Chapter I - Subchapter D

§1-46 Evidence at the Hearing.

Rules of Evidence

ALJ's Discretion to Limit Evidence

ALJ excluded evidence offered by petitioner to show other employees accepted penalties in satisfaction of charges arising from same incident. Such evidence would lead to protracted mini-trials where the parties would explore other officers’ reasons for accepting penalties. Subsection (b) of this section authorizes limits on testimonial or documentary evidence. Dep’t of Correction v. Jackson, OATH Index Nos. 2927/10, 2929/10, 2930/10 & 2931/10 (Apr. 7, 2011), rejected on other grounds, Comm’r Dec. (Nov. 22, 2011).

BEST EVIDENCE

Loft Board rejected owner’s argument that the best evidence rule applies and that the leases provided for a unit should be given no probative value because they are copies, not originals. Matter of 400 South 2nd Street Tenants, OATH Index No. 1018/16 (Sept. 7, 2018), adopted in part, rejected in part, Loft Bd. Order No. 4860 (Mar. 21, 2019), reconsideration denied, Loft Bd. Order No. 4904 (Oct. 17, 2019) & Loft Bd. Order No. 4974 (May 21, 2020).

HEARSAY

Respondent argued that petitioner did not prove the charge that he misappropriated a Department collection truck because much of its case rested on hearsay. The ALJ disagreed, finding that petitioner met its burden of proof because of the consistency of the hearsay evidence, including recorded statements, and the extensive corroborating evidence. Dep’t of Sanitation v. Anonymous, OATH Index No. 525/24 (Sept. 9, 2024), adopted, Comm’r Dec. (Oct. 4, 2024).

Petitioner established that respondent engaged in an inappropriate and unauthorized interaction with a shelter client. The ALJ found that the client’s hearsay statements to an agency employee, who testified at trial, and respondent’s text messages to the client were sufficiently detailed and reliable to form the basis of the finding that respondent violated the agency rule. Dep’t of Social Services (Dep’t of Homeless Services) v. Pena, OATH Index No. 874/24 (Sept. 3, 2024).

ALJ found that two witnesses’ hearsay statements, offered by respondent to rebut the complainant’s allegation that he struck her with a glass jar, were not reliable evidence. There was no evidence of who the witnesses were, their ages, their relationship to respondent, or their understanding of why they were making the statements. There was also no explanation as to why they were unable to testify and be subjected to cross-examination. Further, the first witness served as the translator for the second witness’s statement, raising the question of the accuracy of the translation and of the influence, if any, the first witness may have had over the statement. Taxi & Limousine Comm’n v. Ali, OATH Index No. 192/25 (Aug. 8, 2024).

Petitioner did not establish that respondent was unfit to hold a TLC Driver License where it primarily relied on the multiple levels of hearsay in the arrest and complaint reports, the attenuated nature of which diminished their reliability. Taxi & Limousine Comm’n v. Fazal, OATH Index No. 1769/24 (Feb. 16, 2024), adopted, Comm’r Dec. (Feb. 26, 2024).

In recommending that the suspension of respondent’s TLC Driver License be lifted, ALJ credited respondent’s testimony that he did not engage in any physical altercation with a passenger over the unsworn hearsay statements in the police reports. Taxi & Limousine Comm’n v. Mia Salim, OATH Index No. 1770/24 (Jan. 2, 2024), adopted, Comm’r Dec. (Jan. 4, 2024).

In a Loft Board coverage proceeding raising the issue whether there was a valid sale of rights by prior tenants, ALJ determined that letters, although unsigned and unsworn, were probative of a material issue, namely, the terms of the sale of rights that respondent contends occurred. ALJ also found that the letters had indicia of reliability and were credible, probative evidence. Matter of Lin, OATH Index Nos. 957/20 & 958/20 (Dec. 8, 2023).

In order to ascertain the probative value and reliability of hearsay evidence, this tribunal has relied on several factors, including the identity of the hearsay declarant, the availability of the declarant to testify, the declarant's personal knowledge of the facts, the independence or bias of the declarant, the detail and range of the hearsay, whether the statements were oral or written, signed and sworn or unsworn, the degree to which the hearsay is corroborated, the centrality of the hearsay evidence to the agency's case, and the magnitude of the administrative burden should the hearsay be excluded. Police Dep’t v. Niambele, OATH Index No. 651/24, mem. dec. (Sept. 20, 2023).

