OATH Final Rule Amending Procedural Rules concerning Requests for New Hearing After Default

Adopted Rules: Closed to Comments

Effective Date: 
Friday, January 4, 2019
Agency:

City of New York

Office of Administrative Trials and Hearings

 

Notice of Promulgation of Rule

 

NOTICE IS HEREBY GIVEN PURSUANT TO THE AUTHORITY VESTED in the Office of Administrative Trials and Hearings (OATH) in accordance with Sections 1049 and 1043 of the New York City Charter that OATH amends section 6-21 of subchapter E of chapter 6 of title 48 of the Rules of the City of New York, concerning requests for new hearings after default. The proposed rule was published in The City Record on August 27, 2018, and a public hearing was held on September 26, 2018. 

 

No one testified at the public hearing concerning this rule. OATH received one written comment about this rule from Jack Jaffa & Associates under the heading “Limited Adjournments/Rescheduling,” stating that the proposed rule mandates that a second default decision is not subject to review or appeal at the Tribunal. Notably, this amendment is merely a clarification of that fact. The amendments to section 6-21(e) do not address the processes by which a respondent may request a reschedule or adjournment. OATH did not make any additional amendments to the rule based on this written comment.

 

Statement of Basis and Purpose of Final Rule

 

The Office of Administrative Trials and Hearings (“OATH”) amends section 6-21 of subchapter E of chapter 6 of title 48 of the Rules of the City of New York, concerning requests for new hearings after a failure to appear. OATH replaces references to “motion to vacate a default” with “request for a new hearing after default,” which is easier for the public to understand and is similar to the terminology on OATH’s forms and website. OATH also made amendments to clarify subdivisions (e) and (f) of section 6-21. Subdivision (e) applies to respondents seeking to file a second request for a new hearing, and subdivision (f) applies to respondents filing a first request for a new hearing at least one year after receipt of the default decision. 

 

The first paragraph of subdivision (e) clarifies that respondents who have defaulted twice are not eligible to file another request for a new hearing and that the second default decision is the Tribunal’s final determination, subject to judicial review pursuant to Article 78 of the New York Civil Practice Law and Rules. The second paragraph of subdivision (e) clarifies the exception under which the Chief Administrative Law Judge or his or her designee may consider granting a new hearing after the issuance of a second default decision. These amendments make clear that there are no additional administrative procedures to exhaust after the receipt of a second default decision in order to file a petition pursuant to Article 78. 

 

The amendments to subdivision (f) clarify that the discretion of the Chief Administrative Law Judge or his or her designee to consider a request for a new hearing more than one year from the date of the default decision applies only if it is the first such request made by the respondent.