Hearings shall be held as provided in section
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.
(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
(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.
(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
(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
(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.
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
(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
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
(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
(6) The parties shall
not be denied the right to examine or cross examine a witness, where necessary
(7) Oral testimony
shall be given under oath.
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.
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.
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
administrative law judge, reporter and respective attorneys can hear the
questions and answers; and
the witness is placed under oath and testifies that he or she is not being
coached by any other person.
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
deponent is unable to come to a hearing for any reason of personal
(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
(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.
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
(2) to refuse to consider
objections which unnecessarily prolong the presentation of the
(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
(6) to administer
(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;
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
(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
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
conference. The first session of the hearing, for which the parties will be
given notice pursuant to section
of this Part, shall begin with a preliminary conference before the
administrative law judge. The conduct of this preliminary conference shall be
(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
(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.
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.
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
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
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
(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
(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
Where the parties agree to a settlement
during the course of the hearing, the procedures set forth in section
of this Part
settlement shall contain terms as set forth in section
of this Part.
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
(ii) reasonableness of
(iii) reasonableness of
complainant's refusal, if any;
the amount of the complainant's economic loss, and respondent's degree of
appropriate cases, the evidence of the amount of complainant's mental pain and
(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.
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.
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
of this Part.
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