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Subchapter D: Appeals
(a) Filing an appeal.
(1) A party may appeal a decision of a Hearing Officer in whole or in part. An appeal will be considered by the Tribunal only upon timely completion of the following requirements:
(i) The party seeking to appeal the decision of a Hearing Officer must file the appeal with the Tribunal within thirty (30) days of the date of the Hearing Officer's decision, or within thirty-five (35) days if the decision was mailed, and the filing must contain proof that the appealing party served a copy of the appeal on the nonappealing party;
(ii) The appeal must be in writing and contain a concise statement of the issues, which must include specific objections to the findings of fact and conclusions of law in the Hearing Officer's decision, and the points of law and facts that support each objection. The appeal may be on a form prescribed by the Tribunal.
(iii) Where a respondent appeals, that respondent must indicate in writing that payment of any fines, penalties or restitution imposed by the decision has been made in full, unless:
(A) Respondent is granted a waiver of prior payment of fines, penalties or restitution due to financial hardship, as provided in subdivision (b) of this section;
(B) Respondent received a waiver of prior payment of fines or penalties as otherwise provided in law, rules or regulations;
(C) Respondent opted for community service in lieu of a monetary penalty at the hearing; or
(D) The agency responsible for collecting payment of the fines or penalties imposed enters into a payment plan with the Respondent prior to or at the time of the filing of the appeal.
(2) A party may not appeal a decision rendered on default, a denial of a request for new hearing after default (motion to vacate a default), or a plea admitting the violations charged.
(b) Financial hardship. An application to the Tribunal for a waiver of prior payment due to financial hardship must be made before or at the time of the filing of the appeal and must be supported by evidence of financial hardship. The Chief Administrative Law Judge or his or her designee has sole discretion to grant or deny a waiver due to financial hardship. Application for a waiver does not extend the time to appeal.
(c) Responding to an appeal. Except as provided in 48 RCNY § 5-04, the non-appealing party may file a response to the appeal within thirty (30) days of being served with the appeal, or thirty-five (35) days if served by mail. The response must be in writing, served on the appealing party, and filed with the Tribunal with proof of such service within the time allotted. The response may be on a form prescribed by the Tribunal.
(d) Requests for Extensions of time.
(1) A party who requests an extension of time to file an appeal or respond to an appeal will receive one automatic extension of thirty (30) days from the date the Appeals Unit grants the request. Any further requests for an extension will be granted for good cause shown.
(2) All parties are entitled to request a copy of the hearing recording from the Appeals Unit. Any requests for hearing recordings will not further extend the party's time to appeal as set forth in Subsection (1) of this subdivision.
(3) Requests under Subsection (1) of this subdivision must be made in writing within the time allotted to file an appeal or a response, served on all parties, and timely filed with the Tribunal with proof of service. Requests for an extension may be on a form prescribed by the Tribunal.
(4) Unless one of the exceptions in Subdivision (a)(1)(iii) of this section applies, a request for an extension of time to file an appeal does not extend the time by which the Respondent must pay the penalty pursuant to 48 RCNY § 6-18.
(e) Further filings on an appeal with the Tribunal by either party will not be considered unless requested by the Appeals Unit.
(f) Review of an Appeal.
(1) Appeals decisions are made upon the record of the hearing. The record of the hearing includes all items enumerated in 48 RCNY § 6-11(g).
(2) The Appeals Unit will only consider evidence that was offered to the Hearing Officer at the hearing; provided however, upon good cause shown, the Appeals Unit may consider dispositive government records, such as a death certificate or deed, that establish a material fact or defense.
(3) In all cases other than those subject to 48 RCNY § 5-04, the Tribunal will decide an appeal even if there is no hearing recording.
(g) Appeals Decision.
(1) When an appeal is filed, the Appeals Unit will determine whether the facts contained in the findings of the Hearing Officer are supported by a preponderance of the evidence in the record, and whether the determinations of the Hearing Officer, as well as the penalties imposed, are supported by law. Except as provided in 48 RCNY §§ 3-15, 5-04 and 5-05, the Appeals Unit has the power to affirm, reverse, remand or modify the decision appealed from.
(2) Except as provided in 48 RCNY §§ 3-15, 5-04 and 5-05, the Appeals Unit will promptly issue a written decision. Such decision is the final determination of the Tribunal, and judicial review of such decision may be sought pursuant to Article 78 of the New York Civil Practice Law and Rules. A copy of the decision will be delivered to the Petitioner and served on the Respondent by mail, stating the grounds upon which the decision is based. Where appropriate, the decision will order the repayment to the Respondent of any penalty that has been paid.
