Annotation 1-13 - OATH

Office of Administrative Trials and Hearings

Independent and Impartial Administrative Law Court


Chapter I - Subchapter B

Chapter I - Subchapter A
Chapter I - Subchapter B
Chapter I - Subchapter C
Chapter I - Subchapter D
Chapter II - Subchapter A
Chapter II - Subchapter B Reserved
Chapter II - Subchapter C
Chapter II - Subchapter D
Chapter II - Subchapter E

Chapter I - Subchapter A

Chapter I - Subchapter B

Chapter I - Subchapter C

Chapter I - Subchapter D

Chapter II - Subchapter A

Chapter II - Subchapter B Reserved

Chapter II - Subchapter C

Chapter II - Subchapter D

Chapter II - Subchapter E


§1-13 Conduct; Suspension From Practice at OATH.

Applicability

Discovery sanctions are authorized absent an order to compel discovery. However, OATH’s general practice is to defer ruling on discovery sanctions absent the issuance of a pre-trial discovery order. Comm’n on Human Rights ex rel. Ramirez v. 27 Sports Bar and Café, Inc., OATH Index No. 2547/19, mem. dec. (Sept. 29, 2020); Dep’t of Consumer Affairs v. Mirro, OATH Index No. 876/14, mem. dec. (Jan. 31, 2014).

Sanctions may be imposed pursuant to subsection (e) of this section so long as there is a willful violation of OATH’s rules. Dep't of Transportation v. Jones, OATH Index No. 1517/07, mem. dec. (May 10, 2007).

The imposition of sanctions for non-compliance with discovery is not limited to the provisions of 1-33(e). Sanctions may be imposed under subsection (e) of this section for the willful failure to comply with a discovery demand. Dep't of Transportation v. Jones, OATH Index No. 1517/07, mem. dec. (May 10, 2007).

Sanctions range from admonition of counsel to dismissal of the petition. A factor to consider when assessing the sanction was whether counsel's noncompliance was malicious or due to a failure to understand her obligations. Where counsel acts maliciously or in a calculated effort to disadvantage her adversary, a severe sanction is warranted. Dismissal of the petition with prejudice is a draconian sanction, not warranted, where, as here, it was not shown that counsel's non-compliance with discovery demands was done with a malicious intent to gain an advantage. Dep't of Transportation v. Jones, OATH Index No. 1517/07, mem. dec. (May 10, 2007).

Although some of the language in paragraph (a) of this [former] section pertains to trial misconduct, the requirement of “dignified, orderly and decorous” conduct applies at all times and in all proceedings before this tribunal. Matter of Harmacol Realty Co., OATH Index No. 1975/96 (Dec. 12, 1996).

Conduct of Attorneys

SANCTIONS NOT IMPOSED

Counsel’s failure to respond to requests for reciprocal discovery, although indecorous and disrespectful, was not willful so ALJ declined to impose sanctions. Counsel was warned that similar conduct in the future could result in a sanction. Dep’t of Correction v. Bolanos, OATH Index No. 853/15 (Mar. 19, 2015).

Respondent requested sanctions, arguing that petitioner violated the New York Rules of Professional Conduct by filing a meritless claim. ALJ declined to impose sanctions because there was a basis in law for petitioner’s claim. Office of the City Clerk v. Metropolitan New York Coordinating Council on Jewish Poverty, OATH Index No. 1940/12, mem. dec. (Aug. 30, 2012).

SANCTIONS IMPOSED

Denial of counsel’s adjournment request was appropriate and the least severe sanction that could be imposed based on counsel’s willful and contumacious lack of respect for this tribunal, demonstrated by his repeated failure to appear, last-minute adjournment requests, failure to follow directive to appear at a certain time, and failure to file an affirmation of actual engagement. Dep’t of Correction v. Ramos, OATH Index No. 1283/21, mem. dec. (Oct. 6, 2021).

Counsel formally admonished for failure to comply with OATH Rule 1-43 regarding issuance of subpoenas, failure to familiarize himself with this tribunal’s rules as required by OATH Rule 1-13(c), and failure to comply with ALJ’s denial of petitioner’s request for issuance of a subpoena. Transit Auth. v. M. K., OATH Index No. 1355/17 (Feb. 14, 2018), aff’d, NYC Civ. Serv. Comm’n Case No. 2018-0275 (Oct. 2, 2018).

Counsel formally admonished for failing to reply to discovery requests or to submit information required by ALJ’s express orders. Harsher sanctions, such as a fine or award of costs, were not warranted because counsel ultimately provided discovery before trial and most of the prejudice caused by the missed deadlines was the delay in scheduling the trial, which affected both parties equally. Matter of Stone, OATH Index No. 1945/14, mem. dec. (June 8, 2015).

