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Subchapter A: General Rules
Editor's note: Pursuant to City Record 7/8/2016, effective 8/7/2016, the Office of Administrative Trials and Hearings repealed and reenacted this subchapter.
Definitions in 48 RCNY § 6-01 apply to terms used in this chapter. In addition, as used in this chapter:
"Board" means the Environmental Control Board of the City of New York.
"Executive Director" means the executive director of the Board.
(Added City Record 7/8/2016, eff. 8/7/2016)
This chapter applies to the adjudications of summonses conducted by the Tribunal as authorized by the Board and to other Board proceedings 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, and special hearings conducted by the Board pursuant to Title 24 of the New York City Administrative Code.
(Added City Record 7/8/2016, eff. 8/7/2016)
Whenever a party claims that a summons was previously adjudicated, the hearing officer must allow both parties to present all relevant evidence on all the issues in the case, including the claim of prior adjudication. If a party has raised a claim of prior adjudication, the hearing officer must not decide such claim, but must preserve the claim for the purposes of subsequent appeal to the Appeals Unit, a panel of Board members, or the Board pursuant to 48 RCNY § 3-15. If, on appeal, a party properly raises and preserves a claim of prior adjudication, the Appeals Unit will review the records of the first and any subsequent hearings in order to assist the panel or Board in determining the claim of prior adjudication. In deciding the claim, the panel or the Board will consider the interests of justice and public safety.
(Added City Record 7/8/2016, eff. 8/7/2016)
(a) The Board will establish panels from among its members to review recommended decisions prepared by the Appeals Unit, pursuant to 48 RCNY § 6-19(e), and to issue appeals decisions. A panel may refer a case to the Board for review if the panel is unable to reach a decision. Such case will be considered by the Board and the Board will issue an appeals decision. Unless a party files a request pursuant to Subdivision (b) of this section, the appeals decision of the panel or the Board will be deemed to have been issued by, and become the final determination of the Board, which is also a final determination of the Tribunal. Judicial review of such determination may be sought pursuant to article 78 of the New York Civil Practice Law and Rules (CPLR).
(b) Superseding appeals decisions. Within 10 days of the mailing of the Board's appeals decision, a party may apply to the Board for a superseding appeals decision to correct ministerial errors or errors due to mistake of fact or law. The request for a superseding appeals decision must be served upon the non-requesting party. A decision denying a request for a superseding appeal incorporates by reference the initial appeals decision. A decision granting a request for a superseding appeal vacates the initial appeals decision. This superseding appeals decision will become the final determination of the Board, which is also the final determination of the Tribunal. Judicial review of such determination may be sought pursuant to article 78 of the CPLR.
(Added City Record 7/8/2016, eff. 8/7/2016; amended City Record 3/7/2019, eff. 4/6/2019)
(a) If the Board has not issued an appeals decision within 180 days from the filing of the appeal, or if the Board has not issued a superseding appeals decision within 180 days from the request for superseding appeal, the Respondent may at any time file a petition seeking judicial review of the Hearing Officer's recommended decision pursuant to article 78 of the New York Civil Practice Law and Rules (CPLR). Such Respondent may rely on the recommended decision of the Hearing Officer as the final determination of the Board, provided that the following three conditions are met:
(1) at least forty-five days before the filing of such petition, the Respondent files with the Board written notice of the Respondent's intention to file the Article 78 petition;
(2) the Respondent serves and files the article 78 petition on the Board pursuant to the CPLR; and
(3) the Board has not issued an appeals decision or, if applicable, a superseding appeals decision at the time of filing the petition.
(b) The Board may issue a final determination after a Respondent files with the Board written notice of intention to file a petition for judicial review under Subdivision (a) and before the Respondent has filed the petition.
(Added City Record 7/8/2016, eff. 8/7/2016; amended City Record 3/7/2019, eff. 4/6/2019)
Where the Board issues a default decision, in accordance with 48 RCNY § 6-20, permitting Respondent to admit the charge and pay by mail, Respondent may enter a late admission and payment by mail within thirty days of the mailing date of the default decision. OATH may impose a fee of $30 for the processing of such late admission.
(Added City Record 7/8/2016, eff. 8/7/2016)
(a) At any time before the Hearing Officer issues a recommended decision, the Petitioner may offer the Respondent a settlement of the summons by stipulation in lieu of further hearing. The stipulation must contain an admission of the violation, the further facts stipulated to, if any, the amount of the penalty to be imposed, and the compliance ordered, if any.
(b) If entered into by Respondent and filed with the Tribunal prior to the first scheduled hearing date, the stipulation will be reviewed by the Executive Director or his or her designee. The Tribunal as authorized by the Board will, after receiving such stipulation, issue a final decision incorporating the terms of the stipulation. If the stipulation is not acceptable to the Tribunal, the matter will be rescheduled for further hearing.
(c) If entered into during the course of a hearing and approved by the Hearing Officer, the stipulation will be incorporated into the Hearing Officer's recommended decision.
(d) Decisions based upon stipulations may not be appealed.
(Added City Record 7/8/2016, eff. 8/7/2016)
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