Subchapter F - Miscellaneous - OATH

Office of Administrative Trials and Hearings

Independent and Impartial Administrative Law Court


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Hearings Division Rules of Practice

Hearings Division Forms

Registered Representatives


Subchapter F - Miscellaneous

§6-22 Disqualification of Hearing Officers
§6-23 Registered Representatives
§6-24 Pre-hearing Notification of Schedule for Attorneys and Registered Representatives for In Person Hearings
§6-24a Pre-hearing Notification of Schedule for Attorneys and Registered Representatives for Hearings by Telephone, Video-Conferencing or Other Similar Remote Means
§6-25 Misconduct
§6-26 Request for a New Hearing Due to Unauthorized Representation
§6-27 Defense Based on Sovereign or Diplomatic Immunity
§6-28 Application to File a Post-Hearing Agreement

§6-22 Disqualification of Hearing Officers

Grounds for Disqualification. A Hearing Officer will not preside over a hearing under the circumstances set forth in subdivisions (D) and (E) of §103 of Appendix A of this title. When a Hearing Officer deems himself or herself disqualified to preside in a particular proceeding, the Hearing Officer will withdraw from the proceeding by notice on the record and will notify the Chief Administrative Law Judge or his or her designee of such withdrawal.

Motion to Disqualify. A party may, for good cause shown, request that the Hearing Officer disqualify himself or herself. The Hearing Officer in the proceeding will rule on such motion.

If the Hearing Officer denies the motion, the party may obtain a brief adjournment in order to promptly apply for review by the Chief Administrative Law Judge or his or her designee.

If the Chief Administrative Law Judge or his or her designee determines that the Hearing Officer should be disqualified, the Chief Administrative Law Judge or his or her designee will appoint another Hearing Officer to continue the case. If a Hearing Officer's denial of the motion to disqualify is upheld by the Chief Administrative Law Judge or his or her designee, the party may raise the issue again on appeal.

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§6-23 Registered Representatives

Requirements. A Representative, other than a family member of a Respondent, who appears on behalf of two (2) or more Respondents before the Tribunal within a calendar year must:

Be at least eighteen (18) years of age;

Register with the Tribunal by completing and submitting a form prescribed by the Tribunal. The Representative must also submit proof of identity acceptable to the Tribunal and any other information that the Tribunal may require. Registration must be renewed every two (2) years;

Notify the Tribunal within ten (10) business days of any change in the information required on the registration form;

Accurately represent the services and qualifications offered. A Representative must not falsely claim to be an attorney or a governmental employee, or falsely imply as much. A Representative who is not an attorney admitted to practice in New York State shall be referred to as “representative” when appearing before the Tribunal;

Exercise due diligence in:

Learning and following Tribunal rules;

Preparing and submitting documents on behalf of the Respondent, including timely motions and appeals;

Acquiring basic knowledge of the facts and applicable law charged in the summons;

Appearing on scheduled hearing dates;

Ensuring that written statements or documents submitted to the Tribunal are what the statements or documents are purported to be and that witnesses making oral statements are who the witnesses purport to be;

Acting in the Respondent’s best interests and according to lawful instructions from the Respondent; and

Avoiding conflicts that would impair the Representative’s ability to act in the Respondent’s best interests.

In order to appear on behalf of a Respondent, a registered Representative must:

Provide an authorization form prior to the hearing; and

Retain the authorization form with the signature of the person authorizing the Representative and produce it to the Tribunal upon request. If such signature is executed as a paper signature, it must be an original signature. If such signature is executed as an electronic signature, such signature must be in a format identified as acceptable on a website maintained or controlled by OATH. Failure to produce this form with an original or acceptable electroinc signature creates a rebuttable presumption that the registered Representative is not authorized to represent the Respondent through the end of the proceeding.

Discipline. A Representative will be subject to discipline, including but not limited to suspension or bar from appearing before the Tribunal, for failing to follow the provisions of this section, § 6-25, and any other rules of the Tribunal; and

A Representative must provide valid government-issued photo identification acceptable to the Tribunal when filing notices of appearance for an in-person hearing or when submitting motions in person, including, but not limited to, requests to reschedule and motions to vacate a default.

