19 CRR-NY 900-8.7NY-CRR
19 CRR-NY 900-8.7
19 CRR-NY 900-8.7
900-8.7 Conduct of the adjudicatory hearing.
(a) Order of events.
The ALJ has discretion to determine and adjust the order of events and presentation of evidence, and to establish procedures to promote the conduct of a fair and efficient hearing. In general, the order of events at a hearing shall be as follows:
(1) Formal opening. The ALJ shall convene the hearing by opening the record, identifying the applications involved, and making appropriate procedural announcements.
(2) Noting appearances. The ALJ shall call the name of each person who has been granted status as a party.
(3) Opening statements. Prior to the commencement of the adjudicatory sessions, each party may, at its option, offer a brief opening statement of position on the application.
(4) Admission of evidence. The applicant shall present its direct case first and shall start by identifying all documents which constitute the application, any supplements to the application, and all supporting documents which are relevant to the issues to be adjudicated. A panel of witnesses may be used for presenting testimony or for cross-examination at the ALJ's discretion. Cross-examination shall be conducted by parties in a sequence to be established by the ALJ, which normally will be the sequence in which the parties will present their direct cases. The evidence shall be confined to that which is relevant to issues identified in the ALJ's written issues determination.
(5) Close of record. Closing statements of position will be dealt with in the same manner as opening statements. At the concluding session of the hearing, the ALJ shall determine whether to allow the submission of written post-hearing briefs. The hearing record shall be officially closed upon the receipt of the stenographic record by the ALJ, the receipt of additional technical data or other material agreed at the hearing to be made available after the hearing, or the submission of briefs and reply briefs, conclusions of law, memoranda, and exceptions, if any, by the various parties, whichever occurs last. The ALJ shall notify the applicant by certified mail, and all other parties by regular mail, immediately upon official closing of the hearing record.
(6) Where the ALJ permits the filing of briefs, the ALJ shall also determine page limits for said briefs and whether replies will be permitted and the schedule for filing. Simultaneous filing shall normally be required. A party shall give specific reference to the portions of the record, whether transcript or otherwise, relied upon in support of the respective statements of fact made throughout the brief. Briefs shall be considered only as argument and shall not refer to or contain any evidentiary material outside of the administrative record.
(b) The ALJ.
(1) In proceedings pursuant to this Part, the ALJ has power to:
(i) rule upon all motions and requests, including those that decide the ultimate merits of the case;
(ii) set the time and place of the hearing, recesses and adjournments;
(iii) administer oaths and affirmations;
(iv) issue subpoenas upon request of a party not represented by counsel admitted to practice in New York State. Subpoenas issued by the ALJ are regulated by the Civil Practice Law and Rules;
(v) upon the request of a party, quash and modify subpoenas except that in the case of a non-party witness the ALJ may quash or modify a subpoena regardless of whether or not a party has so requested;
(vi) summon and examine witnesses;
(vii) establish rules for and direct disclosure at the request of any party or upon the ALJ's own motion pursuant to the procedures set out in section 900-8.6 of this Subpart;
(viii) admit or exclude evidence including the exclusion of evidence on grounds of privilege or confidentiality;
(ix) hear and determine arguments on fact or law;
(x) preclude irrelevant, immaterial or unduly repetitious, tangential or speculative evidence, argument, examination or cross-examination;
(xi) direct the consolidation of parties with similar viewpoints and input;
(xii) limit the number of witnesses;
(xiii) utilize a panel of witnesses for purposes of direct testimony or cross-examination;
(xiv) allow oral argument, so long as it is recorded;
(xv) take any measures necessary for maintaining order and the efficient conduct of the proceeding;
(xvi) issue orders limiting the length of cross-examination, the form, length and content of motions and briefs and similar matters;
(xvii) order a site visit, on notice to all parties; and
(xviii) exercise any other authority available to ALJs under this Part or to presiding officers under SAPA article 3.
(2) Impartiality of the ALJ and motions for recusal.
(i) The ALJ shall conduct the proceeding in a fair and impartial manner.
(ii) An ALJ shall not be assigned to any proceeding in which the ALJ has a personal interest.