(3) For summonses returnable to the Tribunal as authorized by the Board pursuant to Section 1049-a of the Charter and provisions of the New York City Administrative Code, any rules and regulations made thereunder, or provisions of New York State law, any decision of the Appeals Unit is a recommended decision to the Board. The Board or a panel consisting of members thereof will review the recommended decision and issue a final determination pursuant to 48 RCNY § 3-15.
(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 6/18/2020, eff. 7/18/2020)
Subchapter E: Defaults
(a) A Respondent who fails to appear or to make a request to reschedule as required by these rules will be deemed to have defaulted.
(b) Upon such default, without further notice to the Respondent and without a hearing being held, all facts alleged in the summons will be deemed admitted, the Respondent will be found in violation and the penalties authorized by applicable laws, rules and regulations will be applied.
(c) Decisions rendered because of a default will take effect immediately.
(d) The Tribunal will notify the Respondent of the issuance of a default decision by mailing a copy of the decision or by providing a copy to the Respondent or the Respondent's representative who appears personally at the Tribunal and requests a copy.
(e) The Respondent may make a motion in writing requesting that a default be vacated pursuant to 48 RCNY § 6-21.
(Amended City Record 6/1/2015, eff. 7/1/2015; amended City Record 7/8/2016, eff. 8/7/2016)
(a) Form of Request. A request for a new hearing after default (motion to vacate a default) is a motion by a Respondent for a new hearing after the Respondent did not appear and a default decision was issued. The Respondent must make the request by application to the Tribunal on a form approved by the Tribunal. The request must be dated, contain a current mailing address for the Respondent; explain how and when the Respondent learned of the violation and be certified to under the penalties of perjury. If the request is made by an attorney or other representative, the request must explain the relationship between the Respondent and the person making the request
(b) A first request for a new hearing after default by a Respondent that is submitted within seventy-five (75) days of the mailing or hand delivery date of the default decision will be granted. A request for a new hearing after default that is submitted by mail must be postmarked within seventy-five (75) days of the mailing or hand delivery date of the default decision.
(c) A request for a new hearing after default that is submitted after seventy-five (75) days of the date of the mailing or hand delivery date of the default decision must be filed within one (1) year of the date of the default decision and be accompanied by a statement setting forth a reasonable excuse for the Respondent's failure to appear and any documents to support the request. The Hearing Officer will determine whether a new hearing will be granted.
(d) Reasons for Failing to Appear. In determining whether a Respondent has shown a reasonable excuse for failing to appear at a hearing, the Hearing Officer will consider:
(1) Whether the summons was properly served pursuant to applicable law.
(2) Whether the Respondent was properly named, including but not limited to:
(i) Whether the Respondent was cited generally as "Owner" or "Agent" on all copies of the summons served on the Respondent; or
(ii) Whether the Respondent was an improper party when the summons was issued, such as:
(A) An individual who was deceased or legally incompetent on the hearing date upon which the Respondent did not appear; or
(B) For a premises-related violation, the Respondent was not the owner, agent, lessee, tenant occupant or person in charge of or in control of the place of occurrence on the date of the offense.
(3) Whether circumstances that could not be reasonably foreseen prevented the Respondent from attending the hearing.
(4) Whether the Respondent had an emergency or condition requiring immediate medical attention.
(5) Whether the matter had been previously adjourned by the Respondent.
(6) Whether the Respondent attempted to attend the hearing with reasonable diligence.
(7) Whether the Respondent's inability to attend the hearing was due to facts that were beyond the Respondent's control.
(8) Whether the Respondent's failure to appear at the hearing can be attributed to the Respondent's failure to maintain current contact information on file with the applicable licensing agency.
(9) Whether the Respondent has previously failed to appear in relation to the same summons.
(10) Any other fact that the Tribunal considers to be relevant to the motion to vacate.
(e) Defaulting twice on the same summons.
(1) If, after a request for a new hearing has been previously granted, a Respondent defaults on the same summons, the second default shall not be eligible for a request for a new hearing. The second default decision is the Tribunal's final determination and is not subject to review or appeal at the Tribunal. Judicial review of the decision may be sought pursuant to Article 78 of the New York Civil Practice Law and Rules.
(2) Notwithstanding the forgoing, upon application, the Chief Administrative Law Judge or his or her designee may grant a new hearing after default upon a showing of exceptional circumstances and in order to avoid injustice.
