N.Y. Comp. Codes R. & Regs. tit. 9 § 465.12 : EXECUTIVE DEPARTMENT — Division of Human Rights — Rules Of Practice — Hearings

Hearings shall be held as provided in section 297.4(a) of the New York State Human Rights Law.

(a) Consolidations. Two or more complaints may be scheduled simultaneously before the same administrative law judge, who may consolidate or sever them.

(b) Appearances.

(1) All parties to the proceeding, other than a respondent whose default in answering has not been excused, may be present and shall be allowed to present testimony in person or by counsel and cross-examine witnesses.

(2) If a notice of hearing has not been delivered to a party, the division in its discretion may postpone a scheduled hearing to determine whether that party expects to attend a hearing, or whether the complaint should be dismissed for administrative convenience, default entered, or other appropriate action taken.

(3) If a respondent fails to appear at the duly noted time and place of the hearing and the hearing is not adjourned, irrespective of whether an answer to the complaint has been filed, the hearing shall proceed on the evidence in support of the complaint. Upon application, the administrative law judge or chief administrative law judge may, for good cause shown, reopen the proceeding, upon equitable terms and conditions.

(4) Prior to an order after hearing, a default entered upon a respondent's failure to appear may be reopened, for good cause shown, upon written application to the administrative law judge or chief administrative law judge.

(c) New parties.

(1) In the discretion of the administrative law judge, any other person who has a substantial personal interest may be allowed to intervene as a party, in person or by counsel.

(2) The administrative law judge may require that any person not already a party be joined as a necessary party to the proceeding. A party may move that a person be joined as a necessary party.

(3) In such joinder, the hearing shall be adjourned unless the person ordered to be joined is present and consents to waive service of notice of hearing and pleadings and to proceed as if he or she had been designated as such necessary party in the original complaint.

(4) In the event of such adjournment, the division shall serve a new notice of hearing and an amended complaint upon the person so joined and upon all other parties, and shall also serve on the person so joined copies of the previous pleadings and a notice that the prior hearing record may be examined at the division's offices during normal business hours, by appointment.

(5) Upon such waiver of notice by a person who is present, or upon service of such new notice of hearing and an amended complaint, the hearing shall proceed as if the party so joined had been designated in the original complaint.

(d) Who shall conduct.

(1) Hearings shall be conducted by an administrative law judge designated by the division. All case assignments shall be made by the chief administrative law judge. All calendaring decisions shall be subject to the approval of the chief administrative law judge. No person who shall have previously made the investigation, engaged in a conciliation proceeding or caused the notice of hearing to be issued, shall act as an administrative law judge in such case.

(2) The division may, in its discretion, at any time prior to the completion of a hearing, substitute one administrative law judge for another. The hearing shall continue upon the previous record.

(3) Disqualification of an administrative law judge. If a party files a timely and sufficient affidavit of personal bias or disqualification of an administrative law judge, the matter shall be referred to the chief administrative law judge, who shall permit other parties to submit affidavits, and then shall determine the matter upon such affidavits. If an affidavit is submitted to disqualify the chief administrative law judge, the matter shall be referred to the executive deputy commissioner for determination. Any such determination shall be made part of the record in the case.

(e) Form and content of proof. The administrative law judge, in conducting the hearing, should utilize any procedures consonant with due process to elicit evidence concerning the ultimate issues. The following guidelines shall govern.

(1) Hearsay evidence is fully admissible.

(2) There shall be no required order to the presentation of the evidence.

(3) Documentary evidence may be admitted without testamentary foundation, where reasonable.

(4) Witness information need not be introduced in the form of question and answer testimony.

(5) Information from witnesses may be introduced in the form of affidavits, without oral examination and cross examination.

(6) The parties shall not be denied the right to examine or cross examine a witness, where necessary and reasonable.

(7) Oral testimony shall be given under oath.

(8) Evidence shall not be received in camera.

(9) Written stipulations may be introduced in evidence if signed by the person sought to be bound thereby or by that person's attorney-at-law. Oral stipulations may be made on the record at open hearing. The entire record may be in the form of a stipulation, submitted to the chief administrative law judge without the convening of a hearing before an administrative law judge.

