N.Y. Comp. Codes R. & Regs. Tit. 20 § 3000.11 - Stipulations for hearing

(a) General.

(1)

(i) With the exception of those instances where the petitioner does not desire to stipulate any facts, the parties are required to stipulate, to the fullest extent to which complete or qualified agreement can or fairly should be reached, all facts not privileged which are relevant to the pending controversy. Included in matters required to be stipulated are all facts, all documents and papers or contents or aspects thereof, and all evidence which fairly should not be in dispute. Where the truth or authenticity of facts or evidence claimed to be relevant by one party is not disputed, an objection on the ground of materiality or relevance may be noted by any other party but is not to be regarded as just cause for refusal to stipulate. The requirement of stipulation applies under this Part without regard to where the burden of proof may lie with respect to the controversies involved. Documents or papers or other exhibits annexed to or filed with the stipulation shall be considered to be part of the stipulation.

(ii) After the petitioner initiates conferences with the office of counsel to facilitate agreement on the facts, the petitioner shall draw a proposed stipulation of facts and submit it to the office of counsel. Failure to complete a stipulation is not a basis for adjournment of the hearing, and the parties shall endeavor to conclude the drafting of the stipulation in advance of the scheduled hearing. The office of counsel shall review the proposed stipulation drawn by the petitioner and shall indicate its agreement or disagreement with every proposed fact to be stipulated. Where the office of counsel disagrees, its position as to the fact in question should be stated.

(2) The fact that any matter may have been obtained through any other authorized procedure is not a ground for omitting such matter from the stipulation. Such other procedures should be regarded as aids to stipulation, and matter obtained through them, which is within the scope of paragraph (1) of this subdivision, must be set forth comprehensively in the stipulation, in logical order in the context of all other provisions of the stipulation.

(b) Form. Stipulations shall be in writing, signed by the parties thereto or by their representative, and shall be filed with the supervising administrative law judge in duplicate. Only one set of exhibits shall be required. Documents or other papers, which are the subject of stipulation in any respect and which the parties intend to place before the Division of Tax Appeals, shall be annexed to or filed with the stipulation. The stipulation shall be clear and concise. Separate items shall be stated in separate paragraphs, and shall be appropriately numbered. Exhibits attached to a stipulation shall be lettered serially.

(c) Filing. Executed stipulations prepared pursuant to this subdivision, and related exhibits, shall be filed by the parties with the supervising administrative law judge, at or before commencement of the hearing of the controversy, unless the supervising administrative law judge shall otherwise specify. A stipulation, when filed, need not be offered formally to be considered in evidence.

(d) Objections. Any objection to all or any part of a stipulation should be noted in the stipulation, but the administrative law judge or presiding officer will consider any objection to a stipulated matter made at the commencement of the hearing or for good cause shown, made during the hearing.

(e) Binding effect. A stipulation shall be treated, to the extent of its terms, as a conclusive admission by the parties to the stipulation, unless otherwise permitted by the tribunal, administrative law judge or presiding officer, or agreed upon by the parties. The tribunal, administrative law judge or presiding officer will not permit a party to a stipulation to qualify, change or contradict a stipulation in whole or in part, except where justice requires. A stipulation and the admissions therein shall be binding and have effect only in the pending proceeding and not for any other purpose, and cannot be used against any of the parties thereto in any other proceeding.

(f) Noncompliance by a party.

(1) Motion to compel stipulation. If, at the date of issuance of a hearing notice in a controversy, a party has refused or failed to confer with his or her adversary with respect to entering into a stipulation in accordance with this section, or has refused or failed to make a stipulation of any matter within the terms of this section, the party proposing to stipulate may, within 90 days of service of the proposed stipulation, make a motion to the tribunal, on notice to the other party or representative, if any, for an order directing that the matters covered in the motion should be deemed admitted for the purposes of the hearing. The motion shall be filed with the supervising administrative law judge and shall:

(i) show with particularity and by separately numbered paragraphs each matter which is claimed for stipulation;

(ii) set forth the specific stipulation which the moving party proposes with respect to each such matter, together with a copy of each document or other paper as to which the moving party desires a stipulation;

(iii) set forth the sources, reasons, and bases for claiming, with respect to each such matter, why it should be stipulated to;

(iv) show that the other party has been informed of and has had reasonable access to the sources or bases for the stipulation, and the reasons for stipulation; and

(v) show proof of service of a copy of the motion papers on the other party or the party's representative, if any.

(2) Procedure. Within 20 days of the service of the notice of the motion, that party shall file a response with the supervising administrative law judge, with proof of service of a copy thereof on the other party or representative, if any, showing why the matter set forth in the motion papers should not be deemed admitted for purposes of the pending controversy. The response shall list each matter involved on which there is no dispute, referring specifically to the numbered paragraphs in the motion to which the admissions relate. Where a matter is disputed only in part, the response shall show the part admitted and the part disputed. Where the responding party is willing to stipulate in whole or in part with respect to any matter in the motion by varying or qualifying a matter in the proposed stipulation, the response shall set forth the variance or qualification and the admission which the responding party is willing to make. Where the response claims that there is a dispute as to any matter in part or in whole, or where the response presents a variance or qualification with respect to any matter in the motion, the response shall show the sources, reasons and bases on which the responding party relies for that purpose. The supervising administrative law judge, where it is found appropriate, may schedule the motion for a hearing before an administrative law judge at such time as the supervising administrative law judge shall determine.

(3) Failure to respond. If no response is filed within the period specified with respect to any matter or portion thereof, or if the response is evasive or not fairly directed to the proposed stipulation or portion thereof, that matter or portion thereof will be deemed stipulated for purposes of the pending controversy, and an order will be entered accordingly.

(4) Matters considered. Opposing claims of evidence will not be weighed unless such evidence is patently incredible. Nor will a genuinely controverted or doubtful issue of fact be determined in advance of the hearing. The supervising administrative law judge will determine whether a genuine dispute exists, or whether in the interests of justice a matter ought not be deemed stipulated.

Notes

N.Y. Comp. Codes R. & Regs. Tit. 20 § 3000.11