Chapter I - Subchapter D

§1-41 Consolidation; Separate Trials.

Consolidation; Joint Trial

JOINT TRIAL ORDERED

ALJ consolidated for trial four petitions brought against a correction officer alleging failure to obey direct orders and timely take assigned post, behaving disrespectfully and using profanity, failure to adequately secure cleaning equipment, and allowing multiple persons in custody unauthorized access to the pantry area. Dep’t of Correction v. Nathan, OATH Index No. 2358/24 (Sept. 19, 2024).

ALJ consolidated for trial two petitions brought against a community coordinator alleging excessive absences, attempted inappropriate relationship with a client, failure to attend a mandatory interview, and submission of false documents. Dep’t of Social Services (Dep’t of Homeless Services) v. Pena, OATH Index No. 874/24 (Sept. 3, 2024).

In furtherance of judicial economy and sua sponte, ALJ consolidated matters involving multiple violations against the same respondent for trial. Business Integrity Comm’n v. KAM Materials Inc., OATH Index Nos. 191/24 & 192/24 (June 4, 2024); Business Integrity Comm’n v. MJJ Trucking LLC, OATH Index Nos. 908/24 & 909/24 (May 21, 2024); Business Integrity Comm’n v. Rongwang Waste Inc., OATH Index Nos. 3583/23, 3586/23, 1131/24 (Nov. 6, 2023).

ALJ granted contested application to consolidate to substantially similar cases for trial. Comm’n on Human Rights v. DiFiore Realty, LLC, OATH Index Nos. 2386/22 & 1732/23 (July 26, 2023).

Request to consolidate nine charges under two index numbers granted where respondent failed to demonstrate that he would be prejudiced and did not rebut the presumption that an ALJ will appreciate that evidence tending to prove (or disprove) one set of charges will not necessarily be relevant to the other set of charges. Dep’t of Correction v. Frederique, OATH Index Nos. 1361/22 & 1237/22 (Mar. 15, 2023), adopted, Comm’r Dec. (Apr. 12, 2023).

Motion to consolidate rent adjustment and de-coverage applications granted where tenants, who occupy registered IMD units in the building, have a vested interest in ensuring that any deregulation of a unit or the building occurs in an orderly manner. Matter of Various Tenants of 239 Banker Street, Brooklyn, New York, OATH Index Nos. 155/21, 291/21, 300/21, 313/21, 1217/21, 085/22, & 2318/21, mem. dec. (May 25, 2022).

Petitioner’s motion to consolidate two actions, originally filed separately, was granted without objection. Dep’t of Environmental Protection v. Pepe, OATH Index Nos. 1415/19 & 1719/19 (Feb. 18, 2020), adopted, Comm’r Dec. (June 8, 2020).

Contested consolidation request granted after trial began because respondent had sufficient time before the next trial date to prepare, there was no prejudice to respondent, and consolidation furthered judicial and administrative efficiency by permitting the development of a full record relating to the units in the building. Matter of Saladino, OATH Index Nos. 2412/13 & 1879/14 (May 20, 2016), adopted in part, rejected in part, Loft Bd. Order No. 4714 (Nov. 30, 2017).

Administrative law judge consolidated harassment and access applications for trial. Matter of Alkara, OATH Index No. 1101/03 (Oct. 6, 2004), adopted in part, modified in part, Loft Bd. Order No. 2920 (Apr. 21, 2005) & Matter of Plot Realty, LLC, OATH Index No. 1285/03 (Oct. 6, 2004), adopted, Loft Bd. Order No. 2920 (Apr. 21, 2005).

Six separate license revocation proceedings against six different licensees, involving identical charges and common issues of law and fact, were consolidated by the administrative law judge sua sponte pursuant to this section. Dep't of Buildings v. Catapano, OATH Index Nos. 1066/97, 1091/97, 1122/97, 1184-86/97 (July 17, 1997).

Where joint adjudication and trial of two pending cases pursuant to the Loft Law would conserve resources for the parties and this tribunal, consolidation of the two cases was ordered. Matter of 315 Berry Street Corp., OATH Index No. 764/96, mem. dec. (Nov. 9, 1995).