(f) Except as otherwise stated in 48 RCNY § 5-03, the Chief Administrative Law Judge or his or her designee will have the discretion, in exceptional circumstances and in order to avoid injustice, to consider a Respondent's first request for a new hearing after default made more than one (1) year from the date of the default decision.
(g) If a request for a new hearing after default is granted, the Tribunal will send a notice to the Respondent at the Respondent's address provided on the motion. If the Respondent is deceased or legally incompetent, a notice will be sent to Respondent's representative at the address provided by the representative on the motion. Notice will also be sent to the Petitioner upon request. If the Respondent is unable to appear on the hearing date scheduled after such motion is granted, the Respondent may request that the hearing be rescheduled one (1) final time.
(h) If a request for a new hearing after default is granted and the Respondent has already made a full or partial payment, no request of a refund will be considered until after the hearing is completed and a decision issued.
(i) A decision to grant a request for a new hearing after default is not a final decision on the issues of whether the Respondent was properly served or a proper party on the date of the offense.
(j) A denial of a request for a new hearing after default is the Tribunal's final determination and is not subject to review or appeal at the Tribunal. Judicial review of the denial may be sought pursuant to Article 78 of the New York Civil Practice Law and Rules.
(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 6/9/2022, eff. 7/9/2022)
Subchapter F: Miscellaneous
(a) Grounds for Disqualification. A Hearing Officer will not preside over a hearing under the circumstances set forth in subdivisions (D) and (E) of § 103 of Appendix A of this title. When a Hearing Officer deems himself or herself disqualified to preside in a particular proceeding, the Hearing Officer will withdraw from the proceeding by notice on the record and will notify the Chief Administrative Law Judge or his or her designee of such withdrawal.
(b) Motion to Disqualify. A party may, for good cause shown, request that the Hearing Officer disqualify himself or herself. The Hearing Officer in the proceeding will rule on such motion.
(1) If the Hearing Officer denies the motion, the party may obtain a brief adjournment in order to promptly apply for review by the Chief Administrative Law Judge or his or her designee.
(2) If the Chief Administrative Law Judge or his or her designee determines that the Hearing Officer should be disqualified, the Chief Administrative Law Judge or his or her designee will appoint another Hearing Officer to continue the case. If a Hearing Officer's denial of the motion to disqualify is upheld by the Chief Administrative Law Judge or his or her designee, the party may raise the issue again on appeal.
(Amended City Record 6/1/2015, eff. 7/1/2015)
(a) Requirements. A Representative, other than a family member of a Respondent, who appears on behalf of two (2) or more Respondents before the Tribunal within a calendar year must:
(1) Be at least eighteen (18) years of age;
(2) Register with the Tribunal by completing and submitting a form prescribed by the Tribunal. The Representative must also submit proof of identity acceptable to the Tribunal and any other information that the Tribunal may require. Registration must be renewed every two (2) years;
(3) Notify the Tribunal within ten (10) business days of any change in the information required on the registration form;
(4) Accurately represent the services and qualifications offered. A Representative must not falsely claim to be an attorney or a governmental employee, or falsely imply as much. A Representative who is not an attorney admitted to practice in New York State shall be referred to as "representative" when appearing before the Tribunal;
(5) Exercise due diligence in:
(i) Learning and following Tribunal rules;
(ii) Preparing and submitting documents on behalf of the Respondent, including timely motions and appeals;
(iii) Acquiring basic knowledge of the facts and applicable law charged in the summons;
(iv) Appearing on scheduled hearing dates;
(v) Ensuring that written statements or documents submitted to the Tribunal are what the statements or documents are purported to be and that witnesses making oral statements are who the witnesses purport to be;
(vi) Acting in the Respondent's best interests and according to lawful instructions from the Respondent; and
(vii) Avoiding conflicts that would impair the Representative's ability to act in the Respondent's best interests.
(b) In order to appear on behalf of a Respondent, a registered Representative must:
(1) Provide an authorization form prior to the hearing; and
(2) Retain the authorization form with the signature of the person authorizing the Representative and produce it to the Tribunal upon request. If such signature is executed as a paper signature, it must be an original signature. If such signature is executed as an electronic signature, such signature must be in a format identified as acceptable on a website maintained or controlled by OATH. Failure to produce this form with an original or acceptable electronic signature creates a rebuttable presumption that the registered Representative is not authorized to represent the Respondent through the end of the proceeding.
(c) Discipline. A Representative will be subject to discipline, including but not limited to suspension or bar from appearing before the Tribunal, for failing to follow the provisions of this section, 48 RCNY § 6-25, and any other rules of the Tribunal; and
(d) A Representative must provide valid government-issued photo identification acceptable to the Tribunal when filing notices of appearance for an in-person hearing or when submitting motions in person, including, but not limited to, requests to reschedule and motions to vacate a default.
