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The Petitioner or Respondent may request that a hearing be rescheduled to a later date. A request by a Respondent to reschedule must be received by the Tribunal prior to the time of the scheduled hearing. If a Petitioner requests to reschedule, the Petitioner must notify the Respondent at least three (3) days prior to the originally-scheduled hearing date and file proof of that notification with the Tribunal. Respondent may, on a form provided by the Tribunal, waive its right to such notice of the Petitioner's request to reschedule. If a Petitioner fails to provide such proof of notification or waiver, the request will be denied and the hearing will proceed as originally scheduled. Good cause is not necessary for a request to reschedule. No more than one (1) request to reschedule will be granted for each party for each summons.
(Amended City Record 6/1/2015, eff. 7/1/2015; amended City Record 7/8/2016, eff. 8/7/2016)
Discovery may be obtained in the following manner:
(a) Upon written request received by the opposing party at least five business days prior to the scheduled hearing date, any party is entitled to receive from the opposing party a list of the names of witnesses who may be called and copies of documents intended to be submitted into evidence.
(b) Pre-hearing discovery shall be limited to the matters enumerated above. All other applications or motions for discovery shall be made to a Hearing Officer at the commencement of the hearing and the Hearing Officer may order such further discovery as is deemed appropriate in his or her discretion.
(c) Upon the failure of any party to properly respond to a lawful discovery order or request or such party's wrongful refusal to answer questions or produce documents, the Hearing Officer may take whatever action he or she deems appropriate including but not limited to preclusion of evidence or witnesses. It shall not be necessary for a party to have been subpoenaed to appear or produce documents at any properly ordered discovery proceeding for such sanctions to be applicable.
(Amended City Record 6/1/2015, eff. 7/1/2015; amended City Record 7/8/2016, eff. 8/7/2016)
Subchapter C: Hearings
(a) Issuance and Filing of Summons.
(1) The petitioner must file an original or a copy of the summons, together with proof of service, with the Tribunal prior to the first scheduled hearing date. Electronic filing of the summons and proof of service is required unless the Tribunal grants an exception. Failure to timely file all proofs of service shall not divest the Tribunal of jurisdiction to proceed with a hearing or to issue a default order.
(2) Notwithstanding paragraph one of this subdivision, where property has been seized, the Tribunal may adjudicate a summons after it is served and before it is filed.
(3) Each case docketed with the Hearings Division is subject to review by the Chief Administrative Law Judge, who shall determine whether the case shall proceed at the Hearings Division or be removed to the Trials Division.
(b) Service of the Summons. There must be service of the summons.
(1) Service of a summons in the following manner will be considered sufficient:
(i) The summons may be served in person upon:
(A) the person alleged to have committed the violation,
(B) the permittee, licensee or registrant,
(C) the person who was required to hold the permit, license or to register,
(D) a member of the partnership or other group concerned,
(E) an officer of the corporation,
(F) a member of a limited liability company,
(G) a managing or general agent, or
(H) any other person of suitable age and discretion as may be appropriate, depending on the organization or character of the person, business or institution charged.
(ii) Alternatively, the summons may be served by mail deposited with the U.S. Postal Service, or other mailing service, to any such person at the address of the premises that is the subject of the summons or, as may be appropriate, at the residence or business address of:
(A) the alleged violator,
(B) the individual who is listed as the permittee, licensee or applicant in the permit or license or in the application for a permit or license,
(C) the registrant listed in the registration form, or
(D) the person filing a notification of an entity's existence with the applicable governmental agency where no permit, license or registration is required.
If the summons is served by mail, documentation of mailing will be accepted as proof of service of the summons.
(2) A summons may be served pursuant to the requirements of Section 1049-a(d)(2) of the Charter, 35 RCNY Chapter 68, or as provided by the statute, rule, or other provision of law governing the violation alleged. For the purpose of serving a summons pursuant to Section 1049-a(d)(2)(a)(i) of the Charter and (ii), the term "reasonable attempt" as used in Section 1049-a(d)(2)(b) of the Charter may be satisfied by a single attempt to effectuate service upon the Respondent, or another person upon whom service may be made, in accordance with Article 3 of the Civil Practice Law and Rules or Article 3 of the Business Corporation Law.
(3) The Tribunal's decision may be automatically docketed in Civil Court where the summons has been served in accordance with Section 1049-a(d)(2) of the Charter or the statute or rule providing for such docketing. Where a summons is lawfully served in a manner other than that provided in Section 1049-a(d)(2) of the Charter or such other provision of law, the Tribunal may hear and determine such summons but the decision will not be automatically docketed in Civil Court or any other place provided for entry of civil judgments without further court proceedings.
(c) Contents of Summons. The summons must contain, at a minimum:
(1) The name and address, when known, of a Respondent;
(2) A clear and concise statement sufficient to inform the Respondent with reasonable certainty and clarity of the essential facts alleged to constitute the violation or the violations charged, including the date, time where applicable, and place when and where such facts were observed;
(3) Information adequate to provide specific notification of the section or sections of the law, rule or regulation alleged to have been violated;
(4) Information adequate for the Respondent to calculate the maximum penalty authorized to be imposed if the facts constituting the violation are found to be as alleged;
(5) Notification of the date, time and place when and where a hearing will be held by the Tribunal or instructions to the Respondent on how to schedule a hearing date. Such date must be at least fifteen (15) calendar days after the summons was served, unless another date is required by applicable law. Where Respondent waives the fifteen (15) day notice and requests an expedited hearing, the Tribunal may assign the case for immediate hearing, upon appropriate notice to Petitioner and opportunity for Petitioner to appear.