(10) All materials relating solely to conciliation or settlement discussion shall be placed in a separate folder and shall not form part of the formal evidentiary record. All settlement discussions shall be held in camera.

(11) Where reasonable and convenient, the administrative law judge may permit the testimony of a witness to be taken by telephone, subject to the following conditions:

(i) a person within the hearing room can testify that the voice of the witness is recognized, or identity can otherwise be established;

(ii) the administrative law judge, reporter and respective attorneys can hear the questions and answers; and

(iii) the witness is placed under oath and testifies that he or she is not being coached by any other person.

(12) Where affidavits or other forms of proof are not sufficient, an administrative law judge may authorize a deposition to be taken on oral or written questions and shall admit such deposition into evidence at a hearing in lieu of the personal appearance and testimony of the deponent at the hearing, subject to the following conditions:

(i) all parties and counsel have been offered a reasonable opportunity to participate in the taking of the deposition and to cross-examine thereat;

(ii) the deponent is unable to come to a hearing for any reason of personal hardship;

(iii) the deposition was taken before any person authorized to administer an oath in the place where the deposition is taken, and is either subscribed and sworn to by the deponent, or certified as accurate by the stenographer, or is taken in the form of a tape recording;

(iv) the absence of cross-examination shall not be a bar to the admission of such deposition; provided, however, that if justice so requires, the deponent may be subject to further inquiry by additional deposition; and

(v) any other reasonable condition fixed by the administrative law judge.

(f) Powers of the administrative law judge. The administrative law judge shall have the following powers to control the presentation of the evidence and the conduct of the hearing:

(1) to fully control the procedure of the hearing, subject to these rules, and to rule upon all motions and objections, and make recommended orders as to motions to dismiss and summary judgement motions;

(2) to refuse to consider objections which unnecessarily prolong the presentation of the evidence;

(3) to foreclose the presentation of evidence that is cumulative, argumentative, or beyond the scope of the case;

(4) to place evidence in the record without an offer by a party;

(5) to call and to examine witnesses;

(6) to administer oaths;

(7) to exclude non-party witnesses who have not yet testified from the hearing room;

(8) to direct the production of documents and other evidentiary matter;

(9) to propose stipulations of fact for the parties' consideration;

(10) to issue interim or tentative findings of fact at any point during the hearing process;

(11) to issue questions delimiting the issues for hearing;

(12) to propose settlement terms for the parties' consideration at any time during the proceeding, or to issue an equitable order as set forth more fully in subdivision (m) of this section;

(13) to direct further hearing sessions for the taking of additional evidence or for other purposes, upon the administrative law judge's own finding that the record is incomplete or fails to provide the basis for an informed decision; and

(14) to amend the complaint to conform to the proof.

(g) Investigation file. The regional investigation file, which is also available to the parties, will be made available to the administrative law judge at least 30 days prior to the preliminary conference pursuant to subdivision (h) of this section.

(h) Preliminary conference. The first session of the hearing, for which the parties will be given notice pursuant to section 465.11 of this Part, shall begin with a preliminary conference before the administrative law judge. The conduct of this preliminary conference shall be as follows:

(1) All legal and factual issues of the case which relate to the conduct of the hearing or the presentation of the evidence will be discussed, and the parties, by their advocates, shall be prepared to address these issues.

(2) Parties shall bring to the preliminary conference all documentary evidence in their control which is to be offered in evidence. Items already present in the investigatory file need not be separately produced. The administrative law judge will determine what documents are necessary to complete the record. Documents shall be assembled and placed in the record at this time through notation by the administrative law judge.

(3) Parties will provide a list of proposed witnesses, with explanation of their identity and the scope of their knowledge of the facts of the case. The administrative law judge will determine the witnesses necessary to complete the record.

(4) The administrative law judge may, at his discretion or at the suggestion of a party, request the production of additional documents and/or additional witnesses, and may agree to the issuance of subpoenas, as necessary.

(5) The administrative law judge may, at the preliminary conference or at a later time, propose possible stipulations of fact, or issue to the parties interim or tentative findings of fact, and/or issue to the parties questions for hearing, and may take any other steps necessary to limit and frame the issues to be addressed in the hearing.

(6) The administrative law judge shall establish a schedule for the presentation of testimony, and shall, to the extent practical, resolve all issues relating to the conduct of the hearing and the presentation of the evidence.