(Amended City Record 6/1/2015, eff. 7/1/2015; amended City Record 7/8/2016, eff. 8/7/2016; amended City Record 12/30/2020, eff. 1/29/2021; amended City Record 8/11/2022, eff. 9/10/2022)
(a) No Respondent, attorney or registered representative may appear in person on fifteen (15) or more summonses unless:
(1) No later than noon five (5) business days before the scheduled hearing date, the Tribunal receives from the Respondent, attorney, or registered representative a list of all scheduled summonses in the format required by and made available by the Tribunal;
(2) The Respondent, attorney, or registered representative submits only one list of scheduled summonses per hearing date and submits that list electronically, pursuant to the Tribunal's direction, to a recipient designated by the Tribunal, regardless of the county in which the summonses were scheduled to be heard;
(3) Notices of Appearance are submitted in advance of the scheduled hearing, as directed by the Tribunal, to the Tribunal office in the borough where summonses are scheduled to be heard;
(4) The attorney or representative is able, during the hearing, to e-mail to all parties and the Tribunal the evidence the Respondent, attorney, or representative wishes to submit; and
(5) The attorney or registered representative submits an authorization to appear form signed by the Respondent, authorizing the attorney or registered representative to appear at OATH on the Respondent's behalf.
(b) To be considered timely, the Respondent, the Respondent's attorney or representative must:
(1) Appear at the earliest scheduled hearing time indicated on each summons to be heard, or, if applicable, at the earliest scheduled hearing time indicated on each adjournment order or reschedule notice for each summons to be heard, and
(2) Be available and ready to proceed within three (3) hours of the scheduled hearing time indicated on each summons to be heard, or if applicable, within three (3) hours of the scheduled hearing time indicated on each adjournment order or reschedule notice for each summons to be heard.
(c) The failure to make a timely appearance constitutes a default and may subject the Respondent to penalties in accordance with 48 RCNY § 6-20.
(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)
(a) No attorney or registered representative may appear by telephone, videoconference, or other similar remote means unless:
(1) No later than noon three (3) business days before the scheduled hearing date, the Tribunal receives from the attorney or registered representative a list of all scheduled summonses in the format required by and made available by the Tribunal;
(2) The attorney or registered representative submits only one list per hearing date and submits that list electronically, pursuant to the Tribunal's direction, to a recipient designated by the Tribunal, regardless of the county in which the summonses were scheduled;
(3) The attorney or registered representative makes no changes or additions to the list, unless it is to withdraw representation on a matter;
(4) The attorney or registered representative calls in for the first scheduled hearing no later than the earliest scheduled hearing time on each summons to be heard or, if applicable, no later than the earliest scheduled hearing time indicated on each adjournment order or reschedule notice for each summons to be heard; and
(5) The attorney or registered representative submits an authorization to appear form signed by the Respondent, authorizing the attorney or registered representative to appear at OATH on the Respondent's behalf.
(b) No one registered representative or attorney may appear by remote means on a single hearing date for more than twenty-five (25) summonses, unless an exception is granted by the Tribunal prior to the hearing date.
(c) Where a law firm, representative firm, or in-house legal department has more than twenty-five (25) cases scheduled on a hearing date, it must assign an additional registered representative or attorney for each group of up to twenty-five (25) summonses to be heard on that date, unless an exception is granted by the Tribunal prior to the hearing date.
(d) The law firm, representative firm, or in-house legal department must provide the names of the additional registered representatives or attorneys who will appear on each additional group of summonses on that date. Once a registered representative or attorney is assigned to appear on a group of summonses, a different registered representative or attorney may not appear as a substitute, unless an exception is granted by the Tribunal prior to the start of the hearing.
(e) To be considered timely, the Respondent's attorney or representative must:
(1) Appear at the earliest scheduled hearing time on each summons to be heard or, where applicable, at the earliest scheduled hearing time indicated on each adjournment order or reschedule notice for each summons, and
(2) Be available and ready to proceed within three (3) hours of the scheduled hearing time on each summons to be heard or, where applicable, within three (3) hours of the scheduled hearing time indicated on each adjournment order or reschedule notice for each summons to be heard.
The failure to make a timely appearance constitutes a default and may subject the Respondent to penalties in accordance with 48 RCNY § 6-20.
(Added City Record 10/13/2021, eff. 10/13/2021; amended City Record 8/11/2022, eff. 9/10/2022)
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