ALJ afforded no weight to double hearsay statement made to an investigator during an EEO interview. OATH has consistently held that hearsay upon hearsay, especially when it concerns a critical issue, is too unreliable to support any fact findings. Dep’t of Correction v. Lewis, OATH Index No. 2739/23 (Nov. 29, 2023).

Driver’s suspension continued where, even accounting for the multiple levels of hearsay in the criminal complaint, the allegations were serious as they involved respondent using a deadly weapon to cut open a window screen, entering the apartment through the window, and then kicking and spitting in the complainant’s face. Taxi & Limousine Comm’n v. Forde, OATH Index No. 240/24 (Aug. 24, 2023), adopted, Comm’r Dec. (Sept. 12, 2023).

ALJ credited respondent’s sworn testimony, which was consistent, clear, and subject to cross-examination, over the criminal court complaint, which is based on multiple levels of hearsay. Taxi & Limousine Comm’n v. Oyebamiji, OATH Index No. 352/24 (Aug. 18, 2023), adopted, Comm’r Dec. (Aug. 24, 2023).

Based on the meager hearsay evidence presented and lack of any contemporaneous documents, petitioner failed to meet its burden of proving that respondent made uncivil or discourteous comments or that she pushed the school nurse. Dep’t of Health & Mental Hygiene v. Wu, OATH Index No. 588/23 (June 26, 2023), adopted, Comm’r Dec. (July 18, 2023), aff’d, Civ. Serv. Comm’n Case No. 2023-0405 (Oct. 5, 2023).

Hearsay is admissible in administrative proceedings and may form the sole basis for a finding of fact. The hearsay must be sufficiently probative of a material fact and must have some objective indicia of reliability. Contemporaneous statements evince reliability. E-mail from co-worker to trial witness that she had just seen respondent yelling at her supervisor was found to be reliable hearsay that supported witness’ testimony. Transit Auth. v. Victor, OATH Index No. 799/11 (Mar. 3, 2011), adopted, Authority Determination (Mar. 24, 2011), aff’d, NYC Civ. Serv. Comm’n Item No. CD-11-52-A (Aug. 9, 2011).

Notation on file folder, in the absence of an affidavit from the administrative aide who mailed the notice, was found to be insufficient to prove the Police Department mailed respondent the notice within five business days after it seized the vehicle. Police Dep’t v. Martinez, OATH Index No. 2118/11, mem. dec. (May 3, 2011).

Computerized records in petitioner’s Business Information Systems (BIS) admitted into evidence over respondent’s objection where petitioner’s witness explained how petitioner migrated to a virtually paperless system by scanning the original documents into BIS and storing them offsite, as part of its current business practice. Dep’t of Buildings v. Ward, OATH Index No. 1746/11 (Sept. 1, 2011), adopted, Comm’r Dec. (Sept. 13, 2011).

Taxicab Technology System (“TTS”) data obtained by Taxi and Limousine Commission designated vendors and the reports created therefrom are admissible as business records in license revocation proceeding. Taxi & Limousine Comm’n v. Azim, OATH Index No. 1818/11 (June 30, 2011), adopted, Comm’r Dec. (Aug. 15, 2011).

Computer printout of 90 occasions where taxi driver allegedly activated out-of-town rate (“Rate 4”) for rides wholly within the City is admissible as a business record, even if the printout was prepared for trial, as long as the underlying data was compiled in the ordinary course of business and entered at or near the time of the transaction. Taxi & Limousine Comm’n v. Carniol, OATH Index No. 1736/11 (June 24, 2011), adopted, Comm’r Dec. (Aug. 15, 2011).

E-mail from 311 call center summarizing complaint from named individual was admissible in civil servant’s disciplinary hearing. Petitioner was not required to produce declarant as a witness or audio recording of the 311 call, where witness was not within petitioner’s control and recording was routinely erased before the matter was referred to petitioner for discipline. The e-mail, although hearsay, was sufficiently detailed and reliable to be considered. An investigator spoke to the declarant and confirmed the substance of the complaint. Petitioner was able to verify facts which corroborated details contained in the complaint. Dep’t of Environmental Protection v. Johnson, OATH Index No. 1330/10 (May 13, 2010), penalty rescinded by stipulation, NYC Civ. Serv. Comm’n Item No. CD 11-14-O (Apr. 19, 2011).

A DMV abstract of respondent’s driving record was admitted as a business record over respondent’s objections, the ALJ finding that it was a certified copy of an electronic business record admissible under CPLR 4518(a), and that, even if it were not, strict compliance with the rules of evidence with regard to hearsay was not required by the tribunal. Dep’t of Sanitation v. Torrence, OATH Index No. 2515/10 (July 22, 2010).

