Subchapter E - Defaults - OATH

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Hearings Division Rules of Practice

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Registered Representatives


Subchapter E - Defaults

§6-20 Defaults

A Respondent who fails to appear or to make a request to reschedule as required by these rules will be deemed to have defaulted.

Upon such default, without further notice to the Respondent and without a hearing being held, all facts alleged in the summons will be deemed admitted, the Respondent will be found in violation and the penalties authorized by applicable laws, rules and regulations will be applied.

Decisions rendered because of a default will take effect immediately.

The Tribunal will notify the Respondent of the issuance of a default decision by mailing a copy of the decision or by providing a copy to the Respondent or the Respondent's representative who appears personally at the Tribunal and requests a copy.

The Respondent may make a motion in writing requesting that a default be vacated pursuant to §6-21 of this chapter.

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§6-21 Request for a New Hearing after a Failure to Appear (Motion to Vacate a Default)

Form of Request. A request for a new hearing after default (motion to vacate a default) is a motion by a Respondent for a new hearing after the Respondent did not appear and a default decision was issued. The Respondent must make the request by application to the Tribunal on a form approved by the Tribunal. The request must be dated, contain a current mailing address for the Respondent; explain how and when the Respondent learned of the violation and be certified to under the penalties of perjury. If the request is made by an attorney or other representative, the request must explain the relationship between the Respondent and the person making the request.

A first request for a new hearing after default by a Respondent that is submitted within seventy-five (75) days of the mailing or hand delivery date of the default decision will be granted. A request for a new hearing after default that is submitted by mail must be postmarked within seventy-five (75) days of the mailing or hand delivery date of the default decision.

A request for a new hearing after default that is submitted after seventy-five (75) days of the date of the mailing or hand delivery date of the default decision must be filed within one (1) year of the date of the default decision and be accompanied by a statement setting forth a reasonable excuse for the Respondent's failure to appear and any documents to support the request. The Hearing Officer will determine whether a new hearing will be granted.

Reasons for Failing to Appear. In determining whether a Respondent has shown a reasonable excuse for failing to appear at a hearing, the Hearing Officer will consider:

Whether the summons was properly served pursuant to applicable law.

Whether the Respondent was properly named, including but not limited to:

Whether the Respondent was cited generally as "Owner" or "Agent" on all copies of the summons served on the Respondent; or

Whether the Respondent was an improper party when the summons was issued, such as:

An individual who was deceased or legally incompetent on the hearing date upon which the Respondent did not appear; or

For a premises-related violation, the Respondent was not the owner, agent, lessee, tenant occupant or person in charge of or in control of the place of occurrence on the date of the offense.

A decision to grant a motion to vacate a default is not a final decision on the issues of whether the Respondent was properly served or a proper party on the date of the offense.

Whether circumstances that could not be reasonably foreseen prevented the Respondent from attending the hearing.

Whether the Respondent had an emergency or condition requiring immediate medical attention.

Whether the matter had been previously adjourned by the Respondent.

Whether the Respondent attempted to attend the hearing with reasonable diligence.

Whether the Respondent's inability to attend the hearing was due to facts that were beyond the Respondent's control.

Whether the Respondent's failure to appear at the hearing can be attributed to the Respondent's failure to maintain current contact information on file with the applicable licensing agency.

Whether the Respondent has previously failed to appear in relation to the same summons.

Any other fact that the Tribunal considers to be relevant to the motion to vacate.

Defaulting twice on the same summons.

If, after a request for a new hearing has been previously granted, a Respondent defaults on the same summons, the second default shall not be eligible for a request for a new hearing. The second default decision is the Tribunal’s final determination and is not subject to review or appeal at the Tribunal. Judicial review of the decision may be sought pursuant to Article 78 of the New York Civil Practice Law and Rules.

Notwithstanding the forgoing, upon application, the Chief Administrative Law Judge or his or her designee may grant a new hearing after default upon a showing of exceptional circumstances and in order to avoid injustice.

Except as otherwise stated in §5-03 of this Title, the Chief Administrative Law Judge or his or her designee will have the discretion, in exceptional circumstances and in order to avoid injustice, to consider a Respondent’s first request for a new hearing after default made more than one (1) year from the date of the default decision.

If a request for a new hearing after default is granted, the Tribunal will send a notice to the Respondent at the Respondent's address provided on the motion. If the Respondent is deceased or legally incompetent, a notice will be sent to Respondent's representative at the address provided by the representative on the motion. Notice will also be sent to the Petitioner upon request. If the Respondent is unable to appear on the hearing date scheduled after such motion is granted, the Respondent may request that the hearing be rescheduled one (1) final time.

If a request for a new hearing after default is granted and the Respondent has already made a full or partial payment, no request of a refund will be considered until after the hearing is completed and a decision issued.

A decision to grant a request for a new hearing after default is not a final decision on the issues of whether the Respondent was properly served or a proper party on the date of the offense.

A denial of a request for a new hearing after default is the Tribunal's final determination and is not subject to review or appeal at the Tribunal. Judicial review of the denial may be sought pursuant to Article 78 of the New York Civil Practice Law and Rules.

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