Where petitioner’s counsel disclosed confidential materials to counsel for inmate before inmate testified at respondents’ disciplinary hearing, ALJ granted respondents’ motion to strike the inmate’s testimony from the record as a sanction to rid the proceeding of any taint, even absent direct evidence that the confidential material was shared with the inmate. Motion for a mistrial denied. Dep’t of Correction v. Behari, OATH Index Nos. 781/14, 782/14, 783/14, 784/14, 785/14 & 786/14 (Sept. 25, 2014), aff’d, NYC Civ. Serv. Comm’n Case No. 2015-0162 (Nov. 10, 2015).

The Chief Administrative Law Judge suspended an attorney indefinitely from practicing before OATH for willfully and persistently violating section 1-13 of the rules of practice during a custodian's disciplinary hearing. The attorney, who was also sanctioned $2,500 by administrative law judge, engaged in a pattern of misconduct during the 14-day hearing which included yelling and screaming; interrupting and talking over opposing counsel, witnesses, and the administrative law judge; interfering with opposing counsel's questioning of witnesses; feeding answers to witnesses; making insulting and rude remarks to persons in the hearing room; abusing the lawful subpoena process; disrespecting the tribunal by crumpling up and throwing into the garbage in the hearing room, during the proceedings, a receipt for monetary sanctions and a lawful, signed subpoena; and audibly using profanity. Dep't of Education v. Brust, OATH Index. No. 2280/07, mem. dec. (Sept. 25, 2009).

Petitioner's counsel is fined $1,000 for willful disobedience of tribunal's orders regarding the filing of proper harassment pleadings, production of trial exhibits and the setting of a trial date. Dawe v. 20 Beaver Street, LLC, OATH Index Nos. 237/06 and 335/06, mem. dec. (Oct. 20, 2006).

Admonition is imposed as the sanction for counsel's willful, but not malicious, failure to comply with discovery demands. Dep't of Transportation v. Jones, OATH Index No. 1517/07, mem. dec. (May 10, 2007).

Attorney is sanctioned for issuing his own subpoenas, not on notice to this tribunal or his adversary, in violation of section 1-43. Matter of Live Centre Tenants Assoc., OATH Index No. 834/05, mem. dec. (Mar. 2, 2006).

Where counsel refused to comply with a directive of this tribunal to produce an available witness, and otherwise engaged in disruptive and disrespectful conduct, the testimony of the witness was precluded pursuant to subsection (e) of section 1-33. Dep't of Sanitation v. Hernandez, OATH Index No. 124/03, mem. dec. (Nov. 14, 2002).

Where counsel misrepresented legal precedent by inserting favorable language to his position in his brief, counsel was admonished that he would be subject to the penalties provided under this section if it occurred again. Taxi and Limousine Commission v. Ouali, OATH Index No. 1855/00, mem. dec. (Feb. 16, 2000).

The administrative law judge cautioned attorney for failing to disclose prior adverse holdings and for repeatedly asserting issues that have been previously adjudicated. In post-trial submissions, attorney raised several defenses to the padlock law but did not disclose that a prior decision by this tribunal had considered and rejected these same legal defenses. Dep't of Buildings v. Owners, Occupants & Mortgagees of 2377 Grand Avenue, Bronx, OATH Index No. 1061/98 (June 12, 1998).

After an adjournment request was denied on the third and final day of trial, the administrative law judge instructed the parties to proceed. Counsel and respondent elected to leave the hearing, claiming they were unprepared to go forward. Pursuant to this section, the administrative law judge issued a warning to counsel for violating OATH's rules and administrative law judge's direction, as well as the applicable provision of the disciplinary rules, DR 2-110 (A)(1). Dep't of Sanitation v. Garcia, OATH Index No. 1140/98 (May 1, 1998).

For failure without excuse to comply with the administrative law judge's order at the commencement of the case to submit a notice of appearance by a certain date, and failure to comply with section 1-11(c) of these rules by orally arguing a motion for an adjournment of a settlement conference without having submitted a notice of appearance, counsel who had not previously been formally sanctioned was formally admonished pursuant to paragraph (a) of this [former] section. Matter of Harmacol Realty Co., OATH Index No. 1975/96 (Dec. 12, 1996).

Where counsel failed properly to move to withdraw as counsel, disregarded instructions of the administrative law judge to appear for trial as scheduled, and wrote letters to the administrative law judge that were manifestly inappropriate as a form of address by counsel to a judge, he was found to have violated paragraph (a) of this [former] section, was formally reprimanded, and was cautioned that future violations might result in imposition of the more severe sanctions provided by paragraph (b) of this [former] section. Dep't of Correction v. Lewis, OATH Index No. 1316/95, mem. dec. (May 31, 1995).