(iii) Any party may file with the ALJ a motion in conformance with section 900-8.5(c) of this Subpart, together with supporting affidavits, requesting that the ALJ be recused on the basis of personal bias or other good cause. Such motions shall be determined as part of the record of the proceeding.
(3) The designation of an ALJ as the executive director’s representative shall be in writing and filed in the Office of Hearings.
(c) Appearances.
(1) A party may appear in person or be represented by an attorney licensed in New York State or any other jurisdiction, or by a non-attorney chosen by the party. Any representative of a party who is other than an attorney licensed to practice in New York State shall disclose his or her qualifications to the party. All persons appearing before the ALJ shall conform to the standards of conduct required of attorneys appearing before the courts of the State of New York. Any person signing any papers submitted in or entering an appearance in any proceeding shall be considered to have agreed to conform to those standards. A failure to conform to those standards shall be grounds for exclusion from that and any later proceeding. Nothing in this paragraph authorizes a non-lawyer to engage in the practice of law.
(2) Any person appearing on behalf of a party in a representative capacity may be required by the ALJ to show and state on the record the person’s authority to act in such capacity and to file a notice of appearance with the ALJ.
(3) If there is a change or withdrawal of a party’s attorney or authorized representative, the party shall provide notice of the change or withdrawal to the ALJ and the attorneys or authorized representatives of all other parties, or, if a party appears without an attorney or authorized representative, to the party within 10 days of the change or withdrawal.
(d) Appeals of ALJ rulings.
(1) Any ALJ ruling may be appealed to the executive director after the completion of all testimony as part of a party's final brief or by notice of appeal and appeal where no final brief is provided for. Where no final brief is provided for, the appellant shall file the notice of appeal and appeal within five days after service of the notice of the official closing of the hearing record.
(i) An ALJ ruling pursuant to section 900-8.3(c)(5) of this Subpart that finally resolves all issues in a proceeding may be appealed to the executive director by notice of appeal and appeal. The appellant shall file the notice of appeal and appeal within five days of the ALJ’s ruling.
(ii) The notice of appeal and appeal shall be served on all parties and filed with the executive director and the ALJ. All parties have five days after an appeal is served to serve and file a response to the appeal. Only the executive director shall determine whether further responsive pleadings after the responses will be allowed. The parties shall file one original and three copies of any papers filed pursuant to this paragraph.
(2) During the course of the proceeding, in conformance with section 900-8.5(e) of this Subpart, the following rulings may be appealed to the executive director on an expedited basis:
(i) any ruling in which the ALJ has denied a motion for recusal; and
(ii) any other ruling of the ALJ that does not finally resolve all issues in the proceeding, by seeking permission to file an expedited appeal upon a demonstration that the failure to decide such an appeal would be unduly prejudicial to one of the parties or would result in significant inefficiency in the hearing process. In all such cases, the executive director's determination to entertain the appeal on an expedited basis is discretionary.
(3) A motion for permission to file an expedited appeal shall demonstrate that the ruling in question falls within the criteria set forth in subparagraph (2)(ii) of this subdivision.
(4) The executive director may review any ruling of the ALJ on an expedited basis upon the executive director's determination or upon a determination by the ALJ that the ruling should be appealed.
(5) Whenever the executive director grants permission to file an expedited appeal, the parties shall be notified. The appellant shall be provided the opportunity to file a brief on appeal and the other parties shall be provided with the opportunity to file a response to the appeal.
(6) Failure to file an expedited appeal or the denial of permission to file an expedited appeal shall not preclude an appeal from the ruling to the executive director after the hearing.
(7) The hearing shall not be adjourned while an appeal or motion for permission to appeal is pending except by permission of the ALJ or the executive director.
19 CRR-NY 900-8.7
Current through October 31, 2021
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IMPORTANT NOTE REGARDING CONTENT CURRENCY: The "Current through" date indicated immediately above is the date of the most recently produced official NYCRR supplement covering this rule section. For later updates to this section, if any, please: consult editions of the NYS Register published after this date; or contact the NYS Department of State Division of Administrative Rules at [email protected]. See Help for additional information on the currency of this unofficial version of NYS Rules.