New York Codes, Rules and Regulations › Title 12 - DEPARTMENT OF LABOR › Chapter VII - Division Of Unemployment Insurance › Subchapter A - Practice And Procedure Before Administrative Law Judges And Appeal Board › Part 461 - Administrative Law Judge Hearing › Section 461.4 - Conduct of hearing

Current through Register Vol. 46, No. 28, July 10, 2024
(a) The
				  administrative law judge shall not be bound by common law or statutory rules of
				  evidence or by technical or formal rules of procedure. The administrative law
				  judge shall conduct the hearing in such order and manner and with such methods
				  of proof and interrogation as the judge deems best suited to ascertain the
				  substantial rights of the parties. The administrative law judge may examine the
				  parties and their witnesses. All parties shall be accorded full opportunity to
				  present such testimony and to introduce documentary or other evidence as may be
				  pertinent. At the commencement of the hearing, the administrative law judge
				  shall identify all persons present and shall outline briefly the issues
				  involved. No administrative law judge shall participate in any hearing in which
				  the judge has an interest. Challenges as to the interest of an administrative
				  law judge shall be decided by a chief administrative law judge or senior
				  administrative law judge.
(b) All
				  testimony shall be under oath or by affirmation and a verbatim record of the
				  proceedings shall be made. In lieu of an appearance, the commissioner may
				  submit written statements, records or other documents prior to or at the
				  hearing subject to the provisions of subdivision (h) of this section. Such
				  statements, records or documents shall not be the basis for the decision of the
				  administrative law judge unless they have been received into the record
				  pursuant to the provisions of subdivision (j) of this section. Upon consent of
				  all parties, evidence supplemental to that introduced at the administrative law
				  judge hearing may be made part of the record.
(c) Any party may appear in person or be
				  represented by an attorney or agent. The administrative law judge may require
				  such appearances as deemed to be necessary. All parties and their attorney or
				  agent shall have the right to call, examine and cross-examine parties and
				  witnesses. The have the right to offer relevant documents, records and other
				  evidence which the administrative law judge may only accept into the record
				  pursuant to the provisions of subdivision (j) of this section. Parties, or
				  their attorney or agent shall have the right to request that subpoenas be
				  issued to compel the appearance of relevant witnesses or the production of
				  relevant documents, records or other evidence. They have the right to request
				  an adjournment of the hearing for good cause shown. Translation services shall
				  be provided to parties in accordance with established legal requirements.
				  During the conduct of the hearing, in accordance with established legal
				  requirements, there shall be a translation of the entire proceeding and of all
				  relevant parts of documents introduced into evidence. At the end of the
				  hearing, each party has the right to make a relevant statement to explain or
				  clarify relevant points which may not have been adequately developed during the
				  hearing.
(d) In the interest of the
				  speedy administration of justice and without prejudice to the substantial
				  rights of any party and for good cause shown and in the discretion of the
				  administrative law judge, any issue in a case or any other issue related
				  thereto may be heard and decided, though not specifically indicated in the
				  notice of hearing. The administrative law judge must set forth on the record
				  the reason for such action and must inform the parties of the intention to
				  consider a new basis for denying or granting benefits, or to consider an issue
				  not specifically indicated in the notice of hearing. The judge must inform the
				  parties of their rights in this regard and must accord them an opportunity to
				  request an adjournment to adequately prepare for such new basis or
				  issue.
(e) Whenever a case is
				  assigned to an administrative law judge the hearing or any adjourned hearing
				  thereon shall continue before the same administrative law judge until a final
				  disposition thereof, unless the case is transferred pursuant to section
				  461.7 
				  of this Part.
(f) The chief
				  administrative law judge, a senior administrative law judge or the
				  administrative law judge may sever a case or may consolidate two or more cases
				  where the interests of justice will be served and where there will be no
				  prejudice to the substantial rights of any party.
(g) The parties, or their duly authorized
				  representatives, may stipulate that a specified case involving an issue
				  affecting in common certain claimants be designated as a test case and that the
				  parties be bound by the administrative law judge's decision in such case,
				  subject to the right of appeal. The stipulation shall be filed with the
				  administrative law judge.
(h)
				  Information from the department records and the case file shall be made
				  available by the commissioner and by the administrative law judge to parties to
				  the hearing or their representatives for the necessary preparation and
				  presentation of the case. All parties shall have the right to call, examine and
				  cross-examine other parties and witnesses with regard to such
				  information.
(i) During the conduct
				  of a hearing, any party may request that the hearing or parts thereof be closed
				  to the public or request that documents or parts thereof be marked as
				  confidential. When a request for closure or confidentiality is made, all
				  present at the hearing shall be heard on the application. Upon a showing of
				  good cause, the administrative law judge may grant such closure or
				  confidentiality. If granted, the record and case file shall be marked to show
				  that there is an order of closure or confidentiality, and that order shall
				  continue in effect unless otherwise determined as a result of judicial
				  review.
(j) In reaching a decision
				  the administrative law judge shall consider and rely on only the evidence
				  introduced at the hearing and those facts and law of which official notice has
				  been taken. Official notice may be taken only in situations in which judicial
				  notice might be taken in a court proceeding and in the same manner. The
				  administrative law judge shall not consider, rely on, or refer to any document
				  which has not been:
(1) identified, with
				  stated opportunity for any party to examine the document and comment, on the
				  record; and
(2) accepted for the
				  record.