Chapter I - Subchapter D

§ 1-45 Failure to Appear.

Late Appearance for Trial

Late arrival to trial by counsel with a history of such late arrivals resulted in the formal admonishment of counsel. Dep't of Correction v. Pesante, OATH Index No. 618/93 (Mar. 31, 1993).

Default

PROCEDURE

Upon failure of respondent to appear, and on showing of proof of service, a hearing may proceed in the form of an inquest. Dep’t of Buildings v. Owners, Occupants and Mortgagees of 1517 Rowland Street, Bronx, OATH Index No. 896/00 (Mar. 13, 2000).

Upon a respondent's failure to appear for trial in a case under the conflicts of interest law, the administrative law judge will scrutinize the notice of petition and notice of trial for compliance with sections 1-23 and 1-28 of this chapter, but need not inquire whether the address at which the respondent was served was the respondent's actual address. Proper procedure is to declare the respondent to be in default and to permit the petitioner to proceed to trial in the respondent's absence, subject to any post-trial motions made by the respondent. Conflicts of Interest Bd. v. Two City Employees, OATH Index Nos. 605, 641/94 (Apr. 8, 1994).

DEFAULT GRANTED

Default properly granted where a respondent is properly served and does not appear for trial.  Respondents’ advised as to the process for filing a motion to vacate the default, Business Integrity Comm’n v. Cara Construction Services, Inc., OATH Index Nos. 3651/23 & 3652/23 (Nov. 29, 2023); Dep’t of Transportation v. Weiss, OATH Index No. 1305/24, mem. dec. (Nov. 22, 2023).

Respondent found in default when he did not appear for trial after his adjournment request was denied. Dep’t of Buildings v. 112-33 159 Street, Queens, New York, OATH Index No. 1672/17 (June 16, 2017).

Where a taxi driver appeared for trial on license revocation charges and the administrative law judge delayed the commencement of trial briefly to allow the driver's attorney time to arrive, and the driver left without explanation before his attorney arrived, trial proceeded in the driver's absence pursuant to this section, and the driver's attorney was permitted to withdraw as counsel. Taxi and Limousine Comm'n v. Herrera, OATH Index No. 509/98 (Nov. 20, 1997).

Because a food cart licensee is required by the Health Code to keep a current address on file with the Department of Health, the Department's service of the requisite notices by regular and certified mail to the licensees' addresses of record was legally sufficient, and the Department was entitled to proceed to trial in the licensees' absence pursuant to this section. Dep't of Health v. Moustafa, OATH Index Nos. 533/98, 535/98 (Nov. 5, 1997).

Where service of notices was made by mail to an employee's last known address, and no other address for the employee was known, the employer was entitled to proceed to trial in the employee's absence pursuant to this section, although all of the notices were returned undelivered. Health and Hospitals Corp. (Bellevue Hospital Center) v. Barber, OATH Index No. 193/98 (Aug. 15, 1997).

Where the petitioner presented evidence that two licensees had signed certified mail receipt cards evidencing their actual receipt of notice of the petition and notice of the hearing, and one of the licensees had written to the petitioner stating that he had no objection to the revocation of his license, the petitioner was entitled pursuant to this section to proceed to trial in the licensees' absence. Dep't of Buildings v. Catapano, OATH Index Nos. 1066/97, 1091/97, 1122/97, 1184-86/97 (July 17, 1997).

Where an employee had notice of employee disciplinary charges against him, and the circumstances indicated that the employee did not wish to defend the charges or retain his employment, the employer was entitled to proceed to trial in the employee's absence notwithstanding untimely notice of trial pursuant to sections 1-26(d) and 1-28 of this chapter. Dep't of Correction v. Boyce, OATH Index No. 1227/97 (Apr. 29, 1997).

Where the record contained two different addresses for a former city contractor, and service of notices was made by mail to both addresses, the fact that the notices mailed to one of the addresses were returned by the postal service did not render service insufficient because there was no indication that the other address was not valid. Therefore, the petitioner was entitled pursuant to this section to proceed to trial in the former contractor's absence. Office of the Comptroller v. Kallo Building Construction Co., Inc., OATH Index No. 868/97 (Mar. 11, 1997).

Where an employee, who was required by the employer's rules of conduct to keep his current address on file with the employer, was served with notice of employee disciplinary proceedings by mail to his address of record and was given actual notice of the trial by telephone call from his union representative, the employer was entitled to proceed to trial in the employee's absence pursuant to this section. Health and Hospitals Corp. (Jacobi Medical Center) v. Williams, OATH Index No. 282/97 (Oct. 30, 1996).

Upon the respondent's failure to appear for trial in a license revocation proceeding, the petitioner's proof of proper service of the petition and notice of the hearing, and proof of the respondent's actual knowledge of the petition and hearing date, were sufficient to permit the trial to proceed in the respondent's absence. Taxi and Limousine Comm'n v. Vedrine, OATH Index No. 1001/95 (Sept. 7, 1995); see also Taxi and Limousine Comm'n v. Min, OATH Index No. 669/96 (Nov. 13, 1995).

Upon the 26 respondents' failure to appear for trial in a case brought pursuant to section 12-110 of the Administrative Code, proof of proper service of the petitions and notices of hearing was sufficient to permit trial to proceed in the respondents' absence. Conflicts of Interest Bd. v. Twenty-Six Individual Respondents, OATH Index Nos. 135/96, et al. (Oct. 16, 1995).

Upon the respondents' failure to appear for trial in a case brought pursuant to section 26-127.2 of the Administrative Code, the petitioner's proof of proper service of the petition and notice of the hearing date was sufficient to permit the trial to proceed in the respondents' absence. Dep't of Buildings v. Owners and Occupants of 84-19 115th Street, Queens, New York, OATH Index No. 1236/95 (June 29, 1995).

Where the respondent in an employee disciplinary case pursuant to section 75 of the Civil Service Law conveyed through his attorney his desire not to attend trial due to the pendency of the respondent's federal civil rights action against the petitioner, the attorney's motion to withdraw from representation of the respondent was granted and trial proceeded in the respondent's absence. Bd. of Education v. Clarke, OATH Index No. 285/95 (Feb. 2, 1995).

Inability of the respondent to attend trial, due to his incarceration, was no impediment to proceeding in his absence. Transit Auth. v. Daniels, OATH Index No. 140/94 (Nov. 18, 1993).

DEFAULT DENIED

Because service of the petition on the individual and corporate respondents was inadequate under section 1-23(b) of this chapter, the petitioner was not entitled to proceed to trial in the absence of the respondents. Taxi and Limousine Comm'n v. Larch Cab Corp., OATH Index No. 363/94 (Nov. 29, 1993).