New York Codes, Rules and Regulations › Title 9 - EXECUTIVE DEPARTMENT › Subtitle S - Division of Housing and Community Renewal › Chapter VII - Emergency Housing Rent Control › Subchapter A - Administration › Part 2051 - Rules Of Practice For The Office Of Rent Administration-adjudicatory Proceedings › Section 2051.4 - Miscellaneous procedural matters

Current through Register Vol. 46, No. 28, July 10, 2024
(a)
					 Subpoenas and subpoenas duces tecum.
(1) Who
					 may issue. The commissioner, the commissioner's designee, an administrative law
					 judge, DHCR's counsel, a deputy counsel or an assistant deputy counsel may
					 issue subpoenas and subpoenas duces tecum whenever necessary to compel the
					 attendance of witnesses or to require the production for examination of any
					 books, payrolls, rent rolls, ledgers, correspondence, documents, papers or any
					 other evidence relating to any matter under investigation or in question before
					 the DHCR.
(2) When and where
					 returnable. Subpoenas and subpoenas duces tecum issued by the designated
					 officers and employees of the DHCR may be made returnable at any stage of any
					 investigation or proceeding pending before the division. Documents, books and
					 records required for a public hearing before an administrative law judge may be
					 subpoenaed and made returnable prior to such hearing at such time and place
					 stated in the subpoena by the issuing officer, or made returnable at the time
					 and place designated for hearing.
(3) Application for a subpoena.
(i) Subpoenas and subpoenas duces tecum may
					 be issued by the designated officers and employees of the DHCR upon the
					 application of a party, his representative or a party's attorney. Issuance of a
					 subpoena duces tecum at the instance of a party shall depend upon a showing of
					 necessity.
(ii) Application for a
					 subpoena may be made at any stage in the proceeding and should be made in
					 writing. The administrative law judge may, at his discretion:
(a) cause the subpoena requested to be
					 issued;
(b) by hearing notice or
					 amended hearing notice direct the production of all or some of the witnesses or
					 material sought and within the control of a party to the proceeding at the
					 hearing; or
(c) advise the attorney
					 for a party who has sought the issuance of the subpoena to proceed in
					 accordance with section
					 2302 of the Civil Practice Law and Rules
					 (CPLR). Said advisement shall be in writing and on notice to all other parties
					 or placed on the record.
(iii) Where a party to the proceeding fails
					 to produce evidence and/or witnesses found to be within its control, and which
					 were directed by hearing notice or by the administrative law judge to be
					 produced, the administrative law judge may then cause to be issued and served a
					 subpoena for the production thereof, or the administrative law judge may draw a
					 negative inference from the failure to produce.
(4) Subpoenas by attorneys.
(i) An attorney appearing for a party may
					 issue and cause to be served subpoenas or subpoenas duces tecum returnable at a
					 hearing before an administrative law judge in accordance with section
					 2302 of the Civil Practice Law and
					 Rules.
(ii) Motions to enforce,
					 quash or modify a subpoena issued pursuant to section 2302 of the CPLR shall be
					 made in a court of competent jurisdiction. However, upon an offer of proof, the
					 administrative law judge may cause to be issued a subpoena or direct a party to
					 produce all or any part of the requested matter. Upon failure to comply
					 therewith in whole or in part, the administrative law judge may cause
					 enforcement actions to be undertaken in whole or in part to obtain compliance,
					 and/or the administrative law judge may draw a negative inference from the
					 failure to comply.
(iii) Where the
					 attorney for a party issues a subpoena and thereafter applies for judicial
					 enforcement thereof, the administrative law judge may, at his discretion,
					 continue the hearing to take testimony from other witnesses. At his discretion,
					 or where the issued subpoena relates to a final witness, the administrative law
					 judge may grant an adjournment but shall require that, within a period not in
					 excess of 10 days, the party issuing the subpoena present proof to the
					 administrative law judge that it has instituted a proceeding to compel
					 compliance. The administrative law judge may thereafter require proof of
					 diligent pursuit of the matter and shall continue the hearing within 30 days of
					 notification of resolution of the compliance proceeding.
(5) Depository officer. An officer or
					 employee of the DHCR may be designated as a depository officer, who shall
					 receive and hold documents, books and records subpoenaed and/or produced at
					 said hearing and required for use during the period between the commencement of
					 a public hearing and any adjourned date thereof. Such records shall be made
					 available for inspection and copying during the ordinary business hours of the
					 DHCR. If produced at hearing, the administrative law judge assigned to the
					 matter shall be the depository officer.
(6) Public bodies. Absent a specific statute
					 or rule to the contrary, a subpoena duces tecum directed to another public body
					 or agency does not require approval of the court.
(7) Witness or mileage fees. Where a subpoena
					 or subpoena duces tecum is issued at the instance of a party or by an attorney,
					 the cost of service and witness and mileage fees and the burden of service
					 shall be borne by such party or attorney. Such witness and mileage fees shall
					 be the same as are paid at trials in the New York State Supreme
					 Court.