OATH Final Rule Amending Appearance Procedures

Adopted Rules: Closed to Comments

Effective Date: 
Friday, January 4, 2019
Agency:
Download Copy of Adopted Rule (.pdf): 

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 sections 6-09 and 6-24 of subchapter F of chapter 6 of title 48 of the rules of the City of New York, concerning appearances. 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 from Jack Jaffa & Associates concerning the requirement that attorneys and registered representatives must email OATH no later than noon two business days before a scheduled hearing date, a written list of scheduled cases if a representative plans to appear on fifteen or more summonses on a given hearing date. They stated that this requirement is a detriment as OATH does not allow the addition of cases to the list once it has been submitted to OATH.

The amendments to section 6-24 do not substantively change the requirement to appear on fifteen or more summonses on a given hearing date, which was originally promulgated so that the OATH Hearings Division could effectively manage the large volume of hearings scheduled for adjudication each day. Each OATH Hearings Division location manages hundreds of hearings a day, requiring procedures and systems to efficiently advance the hearing calendar. By notifying OATH in advance that one registered representative or attorney will appear on fifteen or more summonses, the Tribunal can then determine how to best allocate its resources to expedite hearings and reduce wait time for both self-represented and represented respondents. The two-day advance notice requirement is necessary for OATH to manage its day-to-day operations.

 

Upon further review, OATH revised section 6-09(b)(1) so that a respondent may timely appear within three hours of the scheduled hearing time instead of within two hours of the scheduled hearing time. Recognizing that many respondents at OATH are self-represented, this amendment gives respondents an additional hour to timely appear for a hearing and avoid a default decision that imposes higher penalties. OATH also revised sections 6-09(b)(1) and 6-24(a)(2) to clarify that this three hour allowance does not apply to registered representatives or attorneys who are appearing on fifteen or more summonses on a given hearing date. OATH also included in section 6-24(a) the requirement that Notices of Appearance be submitted in advance of the hearing as directed by the Tribunal, which comports with OATH’s current process.

 

Statement of Basis and Purpose of Final Rule

 

The Office of Administrative Trials and Hearings (OATH) amends section 6-09 of subchapter C and section 6-24 of subchapter F of chapter 6 of title 48 of the rules of the City of New York, concerning appearances.

 

The amendments to section 6-09 reorder the subdivisions and clarify the rules about appearing before the Tribunal, as follows:

 

·         Subdivisions (a) and (b) set out who may appear on behalf of a respondent and how a respondent or representative may appear.

·         Subdivision (c) explains that if a respondent does not wish to contest the summons, they can pay the penalty before the hearing, which is considered an appearance and admission.

·         Subdivision (d) provides the framework for when a current owner of a property may appear on behalf of a prior owner.

·         Subdivision (e) provides that the failure of a respondent to timely appear constitutes a default.

·         Subdivision (f) references the requirements in § 6-24 for registered representatives who wish to appear on 15 or more summonses on a given hearing date, and provides that failure to comply with § 6-24 will constitute a default. 

·         Subdivisions (g) and (h) set out how Petitioner may timely appear, and provide that the hearing may proceed without Petitioner.

 

The amendments to section 6-09 are intended to expedite hearings and improve the overall efficiency of the Tribunal.  These amendments set timeframes for Respondent and Petitioner’s appearance to be considered timely. Section 6-09(b)(1) adds the condition that a respondent’s appearance is timely if the respondent appears at the scheduled hearing location within three hours of the scheduled time. Section 6-09(g) adds the condition that, if the Petitioner elects to appear at the Tribunal, Petitioner’s appearance is timely if Petitioner is ready to proceed within 30 minutes of the timely appearance of the respondent.

 

The amendments to section 6-09 also no longer permit a person to move for discretionary intervention, which, if granted, would have allowed an intervenor to participate in a hearing, as a witness but not as a party, at the discretion of the hearing officer. Discretionary intervention was rarely sought and did not grant the intervenor the status of a party to the proceeding.

 

The amendments to section 6-24 clarify the requirements for an attorney or registered representative to appear on 15 or more summonses on a given hearing date.