Rules against hearsay and the Dead Man's Statute do not preclude witness testimony of statements by a deceased declarant under subsection (a) of this section. In administrative proceedings, hearsay is admissible if it is considered probative at the discretion of the administrative law judge. Matter of Kushner, OATH Index Nos. 2736/09 & 2737/09, mem. dec. (June 11, 2009).

Dead man's statute did not preclude receipt in evidence of interview statements made by witness, now deceased, to investigators at the NYC Department of Investigation. Hearsay is admissible in administrative hearings conducted at OATH; further, the Dead Man's statute only precludes testimony of a conversation between an interested witness and the deceased, not between the deceased and the defendant. Dep't of Buildings v. Stallone Testing Laboratories, Inc., OATH Index No. 362/10 (Aug. 26, 2009).

Dead Man's statute will not be applied reflexively in administrative hearing. Dep't of Housing Preservation & Development v. 331 West 22nd Street LLC, OATH Index No. 912/06, mem. dec. (Dec. 29, 2006).

In a default proceeding, one-page conclusory memos from a supervisor were found to be unreliable and insufficient to sustain charges of insubordination and neglect of duty. Other hearsay was found to have established unauthorized absence and excessive lateness charges. Dep't of Homeless Services v. Ighodaro, OATH Index No. 1594/99 (June 14, 1999).

Hearsay account of threatening phone call was found insufficient to prove conduct absent testimony of victim, since her credibility was placed in question, having been the former paramour of respondent's husband. Dep't of Correction v. Aiken, OATH Index No. 1750/99 (Aug. 4, 1999), aff'd, NYC Civ. Serv. Comm'n Item No. CD 01-25-SA (Apr. 12, 2001).

Hearsay was found insufficient to meet petitioner's burden of proof that respondent used excessive force against a civilian, where it was central to the outcome of the case, complainant had arguable bias, complainant failed to make a complaint or appear at the hearing but instead had fled criminal court jurisdiction and made prior inconsistent statements. Police Dep't v. Nieves, OATH Index No. 1888/99 (Oct. 4, 1999).

Hearsay, consisting of affidavit from out-of-state passenger, was insufficient to meet petitioner's burden of proof where credibility questions concerning the complainant's version, motive and honesty required that the right to cross-examination not be dispensed with. Taxi and Limousine Comm'n v. Gamliel, OATH Index No. 996/98 (July 24, 1998).

Administrative law judge issued preliminary ruling from the bench that the Dead Man's Statute, CPLR section 4519, is inapplicable in a Loft Board hearing. Party's objection to receipt of testimony on that basis was deemed waived where party did not avail himself of the opportunity to submit authority to the contrary. Matter of Sultan, OATH Index Nos. 1314-15/98, at 14, n. 1 (Aug. 18, 1998), adopted, Loft Bd. Order No. 2323 (Oct. 27, 1998).

Where the petitioner offered hearsay and double hearsay statements that were contemporaneously made, at a time when the subject matter of the statements was not known to be an issue, and where the respondent's trial testimony contrary to those statements was not credible, the hearsay statements were credited. Bd. of Education v. Roman, OATH Index No. 1555/97 (Sept. 30, 1997).

Prior sworn testimony - in this case, the testimony of a witness at two criminal trials - is among the most reliable forms of hearsay. Transit Auth. v. Tarquini, OATH Index Nos. 1585-87/96 (Aug. 1, 1997).

Although hearsay is often less reliable than testimony given subject to cross-examination, hearsay was credited over contrary testimony where the hearsay was given contemporaneously and was found to be reliable. Dep't of Correction v. Boyce, OATH Index No. 789/97 (July 9, 1997), aff'd, NYC Civ. Serv. Comm'n Item No. CD 99-75-SA (July 19, 1999).

A hearsay declarant does not present herself to the trier of fact for assessment of her demeanor and credibility; does not submit to cross-examination in which the certainty of her perceptions, her motivations and biases, the reliability of her memory, and her character may be tested by one with a motive to test them vigorously. Therefore, the fact that hearsay is admissible in administrative proceedings does not mean that hearsay is not skeptically received. Triborough Bridge and Tunnel Auth. v. Simms, OATH Index No. 1303/97 (May 30, 1997), aff'd, NYC Civ. Serv. Comm'n Item No. CD 98-123-SA (Dec. 30, 1998).

