Chapter I - Subchapter C

§ 1-26 Docketing the Case.

Absent prejudice, cases involving the same respondent will be scheduled for joint trials. Dep’t of Correction v. Frederique, OATH Index Nos. 1361/22, 1237/22 (Mar. 15, 2023), adopted, Comm’r Dec. (Apr. 12, 2023).

Ex parte Trial Calendaring

EX PARTE VERSUS JOINT CALENDARING

In an employee disciplinary case, the agency's trial scheduling was ex parte notwithstanding the agency's consultations about available dates with the law firm representing the employee's union, because the employee had not yet retained the law firm, and because the law firm was not a party to either the telephone call or the written submission by which the agency subsequently docketed the case and scheduled the trial. Dep't of Correction v. Brown, OATH Index No. 1208/94 (Aug. 11, 1994).

TIME TO SERVE NOTICE OF TRIAL

After trial is calendared by the petitioner ex parte, notice of trial must be served within one business day. Dep't of Correction v. Brown, OATH Index No. 1208/94 (Aug. 11, 1994).

When a petitioner selects a trial date ex parte upon docketing the case at OATH, the petitioner must serve notice of trial within one business day of selecting that date. Transit Auth. v. Brady, OATH Index No. 959/93 (Aug. 13, 1993).

FAILURE TO SERVE TIMELY NOTICE OF TRIAL

Notice of trial not served within one business day of selecting the date, as required.  Counsel admonished to follow proper procedure in the future, but no further sanction was imposed, Comm’n on Human Rights v. Britati Realty, Inc., OATH Index No. 778/13 (May 21, 2013).

Although the petitioner failed to serve the respondent with notice of trial within one business day of the ex parte selection of the trial date as required by paragraph (d) of this section, no sanction was imposed on the petitioner, and the petitioner was permitted to proceed to trial in the respondent's absence, because the circumstances indicated that the respondent did not wish to defend the employee disciplinary charges against him and did not wish to retain his employment. Dep't of Correction v. Boyce, OATH Index No. 1227/97 (Apr. 29, 1997).

Where the respondent did not show that he was prejudiced by the petitioner's late service of notice of trial pursuant to paragraph (d) of this section, the remedy for late notice was not an adjournment of trial, but an admonishment of petitioner's counsel. Dep't of Correction v. Brown, OATH Index No. 1208/94 (Aug. 11, 1994).

Absent prejudice to the respondent, the appropriate remedy for late notice of trial, pursuant to paragraph (d) of this section, was an admonishment of petitioner's counsel, not removal of the case from the trial calendar. Transit Auth. v. Brady, OATH Index No. 959/93 (Aug. 13, 1993).

TIMING OF HEARING, PRE-HEARING SUSPENSION

With its base station license pre-suspended by the Taxi and Limousine Commission, the licensee filed a petition with OATH, asking that a hearing on the underlying charges be scheduled. Although this rule permits the docketing of a matter by motion, since the Commission’s rules expressly give the Commission discretion to defer a base license revocation proceeding until a reasonable time after the final disposition of related criminal charges, the motion to have a hearing scheduled must be denied. Haven Car Service Corp. v. Taxi and Limousine Comm’n, OATH Index No. 994/98, mem. dec. (Feb. 9, 1998).

Joint Trial Calendaring

Where the case is docketed by one party ex parte, but trial is not scheduled at the time of docketing pursuant to paragraph (d) of this section, subsequent scheduling of trial may not be done by ex parte communication with the Calendar Unit but must be done by conference call to the administrative trial judge assigned to the case. Dep't of Health v. Protzel, OATH Index No. 613/98 (Dec. 10, 1997).