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§6-24 Pre-hearing Notification of Schedule for In-Person Hearings on 15 or More Summonses

No Respondent, attorney or registered representative may appear in person on fifteen (15) or more summonses on a given hearing date unless:

No later than noon five (5) business days before the scheduled hearing date, the Tribunal receives from the Respondent, attorney, or registered representative a list of all scheduled summonses in the format required by and made available by the Tribunal;

The Respondent, attorney, or registered representative submits only one list of scheduled summonses per hearing date and submits that list electronically, pursuant to the Tribunal’s direction, to a recipient designated by the Tribunal, regardless of the county in which the summonses were scheduled to be heard;

Notices of Appearance are submitted in advance of the scheduled hearing, as directed by the Tribunal, to the Tribunal office in the borough where summonses are scheduled to be heard;

The attorney or representative is able, during the hearing, to e-mail to all parties and the Tribunal the evidence the Respondent, attorney, or representative wishes to submit; and

The attorney or registered representative submits an authorization to appear form signed by the Respondent, authorizing the attorney or registered representative to appear at OATH on the Respondent’s behalf.

To be considered timely, the Respondent, the Respondent’s attorney or representative must:

Appear at the earliest scheduled hearing time indicated on each summons to be heard, or, if applicable, at the earliest scheduled hearing time indicated on each adjournment order or reschedule notice for each summons to be heard, and

Be available and ready to proceed within three (3) hours of the scheduled hearing time indicated on each summons to be heard, or if applicable, within three (3) hours of the scheduled hearing time indicated on each adjournment order or reschedule notice for each summons to be heard.

The failure to make a timely appearance constitutes a default and may subject the Respondent to penalties in accordance with § 6-20.

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§6-24a Pre-hearing Notification of Schedule for Attorneys and Registered Representatives for Hearings by Telephone, Videoconference, or Other Similar Remote Means

No attorney or registered representative may appear by telephone, videoconference, or other similar remote means unless:

No later than noon three (3) business days before the scheduled hearing date, the Tribunal receives from the attorney or registered representative a list of all scheduled summonses in the format required by and made available by the Tribunal;

The attorney or registered representative submits only one list per hearing date and submits that list electronically pursuant to the Tribunal’s direction to a recipient designated by the Tribunal, regardless of the county in which the summonses were scheduled;

The attorney or registered representative makes no changes or additions to the list, unless it is to withdraw their representation on a matter;

The attorney or registered representative calls in for the first scheduled hearing no later than the earliest scheduled hearing time on each summons to be heard or, if applicable, no later than the earliest scheduled hearing time indicated on each adjournment order or reschedule notice for each summons to be heard; and

The attorney or registered representative submits an authorization to appear form signed by the Respondent, authorizing the attorney or registered representative to appear at OATH on the Respondent’s behalf.

No one registered representative or attorney may appear by remote means on a single hearing date for more than twenty-five (25) summonses, unless an exception is granted by the Tribunal prior to the hearing date.

Where a law firm, representative firm, or in-house legal department has more than twenty-five (25) cases scheduled on a hearing date, it must assign an additional registered representative or attorney for each group of up to twenty-five (25) summonses to be heard on that date, unless an exception is granted by the Tribunal prior to the hearing date.

The law firm, representative firm, or in-house legal department must provide the names of the additional registered representatives or attorneys who will appear on each additional group of summonses on that date. Once a registered representative or attorney is assigned to appear on a group of summonses, a different registered representative or attorney may not appear as a substitute, unless an exception is granted by the Tribunal prior to the start of the hearing.

To be considered timely, the Respondent’s attorney or representative must:

Appear at the earliest scheduled hearing time on each summons to be heard or, where applicable, at the earliest scheduled hearing time indicated on each adjournment order or reschedule notice for each summons, and

Be available and ready to proceed within three (3) hours of the scheduled hearing time on each summons to be heard or, where applicable, within three (3) hours of the scheduled hearing time indicated on each adjournment order or reschedule notice for each summons to be heard.

The failure to make a timely appearance constitutes a default and may subject the Respondent to penalties in accordance with § 6-20.

