Where necessary under the provision of law governing a particular category of cases, the agency head will designate the chief administrative law judge of OATH, or suchadministrative law judges as the chief administrative law judge may assign, to hear such cases.
(a) The petitioner must serve the respondent with the petition. The petition must be accompanied by a notice of the following: the respondent's right to file an answer and the deadline to do so under § 1-24; the respondent's right to representation by an attorney or other representative; and the requirement that a person representing the respondent must file a notice of appearance with OATH. The notice must include the statement that OATH's rules of practice and procedure are published in Title 48 of the Rules of the City of New York, and that copies of OATH's rules are available at OATH's offices or on OATH's website.
(b) Service of the petition must be made pursuant to statute, rule, contract, or other provision of law applicable to the type of proceeding being initiated. Absent any such applicable law, service of the petition must be made in a manner reasonably calculated to achieve actual notice to the respondent. Service by certified mail, return receipt requested, contemporaneously with service by regular first-class mail, will be presumed to be reasonably calculated to achieve actual notice. Appropriate proof of service must be maintained.
(c) A copy of the petition and accompanying notices, with proof of service, must be filed with OATH at or before the commencement of the trial.
Go Here for Annotation 1-23
The respondent may serve and file an answer to the petition within eight days of service of the petition if service was personal, or within thirteen days of service of the petition if service was by mail, unless a different time is fixed by the administrative law judge. In the discretion of the administrative law judge, the respondent may be required to serve and file an answer. Failure to file an answer where required, may result in sanctions, including those specified in § 1-33(e).
Amendments of pleadings must be made as promptly as possible. If a pleading is to be amended less than twenty-five days before the commencement of the trial, amendment may be made only on consent of the parties or by leave of the administrative law judge on motion.
Go Here for Annotation 1-25
(e) Each case docketed with the Trials Division is subject to review by the Chief Administrative Law Judge who shall determine whether the case shall proceed at the Trials Division or be removed to the Hearings Division.
Go Here for Annotation 1-26
(a) When a case is placed on either the trial calendar or the conference calendar, and within the time provided in § 1-26(d), if applicable, the party that placed the case on the calendar must serve each other party with notice of the following: the date, the time and, if applicable, the place of the trial or conference and whether the OATH Trials Division has determined if it will be held in person or by remote means; each party's right to representation by an attorney or other representative at the trial or conference; the requirement that a person representing a party at the trial or conference must file a notice of appearance with OATH prior to the trial or conference; and, in a notice of a trial served by the petitioner, the fact that failure of the respondent or an authorized representative of the respondent to appear at the hearing may result in a declaration of default, and a waiver of the right to a trial or other disposition against the respondent. The notice may be served personally, by mail, or, upon consent of the parties, by e-mail, and appropriate proof of service must be maintained. A copy of the notice of conference, with proof of service, must be filed with OATH at or before the commencement of the conference. A copy of the notice of trial, with proof of service, must be filed with OATH at or before the commencement of the trial.
(b) When multiple petitions against a single respondent, or petitions against multiple respondents, are placed on the calendar or calendar conference for joint trial or conference pursuant to § 1-26(a), notice of trial or notice of conference pursuant to this section must include notice of such joinder.
Go Here for Annotation 1-28
In the discretion of the administrative law judge, and whether or not a case has been on the conference calendar, conferences may be scheduled on application of either party or sua sponte.
(a) All parties are required to appear at conferences as scheduled unless timely application is made to the administrative law judge. Participants must be prompt and prepared to begin on time. No particular format for conducting the conference is required. The structure of the conference may be tailored to the circumstances of the particular case. The administrative law judge may propose mediation and, where the parties consent, may refer the parties to the Center for Creative Conflict Resolution or other qualified mediators.
(b) At the conference, all parties must be fully prepared to discuss all aspects of the case, including the formulation and simplification of issues, the possibility of obtaining admissions or stipulations of fact and of admissibility or authenticity of documents, the order of proof and of witnesses, discovery issues, legal issues, pre-hearing applications, scheduling, and settlement of the case.
(c) In the event that the case is not settled at the conference, outstanding pre-trial matters, including discovery issues, must be raised during the conference. In the event that the case is not settled at the conference, a trial date may be set, if such a date has not already been set. The parties must be expected to know their availability and the availability of their witnesses for trial.
(a) Prior to a conference at which settlement is to be discussed, the administrative law judge assigned to the conference may require each party to provide a pre-conference letter. The pre-conference letter must be sent solely to the administrative law judge by fax or e-mail and marked prominently “CONFIDENTIAL MATERIAL FOR USE AT SETTLEMENT CONFERENCE.” The pre-conference letter must state succinctly:
(1) the history of settlement negotiations, if any;
(2) the party’s settlement offer and the rationale for it; and
(3) any other facts that would be helpful to the administrative law judge in preparation for the conference.
(b) If settlement is to be discussed at the conference, each party must have an individual possessing authority to settle the matter, either present at the conference or readily accessible. All individuals participating in the conference shall be present or readily accessible either in person or, at the discretion of the OATH Trials Division, by remote means, as applicable. A settlement conference will be conducted by an administrative law judge or other individual designated by the Chief Administrative Law Judge, other than the administrative law judge assigned to hear the case. During settlement discussions, upon notice to the parties, the administrative law judge or other person conducting the conference may confer with each party and/or representative separately.
(c) All settlement offers, whether or not made at a conference, will be confidential and will be inadmissible at trial of any case. Administrative law judges or other individuals designated by the Chief Administrative Law Judge to conduct settlement conferences must not be called to testify in any proceeding concerning statements made at a settlement conference.