(6) Notification that failure to appear at the place, date and time designated for the hearing will be deemed a waiver of the right to a hearing, thereby authorizing the rendering of a default decision; and
(7) Information adequate to inform the Respondent of his or her rights under 48 RCNY § 6-09.
(d) In the interest of convenient, expeditious and complete determination of cases involving the same or similar issues or the same parties, the Tribunal may consolidate two (2) or more summonses for adjudication at one (1) hearing.
(e) Where a Petitioner withdraws a summons, even if it has been adjudicated, is open or has been decided by the Tribunal, the Petitioner must promptly notify the Tribunal and the Respondent in writing. Thereafter the Tribunal will issue a decision indicating the summons has been withdrawn.
(Amended City Record 6/1/2015, eff. 7/1/2015; amended City Record 7/8/2016, eff. 8/7/2016; amended City Record 6/18/2021, eff. 7/18/2021)
(a) A Respondent may appear for a hearing personally or be represented by:
(1) an attorney admitted to practice law in New York State,
(2) a representative registered to appear before the Tribunal pursuant to 48 RCNY § 6-23, or
(3) any other person authorized by a Respondent to appear at or before the Tribunal on behalf of the Respondent, as set forth in 48 RCNY § 6-23(a).
(b) Respondents may appear for a hearing by:
(1) Appearing themselves or by representative on the date and time scheduled for the hearing by telephone, videoconference, or similar remote means; or
(2) Appearing themselves or by representative in person at the place, date, and time scheduled for the hearing, provided that where the Respondent wishes to proceed in person, the Respondent or the Respondent's representative must make a request for an in-person hearing by e-mailing the Clerk's Office at the e-mail address designated to process in-person hearing requests five (5) business days prior to the scheduled hearing date; or
(3) Appearing by written communication, including postal mail, written online communication, or by other similar remote means, pursuant to 48 RCNY § 6-10, when the opportunity to do so is offered by the Tribunal.
(c) An appearance is timely if the Respondent or Respondent’s representative appears at the scheduled hearing location in person or by telephone, videoconference, or similar remote means, and is ready to proceed within three (3) hours of the scheduled hearing time indicated on each summons to be heard or, where applicable, within three (3) hours of the scheduled hearing time indicated on an adjournment or reschedule notice for each summons to be heard. However, a representative, attorney, or Respondent appearing on fifteen (15) or more summonses on a given hearing date must also comply with the requirements set forth in 48 RCNY § 6-24 or § 6-24a to be considered timely.
(d) The failure to make a timely appearance constitutes a default and may subject the Respondent to penalties in accordance with 48 RCNY § 6-20.
(e) Where the terms of a summons authorize a Respondent to do so, a Respondent may also appear by admitting the violation charged on the summons and paying the penalty for the cited violation in the manner and by the time directed in the summons. Payment in full is deemed an admission of liability and no further hearing or appeal will be allowed.
(f) Current Owner of a Property.
(1) Notwithstanding the foregoing, if a prior owner of a property is named on the summons, the current owner of a property may appear on behalf of the prior owner if the summons:
(A) involves a premises-related violation, and
(B) was issued after title to the property was transferred to the current owner.
(2) The current property owner may appear for purposes of presenting a deed and indicating when title passed.
(3) The current owner of the property may also present a defense on the merits of the charge only if the current owner agrees to substitute him or herself for the prior owner and waives all defenses based on service.
(g) Failure to Appear by Respondent. A Respondent’s failure to appear timely pursuant to subsections (b), (c) and (d) of this section, or to make a timely request to reschedule pursuant to 48 RCNY § 6-05, constitutes a default and subjects the Respondent to penalties in accordance with 48 RCNY § 6-20.
(h) Notwithstanding any other provision of this section, attorneys or registered representatives who appear in person on fifteen (15) or more summonses on a given hearing date, and those who appear remotely on any matter, must comply with the requirements set forth in 48 RCNY § 6-24 and 48 RCNY § 6-24a respectively. Failure to do so constitutes a default and subjects the Respondent to penalties in accordance with 48 RCNY § 6-20.
(i) A Petitioner may appear for a hearing through an authorized representative at the place, date, and time scheduled for the hearing or by remote methods when the opportunity to do so is offered by the Tribunal. If Petitioner elects to appear at the Tribunal, Petitioner’s appearance for a hearing is considered timely if Petitioner is ready to proceed within thirty (30) minutes of the timely appearance by Respondent.
(j) Failure to Appear by Petitioner. If Petitioner fails to make a timely appearance at the scheduled place, date, and time, pursuant to subdivision (i) of this section, the hearing may proceed without the Petitioner.
(Amended City Record 6/1/2015, eff. 7/1/2015; amended City Record 7/8/2016, eff. 8/7/2016; amended City Record 12/5/2018, eff. 1/4/2019; amended City Record 10/13/2021, eff. 10/13/2021; amended City Record 8/11/2022, eff. 9/10/2022)
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