Under this section and section 1-26(a) of this chapter, joint trial of cases involving the same parties is mandatory unless real and substantial prejudice by joint trial is shown. It is presumed that the trial judge will be able to distinguish proper inferences and arguments from improper ones. Human Resources Admin. v. Man-of-Jerusalem, OATH Index No. 790/91, mem. dec. (Nov. 12, 1991).

Severance

GENERALLY

Administrative adjudication is intended to be expeditious and efficient, and therefore such proceedings as bifurcated trials are largely alien to administrative law, and the presumption against bifurcation of trial is quite a heavy one. Dep't of Environmental Protection v. Bruni, OATH Index No. 1038/96, mem. dec. (May 16, 1996).

Severance of the petition for two separate trials is a matter for the trial judge's discretion. Bd. of Education v. Osoba, OATH Index No. 237/92 (Feb. 28, 1992).

SEVERANCE GRANTED

After the first day of trial, and to avoid unnecessarily delaying the trial on use of force related charges, ALJ severed the off-duty misconduct charge, without objection, for a separate trial pursuant to OATH Rule 1-41. Dep’t of Correction v. Cerrato, OATH Index No. 2021/22 (May 31, 2022), adopted, Comm’r Dec. (July 6, 2022).

ALJ granted agency’s request to sever a disciplinary charge and hold it in abeyance pending the outcome of the case. Dep’t of Correction v. N. M., OATH Index No. 2829/23 (July 10, 2023).

Where resolution of a preliminary issue in favor of the respondent would dispose of the case, alleviating the need for the petitioner to call its main witness on the merits of the case from North Carolina, and where the trial would take two days even if not bifurcated, the possibility of saving the petitioner and the taxpayers the considerable expense of bringing the out-of-state witness to trial warranted a bifurcated trial and resolution of the preliminary issue. Dep't of Environmental Protection v. Bruni, OATH Index No. 1038/96, mem. dec. (May 16, 1996).

Where the parties were ready to proceed to trial on certain employee disciplinary charges but not others, and where five days had been set aside for trial, severance was preferable to a continuance or last-minute adjournment of trial. Bd. of Education v. Osoba, OATH Index No. 237/92 (Feb. 28, 1992).

SEVERANCE DENIED

Motion to have two cases heard by different ALJs denied where respondent failed to demonstrate prejudice and consolidation of the two matters, which involved identical charges and common issues of law and fact, conserve resources for the parties and this tribunal. Taxi & Limousine Comm’n v. Alam, OATH Index Nos. 1833/10 & 2075/10 (Apr. 9, 2010).

ALJ denied motion to sever charges brought against architect based upon the interests of justice, judicial economy and convenience.  The same ten witnesses would be called on each specification charged.  Dep’t of Buildings v. Scarano, OATH index No. 2571/08, mem. dec. (Mar. 18, 2009).

Taxi driver’s motion to have two cases heard by two different Administrative Law Judges was denied.  Driver failed to demonstrate prejudice, and consolidation of the two matters, which involved identical charges and common issues of law and fact, conserved judicial resources for the parties and the tribunal.  Taxi & Limousine Comm’n v. Alam, OATH Index Nos. 1833/10 & 2075/10 (Apr. 9, 2010).

On application to sever trial, charged employee failed to rebut heavy presumption against bifurcation given that interests of administrative efficiency weigh in favor of consolidating incidents for trial. Dep't of Correction v. Graham, OATH Index No. 1380/03 (Feb. 25, 2004).

The contention by both parties that bifurcation of trial might improve the prospects of a settlement of the case was, by itself, insufficient to justify bifurcation. Dep't of Environmental Protection v. Bruni, OATH Index No. 1038/96, mem. dec. (May 16, 1996).

The fact that the petition alleged multiple counts of misconduct, even multiple counts of similar misconduct, was not a basis for separate trials on the different counts. Human Resources Admin. v. Man-of-Jerusalem, OATH Index No. 790/91, mem. dec. (Nov. 12, 1991); Police Dep't v. Ruotolo, OATH Index No. 612/91 (Mar. 14, 1991).

TIMELINESS OF MOTION FOR SEVERANCE

Untimeliness of a motion for a severance, made on the day of trial, was an important factor weighing against grant of the motion. Police Dep't v. Ruotolo, OATH Index No. 612/91 (Mar. 14, 1991); see also Police Dep't v. Combs, OATH Index Nos. 1073/91, 422/92 (July 7, 1992).