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§6-25 Misconduct

Prohibited Conduct. Individuals appearing before the Tribunal, including parties, witnesses, Representatives, and attorneys, must not engage in misconduct. Misconduct includes but is not limited to:

Abusive, disorderly, or delaying behavior, a breach of the peace, or any other disturbance that directly or indirectly tends to disrupt, obstruct, or interrupt the proceedings or operations of the Tribunal;

Disruptive conduct or communication that a reasonable person would believe to be intimidating or that shows contempt or disrespect for the proceedings or operations of the Tribunal;

Disregarding the authority of a Hearing Officer or a Tribunal employee or contractor. This may include refusing to comply with directions or behaving in a disorderly, delaying, or obstructionist manner;

Leaving a hearing in progress without the permission of the Hearing Officer;

Attempting to influence or offer to influence any Hearing Officer or Tribunal employee or contractor by the use of threats, accusations, duress, coercion, promise of advantage, or giving or offering any gift, favor, or thing of value;

Attempting to influence a decision by initiating communication with a Hearing Officer before or after a hearing;

Entering any non-public area unless accompanied or authorized by a Tribunal employee or contractor. Upon the conclusion of a hearing or upon direction by a Tribunal employee or contractor, the parties, witnesses, Representatives, and attorneys must promptly exit non-public areas;

Requesting any Tribunal employee or contractor to perform tasks that are illegal;

Operating without express authorization any Tribunal computer terminal or other equipment at any time, unless the equipment has been designated for use by the public;

Making a statement, submitting a document, or presenting testimony or other evidence to the Tribunal known to be false or that a reasonable person would know to be false, fraudulent, or misleading, including the submission of a false authorization form;

Inducing or encouraging anyone to make a false statement to the Tribunal;

Soliciting a party or causing the solicitation of a party by another person on Tribunal premises. The exchange of money in any area of the Tribunal will create a rebuttable presumption of solicitation;

Falsely claiming to be an attorney or government employee;

Making or causing to be made an electronic, audio, audiovisual, or other verbatim or photographic reproduction of any proceeding, regardless of whether the proceeding is conducted in person or by remote methods, except upon a request to the Hearing Officer, who may grant or deny the request in full, in part, or upon such conditions as the Hearing Officer deems necessary to preserve the decorum of the proceedings and to protect the interests of the parties, witnesses, and any other concerned persons;

Engaging in any conduct or course of conduct that demonstrates a lack of honesty and integrity in the representation of parties. This includes, but is not limited to, making false or misleading statements, misappropriating fees, and providing misinformation concerning the payment of penalties and fines; and

Threatening to disclose information related to another person's actual or perceived immigration status for the purpose of intimidating or harming the other person in order to affect the outcome of the proceeding.

General Discipline for Misconduct.

Failure to abide by the rules of conduct contained in this section and any other rules of the Tribunal constitutes misconduct. OATH may, for good cause, suspend or bar from attending a proceeding or appearing before the Tribunal any attorney, Representative, member of the public, or witness, other than material fact witness, who fails to abide by these rules. OATH may make public a list of individuals who have been suspended or barred from appearing at the Tribunal.

OATH will provide the individual charged with misconduct with a written notice of the charges setting forth the alleged misconduct and specifying the date by which the individual must respond in writing.

OATH will review the notice of charges, the written response, and all evidence presented, and render a final written determination, based on the preponderance of evidence presented.

Discipline for Behavior Warranting Summary Suspension. Notwithstanding the provisions of subdivision (b) of this section, OATH may summarily suspend or bar a Representative or attorney upon a determination that the Representative or attorney has engaged in behavior before the Tribunal of such a severity that OATH determines that a suspension or bar must be implemented on a summary basis to maintain the integrity, safety, or operations of the Tribunal. The summary suspension or bar is effective on the date set forth in the notice of charges.

Procedures for Summary Suspension.

Upon imposing summary suspension, OATH will provide the individual charged with a written notice of the charges setting forth the conduct allegedly warranting summary suspension, as well as any other allegations of misconduct. Such notice shall be made in a manner reasonably calculated to achieve actual notice to such individual. The notice of charges will contain a warning that a finding of misconduct might result in a bar.

The Respondent may request an in-person trial within fifteeen (15) days of service of the notice of charges. Failure to make a timely request will be deemed a waiver of an in-person trial.

If the Respondent requests an in-person trial, OATH will schedule a trial in OATH’s Trials Division to be held within fifteen (15) days of receipt of the request. The trial will be conducted pursuant to chapter 1 of this title, and the notice of charges will constitute the petition referenced in §§ 1-22 and 1-23 of this title.

Notwithstanding § 1-24 of this title, a Respondent must file a written answer within fifteen (15) days of service of the notice of charges.

