, finding the access issue was not a proper subject for adjudication before the administrative law judge, based upon her interpretation that the padlock law leaves the choice of the method of enforcement to the Department, post-adjudication. Dep't of Buildings v. Owners, Occupants, Mortgagees of 1410-1414 Vyse Avenue, Bronx, OATH Index No. 699/02, mem. dec. (Mar. 21, 2002), rev'd, Commissioner's Memorandum Decision (Aug. 16, 2002).

Motion to vacate default denied where papers did not provide adequate proof of the reason the respondent failed to attend, and because they did not assert that the respondent had a meritorious defense. Dep't of Correction v. Patrick, OATH Index No. 871/02, mem. dec. (Mar. 13, 2002).

A motion to vacate a default was granted where respondent was incarcerated on the date of the hearing and notice issues (recent notices had been returned) provided a reasonable excuse for non-appearance. Also, respondent established meritorious defenses to allegations of excessive absenteeism, AWOLs, and abusive language. Health and Hospitals Corp. (Jacobi Hospital Center) v. Velez, OATH Index No. 748/01, mem. dec. (May 18, 2001).

Administrative law judge granted motion to vacate default based on pro se respondent's notation on respondent's calendar of the wrong date for the hearing. Dep't of Buildings v. Owners, Occupants and Mortgagees of 1517 Rowland Street, Bronx, OATH Index No. 896/00, mem. dec. (Mar. 13, 2000).

Motion to vacate default was denied where party put forth an insufficient explanation for his failure to appear, i.e., he forgot about the hearing, and he gave no indication of a meritorious defense. Dep't of Correction v. Heyward, OATH Index No. 2041/00 (July 18, 2000).

Motion to vacate default denied for failure to submit a more complete showing in support of the motion, as previously instructed by the administrative law judge. Taxi and Limousine Comm'n v. Mohammad, OATH Index Nos. 173-75/99 (Oct. 6, 1998), modified on penalty, Comm'n Dec. (Feb. 10, 1999).

Respondent, who appeared shortly after the conclusion of the trial, moved to vacate his default, stating that he had been in the building for almost two hours and that he had been misdirected to TLC's offices. Respondent made motion to vacate his default on the record before the administrative law judge and with petitioner's counsel present. Judge granted respondent's motion. Taxi and Limousine Comm'n v. Singh, OATH Index No. 618/00 (Dec. 20, 1999).

After a default determination, respondent was terminated from his position and appealed to the Civil Service Commission. The Commission ruled that no appeal lies from a default, but provided respondent time to file a motion to vacate his default. Administrative law judge denied the motion to vacate, finding respondent did not meet the good cause standard to excuse his default and that the motion to vacate was untimely. Fire Dep't v. Parker, OATH Index No. 2003/99 (July 7, 1999), aff'd, NYC Civ. Serv. Comm'n Item No. CD 99-92-SA (Aug. 31, 1999), reaffirmed, NYC Civ. Serv. Comm'n Item No. CD 99-117-A (Nov. 19, 1999).

The respondent's post-trial motion to vacate his trial default was denied because the respondent had deliberately chosen not to attend trial due to the pendency of his federal civil rights action against the petitioner. Bd. of Education v. Clarke, OATH Index No. 285/95 (Feb. 2, 1995), aff'd, 251 A.D.2d 403 (2d Dep't 1998).

A motion to vacate a trial default was denied where the respondent acknowledged the validity of the petition and his only articulated reason for failing to appear at trial was that he forgot. Conflicts of Interest Bd. v. Sixty-Two City Employees, OATH Index Nos. 593/94 et al. (Apr. 8, 1994).

Although an attorney who had not been retained by any party, and who appeared at trial as an officer of the court lacked standing to move to vacate the respondent's trial default, the administrative law judge vacated the default sua sponte based on information produced by the attorney demonstrating that service of the petition on the respondent had been inadequate under section 1-23(b) of this chapter. Taxi and Limousine Comm'n v. Larch Cab Corp., OATH Index No. 363/94, mem. dec. (Nov. 29, 1993).

A respondent's motion to vacate a trial default, if made after trial but before issuance of a decision, may be granted upon the respondent's showing of an excuse for the default and a meritorious defense to the petition. Human Resources Admin. v. Rice, OATH Index No. 455/93, mem. dec. (Apr. 7, 1993).

A respondent's post-trial motion pursuant to this section to vacate her trial default is addressed to the trial judge's discretion, and requires a showing that the default was excusable, and that the respondent has a legally viable and factually substantial trial defense. Transit Auth. v. O'Connell, OATH Index No. 1076/91, mem. dec. (Nov. 8, 1991).

TO VACATE STIPULATION OF SETTLEMENT

Respondent's motion to vacate and set aside a stipulation of settlement was denied as there was no longer an active case before OATH. The stipulation constituted a final disposition of the padlock proceeding which could not be set aside without petitioner's consent. Dep't of Buildings v. Owners, Occupants and Mortgagees of 1565 Grand Avenue, Bronx, OATH Index No. 1074/98, mem. dec. (July 2, 1998).

Administrative law judge denies respondent's motion to reopen the record after a settlement because OATH lacks the authority to unilaterally rescind such an agreement. Dep't of Health v. Khedr, OATH Index No. 144/99, mem. dec. (Nov. 12, 1998).

MOTION TO DISMISS

Petitioner moved to dismiss the disciplinary charges due to inability to produce complaining witnesses for trial. Administrative law judge denied the motion, holding it was totally within petitioner's discretion to unilaterally discontinue the case without need for a ruling. Judge ordered agency to proceed to trial. Police Dep't v. Elcock, OATH Index No. 1890/99 (May 26, 1999).

MOTIONS FOR NEW TRIALS

The respondent's post-trial motion for a new trial was denied where the respondent's counsel, retained by the respondent after trial at which the respondent appeared pro se, proffered new evidence relevant to penalty, but not to the merits of the petition. However, the motion was construed to include a request, in the alternative, to re-open the record for submission of additional evidence, and that alternative request was granted. Human Resources Admin. v. Brown, OATH Index No. 1557/95 (Dec. 1, 1995).

MOTION TO SUPPLEMENT RECORD

Motion to supplement the record made before issuance of report and recommendation denied where the documents offered would not affect the outcome or the penalty recommendation. Dep't of Sanitation v. Manzi, OATH Index No. 1753/01 (Dec. 4, 2001).