In general, hearsay evidence is admissible in administrative trials. Transit Auth. v. Castro, OATH Index No. 748/95 (Mar. 7, 1995); see also Davidson v. Dep't of Correction, OATH Index No. 545/95 (Feb. 7, 1995).

COMPETENCE

Although hearsay is permissible under the relaxed standards of evidence applicable to administrative proceedings, competence rules remain applicable, and a fact can only be alleged by a person who is, and who shows that she is, in a position to know that fact. An allegation related as hearsay must include an indication of the source of the allegation and the competence of that source to know the thing alleged. Penn-Troy Machine Company, Inc. v. Dep't of General Services, OATH Index No. 478/93, mem. dec. (Mar. 2, 1993).

ADVERSE INFERENCES

Where respondent did not call his girlfriend to testify as an alibi witness, ALJ drew the limited inference that she would not support respondent’s testimony about being out to dinner at the time that material directly outside respondent’s house was loaded onto a truck and that his girlfriend’s testimony would not contradict the opposing evidence offered by petitioner. Dep’t of Sanitation v. Anonymous, OATH Index No. 525/24 (Sept. 9, 2024), adopted, Comm’r Dec. (Oct. 4, 2024).

In a Krimstock proceeding, ALJ declined to draw an adverse inference based on respondent’s election not to testify while facing criminal liability. ALJ found no occasion to apply an adverse inference that the evidence withheld would be unfavorable to the respondent, as respondent did not invoke the Fifth Amendment. Further, ALJ found no occasion to draw an adverse inference where petitioner failed to satisfy the first prong of the Krimstock Order. Police Dep’t v. Battle, OATH Index No. 2550/24, mem. dec. (Mar. 28, 2024).

ALJ denied respondent’s request to draw an adverse inference against petitioner for failing to call a witness, who wrote a notarized letter that was admitted into evidence, to testify. Although the person had knowledge material to the matter, ALJ saw no need to apply an adverse inference upon petitioner’s decision not to call her as a witness since there was nothing in the record to suggest that her testimony would be anything but a recital of the information contained in her notarized letter. Health & Hospitals Corp. (Gotham) v. Alston-Harris, OATH Index No. 379/23 (Jan. 16, 2024).

No adverse inference was drawn from petitioner's unintentional loss of tape recordings of witness interviews, because respondent had summaries of the witnesses' statements and was able to cross-examine the witnesses effectively. Dep't of Correction v. Whitehead, OATH Index No. 1552/97 (Oct. 10, 1997).

Where the refusal of a witness to appear and testify against the respondent was not shown to be based on a desire to avoid testifying falsely against the respondent, no adverse inference was drawn against the petitioner. Transit Auth. v. Tarquini, OATH Index Nos. 1585-87/96 (Aug. 1, 1997).

Where the respondent declined to testify and give explanations for the evidence against him, the administrative law judge was permitted to draw the strongest inference against the respondent that the evidence permitted. Dep't of Correction v. Sorisio, OATH Index No. 2110/96 (Apr. 30, 1997); see Dep't of Correction v. Brookins, OATH Index No. 193/97 (Apr. 21, 1997).

PRIOR CRIMINAL CONVICTION

A federal court conviction, based on the respondent's guilty plea, was binding on the respondent here, and he was not free to contest the facts established by his conviction. Dep't of Buildings v. Gelb, OATH Index No. 2155/96 (Mar. 3, 1997), aff'd, Sup. Ct. N.Y. Co. Index No. 107934/97, Decision and Order (Dec. 11, 1998) (Daniels, J.).

PRIOR CONDUCT

As a general rule, petitioner may not use a prior disciplinary disposition that was adverse to the respondent to prove that respondent is guilty of the instant disciplinary charges. Dep't of Correction v. Whitehead, OATH Index No. 1552/97 (Oct. 10, 1997).

As a general rule, it is improper to prove that a person did an act on a particular occasion by showing that he did a similar act on a different, unrelated occasion. Therefore, evidence of prior, similar but unrelated acts by the respondents was properly excluded. Dep't of Housing Preservation and Development v. Isidro, OATH Index No. 777/96 (Mar. 27, 1996), aff'd, NYC Civ. Serv. Comm'n Item No. CD 97-39-SA (June 13, 1997).