The administrative law judge presiding over the trial will determine (i) whether the Representative or attorney engaged in misconduct; (ii) whether the summary suspension should be continued; and (iii) any applicable penalty.

A final determination shall be issued within thirty (30) days of the end of the in-person trial. If a determination is not made during this timeframe, any summary suspension must be lifted.

If a Respondent does not request an in-person trial on the summary suspension within the time specified in paragraph (2) of this subdivision, the Respondent shall be deemed to have waived the right to an in-person trial before an administrative law judge, and the matter shall proceed pursuant to the rules for General Discipline of Misconduct under subdivision (b) of this section. Where a Respondent waives the right to an in-person trial, the summary suspension will continue until a final determination is made by OATH.

Judicial Review. A decision pursuant to subdivision (b), (c) or (d) of this section constitutes a final determination. Judicial review of the determination may be sought pursuant to Article 78 of the New York Civil Practice Law and Rules.

Prohibition against Ex Parte Communication.

Except for ministerial matters, and except on consent or in an emergency, communications with a Hearing Officer concerning a case must occur only with all parties present, either in person or by remote means. If a Hearing Officer receives an ex parte communication concerning the merits of a case to which the Hearing Officer is assigned, then the Hearing Officer must promptly disclose the communication by placing it on the record, in detail, including all written and oral communications and identifying all individuals with whom the Hearing Officer has communicated. A party desiring to rebut the ex parte communication will be allowed to do so upon request.

Communications between a Hearing Officer or other relevant OATH employee and a party that are necessary in order to place a hearing or other meeting on a calendar shall be considered ministerial communications.

This section in no way limits the powers of a Hearing Officer as set out in § 6-13 of this chapter.

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§6-26 Request for a New Hearing Due to Unauthorized Representation

Notwithstanding any other provision of these rules, a party may, within three (3) years after a decision pursuant to a hearing has become final, move to vacate the decision on the grounds that the person who appeared on the party's behalf at the hearing was not authorized to do so. Upon a determination that the person who appeared was not authorized to represent the party, the Tribunal may vacate the decision and schedule a new hearing. In exceptional circumstances and in order to avoid injustice, the Tribunal will have the discretion to grant a motion to vacate a decision after the three (3) year period has lapsed.

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§6-27 Defense Based on Sovereign or Diplomatic Immunity

A Respondent may present a defense based on sovereign or diplomatic immunity:

in a written submission received no later than seven (7) business days before the hearing date stated on the summons, in which the Respondent may admit or deny the violation charged and the Tribunal will assign the matter to a Hearing Officer; or

at a hearing orally or in writing, but only if an attorney or authorized representative of the Petitioner is present at the hearing or if the Respondent at that time consents to an adjournment of the hearing; or

in a response submitted in any case in which adjudication by remote method is allowed pursuant to §6-10.

Upon presentation of a defense based on sovereign or diplomatic immunity, the Hearing Officer must issue an order:

adjourning the hearing for no less than thirty (30) and no more than sixty (60) days;

setting forth in detail the violations alleged in the summons; and

giving notice to the City entity charged with serving as the official liaison with foreign governments ("liaison") that the Respondent has presented a defense based on sovereign or diplomatic immunity, in which event the Tribunal will promptly serve such order to such liaison.

After an adjournment is granted under subdivision (b), either party may request to extend the time period of the adjournment. The Hearing Officer must grant such request if it is accompanied by a written submission from the liaison indicating more time is necessary for the parties to resolve the matter.

At a hearing held following an adjournment granted pursuant to subdivision (b), the Hearing Officer must issue a determination whether or not the Respondent is entitled to sovereign or diplomatic immunity.

If the Hearing Officer determines that the Respondent is entitled to sovereign or diplomatic immunity, he or she must dismiss the summons without a determination of the Respondent's liability.

If the Hearing Officer rejects the defense of sovereign or diplomatic immunity, a hearing on the violation must be conducted pursuant to the rules governing hearings in this Chapter.

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§6-28 Application to File a Post-Hearing Agreement

A written application to file a post-hearing agreement must be made jointly and with the consent of all the parties to a matter. Such applications must be made to the designated Deputy Commissioner of OATH, or his or her designee as approved by the Chief Administrative Law Judge. The post-hearing agreement will not amend the Hearing Officer's final written decision and when filed, will become part of the record.

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