(7) The record of the preliminary conference will be kept in the form of the administrative law judge's formal notes.

(i) Hearing record. The record of the hearing may be taken by shorthand reporting, tape recording, or other reasonable method. The method chosen shall be within the discretion and direction of the chief administrative law judge. At all hearing sessions, the administrative law judge shall take formal notes listing all matters made part of the record, which shall be attached as an appendix to the recommended order.

(j) Public hearings. Hearings shall be open to the public, expect in extraordinary circumstances. Oral testimony shall not be taken in camera. The administrative law judge may exclude from the hearing room or from further participation in the proceeding any person who engages in improper conduct at the hearing, except a party to the proceeding, an attorney of record, or a witness engaged in testifying. The hearing shall be conducted with dignity and respect.

(k) Trade secrets and privacy. Where desirable, the administrative law judge in consultation with counsel may provide for the use of devices such as deletion of names and coding in order to protect personal privacy or information, including trade secrets which, if made public, would result in unfair advantage to competitors. In extraordinary circumstances, the administrative law judge shall have the discretion to close the hearing to the public to protect the rights of the parties.

(l) Ex parte communications. No person shall communicate with the administrative law judge subsequent to the commencement of a hearing on any matter relating to the case, other than a status inquiry, unless a copy of such communication is sent to all parties to the proceeding. If such a communication is made in violation of this rule, a copy of the communication, or a written summary if the communication was oral, shall be sent to all the parties by the administrative law judge.

(m) Settlements.

(1) Where the parties agree to a settlement during the course of the hearing, the procedures set forth in section 465.16 of this Part shall apply.

(2) The proposed settlement shall contain terms as set forth in section 465.16(b) of this Part.

(3) Where voluntary settlement is not reached, offers of settlement by respondent shall be reviewed by the administrative law judge to determine whether such settlement offer is substantial enough to require an order, in the public interest, terminating the proceeding. The following criteria are among those which should be considered:

(i) probability of success after full hearing;

(ii) reasonableness of offer;

(iii) reasonableness of complainant's refusal, if any;

(iv) the amount of the complainant's economic loss, and respondent's degree of responsibility therefor;

(v) in appropriate cases, the evidence of the amount of complainant's mental pain and suffering;

(vi) the egregiousness of the discrimination charged; and

(vii) whether the public interest is best served by the continuation of the proceedings.

(4) Objections by a complainant to a proposed settlement shall be oral or written, at the discretion and direction of the administrative law judge, who shall set a time frame for the submission of the objections. The objections shall be specific and in detail.

(5) Where the administrative law judge finds the terms of the proposed settlement to be in the public interest, and that the complainant's objections to the proposed settlement are without substance, he or she may, upon request of respondent, issue a recommended equitable order for the commissioner's consideration, providing that the respondent will pay the complainant the amount proposed in the settlement and dismissing the complaint on the merits.

(n) Deaf persons. Whenever any deaf person is a party to a hearing, or a witness therein, the division shall appoint a qualified interpreter who is certified by a recognized national or New York State credentialing authority to interpret the proceedings to, and the testimony of, such deaf person.

(o) Oral arguments and briefs. The administrative law judge may permit the parties or their attorneys, the division attorney and interveners and interested organizations to argue orally within such time limits as the administrative law judge may determine. Trial briefs will only be permitted where specifically requested by the administrative law judge, on particular points of law. Any such brief shall be filed in duplicate with the administrative law judge, with proof of service upon all counsel in the proceeding and parties appearing without counsel. Full written arguments will be permitted in the form of objections as provided for in section 465.17(c) of this Part.

(p) Continuations, adjournments and substitutions of administrative law judge. The division may postpone a scheduled hearing, or continue a hearing from day-to-day or adjourn it to a later date or to a different place, by announcement thereof at the hearing or by appropriate notice to all parties. No adjournment of a scheduled hearing shall be granted except upon affidavit of actual engagement before a higher tribunal or for good cause shown in writing. The chief administrative law judge may review and change the adjourned dates.

(q) Time frames for recommended orders. The chief administrative law judge shall establish time frames for writing of recommended orders by the administrative law judge who conducts the hearing. The administrative law judge shall adhere strictly to such time frames.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 465.12