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(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 will be expected to know their availability and the availability of their witnesses for trial.
(Amended City Record 6/1/2015, eff. 7/1/2015; amended City Record 7/8/2016, eff. 8/7/2016; amended City Record 10/13/2021, eff. 10/13/2021)
(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 48 RCNY § 1-32(f). Copies of all written settlement agreements must be sent promptly to OATH.
(Amended City Record 6/1/2015, eff. 7/1/2015; amended City Record 7/8/2016, eff. 8/7/2016; amended City Record 10/13/2021, eff. 10/13/2021)
(a) The administrative law judge assigned to a settlement conference or a trial may require the parties to meet and confer prior to the settlement conference or prior to the trial, for the purpose of sharing and discussing settlement offers, upon application of either party or sua sponte. The administrative law judge may set a deadline by which the parties must meet and confer.
(b) Each party must participate in good faith and have present or readily accessible during these meetings an individual possessing the authority to settle the matter. All settlement offers made during this meet-and-confer period are confidential and inadmissible at the trial of any case.
(c) If the parties reach a settlement agreement, they must notify OATH immediately and promptly send the settlement agreement to OATH. If the parties do not reach a settlement, they must provide a pre-conference letter to the administrative law judge, pursuant to 48 RCNY § 1-31(a), or an equivalent pre-trial letter, at least twenty-four hours prior to appearing at the settlement conference or trial, respectively.
(Added City Record 12/6/2021, eff. 1/5/2022)
(b) Applications to adjourn conferences or trials must be made to the assigned administrative law judge as soon as the need for the adjournment becomes apparent. Applications for adjournments are addressed at the discretion of the administrative law judge, and will be granted only for good cause. Although consent of all parties to a request for an adjournment will be a factor in favor of granting the request, such consent will not by itself constitute good cause for an adjournment. Delay in seeking an adjournment will militate against grant of the request.
(c) If a party selects a trial or conference date without consulting with or obtaining the consent of another party pursuant to 48 RCNY § 1-26(d), an application for an adjournment of such date by that other party, especially if such application is based upon a scheduling conflict, will be decided with due regard to the ex parte nature of the case scheduling.
(d) An attorney must file an affirmation of actual engagement prior to a ruling on an adjournment sought on that basis. Such affirmation must state the name and nature of the conflicting matter, the court or tribunal hearing the matter, the judge before whom it is scheduled, the date that the conflicting engagement became known to counsel, and the date, time, place and approximate duration of the engagement.
(e) Approved adjournments, other than adjournments granted on the record, must be promptly confirmed in writing by the applicant, to all parties and to the administrative law judge.
(f) Withdrawal of a case from the calendar by the petitioner will not be subject to the "good cause" requirement of subdivision (b) of this section. However, such withdrawal, other than pursuant to settlement agreement or other final disposition of the case, will be permitted only upon application to the administrative law judge, who may grant or deny the application, either in full or upon stated terms and conditions.
(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.
(Amended City Record 6/1/2015, eff. 7/1/2015; amended City Record 7/8/2016, eff. 8/7/2016)
(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 48 RCNY § 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.
(Amended City Record 6/1/2015, eff. 7/1/2015; amended City Record 7/8/2016, eff. 8/7/2016; amended City Record 4/23/2021, eff. 5/23/2021)
(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 48 RCNY § 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 48 RCNY § 1-12; an application for an adjournment is also governed by 48 RCNY § 1-32; and an application for issuance of a subpoena is also governed by 48 RCNY § 1-43.
(Amended City Record 6/1/2015, eff. 7/1/2015; amended City Record 7/8/2016, eff. 8/7/2016)
Subchapter D: Trials and Hearings
All or portions of separate cases may be consolidated for trial, or portions of a single case may be severed for separate trials, in the discretion of the administrative law judge. Consolidation or severance may be ordered on motion or sua sponte, in furtherance of justice, efficiency or convenience.
The parties must have all of their witnesses available on the trial date. A party intending to introduce documents into evidence must bring to trial copies of those documents for the administrative law judge, the witness, and the other parties. Repeated failure to comply with this section may be cause for sanctions, as set forth in 48 RCNY § 1-13(e).
(Amended City Record 6/1/2015, eff. 7/1/2015; amended City Record 7/8/2016, eff. 8/7/2016)
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