(d) A settlement must be reduced to writing, or, in the discretion of the administrative law judge, placed on the record. In the event that a settlement is reached other than at a conference, OATH must be notified immediately pursuant to § 1-32(f). Copies of all written settlement agreements must be sent promptly to OATH.
Go Here for Annotation 1-31
(g) At the discretion of the administrative law judge, a grant of an adjournment may be conditioned upon the imposition of costs for travel, lost earnings and witness fees, which may be assessed against the party causing the need for an adjournment.
(h) If an administrative law judge determines that a case is not ready for trial or conference and that an adjournment is inappropriate, the judge may remove the case from the calendar. Unless otherwise directed by the administrative law judge, the case will be administratively closed if the parties do not restore the matter to the calendar within 30 days.
Go Here for Annotation 1-32
(a) Requests for production of documents, for identification of trial witnesses, and for inspection of real evidence to be introduced at the trial may be directed by any party to any other party without leave of the administrative law judge.
(b) Depositions must only be taken upon motion for good cause shown. Other discovery devices, including interrogatories, will not be permitted except upon agreement among the parties or upon motion for good cause shown. Demands for bills of particulars will be deemed to be interrogatories. Resort to such extraordinary discovery devices will not generally be cause for adjournment of a conference or trial.
(c) Discovery must be requested and completed promptly, so that each party may reasonably prepare for trial. A demand for identification of witnesses, for production of documents, or for inspection of real evidence to be introduced at trial must be made not less than twenty days before trial, or not less than twenty-five days if service of the demand is by mail. An answer to a discovery request must be made within fifteen days of receipt of the request, or within ten days if service of the answer is by mail. An objection to a discovery request must be made as promptly as possible, but in any event within the time for an answer to that request. Different times may be fixed by consent of the parties, or by the administrative law judge for good cause. Notwithstanding the foregoing time periods, where the notice of the trial is served less than twenty-five days in advance of trial, discovery must proceed as quickly as possible, and time periods may be fixed by consent of the parties or by the administrative law judge.
(d) (1) Parties are encouraged to resolve discovery disputes without the intervention of an administrative law judge. A party objecting to discovery should immediately commence discussion with the requesting party to clarify and possibly resolve the dispute.
(2) Any unresolved discovery dispute must be presented to the assigned administrative law judge sufficiently in advance of the trial to allow a timely determination. A written motion to compel discovery must be served on all parties and the administrative law judge assigned to conduct the trial. The motion must state what efforts the parties have made to resolve discovery disputes. Any party objecting to a discovery motion must state, in writing, the grounds for the objection. In deciding whether to grant a request, the administrative law judge may consider the timeliness of discovery requests and responses and of discovery-related motions, the complexity of the case, the need for the requested discovery, and the relative resources of the parties.
(3) In ruling upon a discovery motion, the administrative law judge may deny the motion, order compliance with a discovery request, order other discovery, or take other appropriate action. The administrative law judge may grant or deny discovery upon specified conditions, including payment by one party to another of stated expenses of the discovery. Failure to comply with an order compelling discovery may result in imposition of appropriate sanctions upon the disobedient party, attorney or representative, such as the sanctions set forth in § 1-13(e), the preclusion of witnesses or evidence, drawing of adverse inferences, or, under exceptional circumstances, removal of the case from the calendar, dismissal of the case, or declaration of default.
(4) On his or her own motion or on the motion of any of the parties, the administrative law judge may issue a protective order denying, limiting, or conditioning the use of any discovery device available under subdivisions (a) or (b) of this section, in order to prevent the inappropriate use of such device.
Go Here for Annotation 1-33
(a) Pre-trial motions will be consolidated and addressed to the administrative law judge as promptly as possible, and sufficiently in advance of the trial to permit a timely decision to be made. Delay in presenting such a motion may, in the discretion of the administrative law judge, weigh against the granting of the motion, or may lead to the granting of the motion upon appropriate conditions.
(b) A moving party must request in writing an informal conference with the administrative law judge before any dispositive motion will be heard. The request must, in no more than two pages, set forth the nature of the motion.
(c) The administrative law judge may in his or her discretion permit pre-trial motions to be made orally, including by telephone, electronic means or in writing. The administrative law judge may require the parties to submit legal briefs on any motion. Parties are encouraged to make pre-trial motions, or to conduct preliminary discussions and scheduling of such motions, by conference telephone call or by electronic means to the administrative law judge.
(d) When a motion is made on papers, the motion papers must state the grounds upon which the motion is made and the relief or order sought. Motion papers must include notice to all other parties of their time pursuant to subdivision (d) of this section to serve papers in opposition to the motion. Motion papers and papers in opposition must be served on all other parties, and proof of service must be filed with the papers. The filing of motion papers or papers in opposition by a representative who has not previously appeared will constitute the filing of a notice of appearance by that representative, and must conform to the requirements of § 1-11(b).
(e) Unless otherwise directed by the administrative law judge upon application or sua sponte, the opposing party must file and serve responsive papers no later than eight days after service of the motion papers if service of the motion papers was personal or by electronic means, and no later than thirteen days after service if service of the motion papers was by mail.
(f) The moving party must not file reply papers unless authorized by the administrative law judge, and oral argument will not be scheduled except upon the direction of the administrative law judge.
(g) Nothing in this section limits the applicability of other provisions to specific pre-trial motions. For instance, an application for withdrawal or substitution of counsel is also governed by § 1-12; an application for an adjournment is also governed by § 1-32; and an application for issuance of a subpoena is also governed by § 1-43.
Go Here for Annotation 1-34