QUALIFICATION AS AN EXPERT

In a disciplinary case, petitioner argued after trial that a social worker’s testimony about cognitive dissonance should be disregarded because he was not qualified as an expert. The ALJ was unpersuaded, finding that the social worker testified extensively about his educational background and experience, and respondent’s counsel was clear in questioning him that he was asking questions based on the social worker’s expertise. Petitioner’s counsel also did not object to the social worker’s testimony on the basis that he had not been formally qualified as an expert. Dep’t of Sanitation v. Anonymous, OATH Index No. 525/24 (Sept. 9, 2024), adopted, Comm’r Dec. (Oct. 4, 2024).

Admissibility of Particular Evidence

POLYGRAPH

In the exercise of discretion, ALJ admitted polygraph test results in a disciplinary hearing at the accused worker's request, where the worker presented sufficient evidence that a recognized expert performed the test on a properly functioning machine. Dep't of Sanitation v. Bacigalupo, OATH Index No. 2091/07 (Jan. 25, 2008).

PHOTOGRAPHS

ALJ rejected photograph offered by counsel for building owners and occupant to prove that a sign had been removed, where counsel did not present a witness who could testify that the photograph was an accurate depiction of the premises as of the date of trial. Since the photograph was not authenticated it was not admitted into evidence. Dep't of Buildings v. 395 Second Avenue, New York Co., OATH Index No. 1997/09 (Apr. 2, 2009).

AUDIOTAPE OR VIDEOTAPE

ALJ admitted into evidence recordings of 911 calls from onlooker witnesses over respondent’s objection on hearsay grounds. Dep’t of Correction v. Santos, OATH Index No. 1349/15 (Oct. 26, 2015), adopted, Comm’r Dec. (Mar. 9, 2016), aff’d, NYC Civ. Serv. Comm’n Case No. 2016-0207 (June 20, 2016).

Driver’s TLC license suspension based on an arrest and pending criminal charges lifted where driver introduced three videos showing that the complainant was suffering audio and visual hallucinations on the day of the incident. Taxi & Limousine Comm’n v. Ashraf, OATH Index No. 1115/22 (Feb. 7, 2022), adopted, Comm’r Dec. (Feb. 14, 2022).

Disciplinary charge sustained where most of respondent’s testimony was less than credible and inconsistent with the video evidence. Triborough Bridge & Tunnel Auth. v. Ballestero, OATH Index No. 1384/21 (Dec. 17, 2021), modified on penalty, Pres. Dec. (Jan. 20, 2022).

Video recorded by store owner admitted into evidence over respondent’s objection. The store owner who filmed respondent authenticated the video by explaining how he made the recording and identifying himself, respondent, and her partner. Although the store owner admitted that he deleted portions of the video, those omissions impact the weight of the shop owner’s testimony about what occurred during the edited sequences, not the admissibility of the video. In addition, the prosecuting agency had no control over the editing of this video and was not responsible for creating the evidence that was provided to them directly from the store owner, who testified about the conversation and was subject to cross-examination. Dep’t of Consumer & Worker Protection v. Smith, OATH Index No. 1524/20 (Oct. 22, 2021), adopted, Comm’r Dec. (Dec. 7, 2021), modified on penalty, NYC Civ. Serv. Comm’n Case No. 2021-0872 (May 6, 2022).

Complainant’s video recording admitted into evidence, even though the complainant was not present to testify as to the accuracy and completeness of the recording and to establish that it was unaltered, where the complainant had filed a contemporaneous report with the Inspector General's office, which allowed the ALJ to make reasonable inferences as to the completeness of the recording and as to whether it accurately depicted the incident. Triborough Bridge & Tunnel Auth. v. McDonald, OATH Index No. 2691/19 (Dec. 16, 2019), adopted, Pres. Dec. (Dec. 31, 2019), aff’d, NYC Civ. Serv. Comm’n Case No. 2020-0105 (Feb. 12, 2021).

Recorded phone interview of the victim and a copy of the audio recording and transcript were admitted into evidence over respondent’s objection on hearsay grounds because the recorded interview was found to be reliable and probative. Fire Dep’t v. Johnson, OATH Index No. 1147/18 (May 3, 2018), aff’d, NYC Civ. Serv. Comm’n Case No. 2018-0645 (Nov. 23, 2018).

Videotape which depicted respondent as a defendant on “The People’s Court” excluded from evidence for lack of foundation where offering party did not obtain the video from its creator, and no one from complainant-organization appeared to testify as to how it came into possession of the video, whether its contents were authentic and whether it was in its original form. Dep’t of Buildings v. Ward, OATH Index No. 1746/11 (Sept. 1, 2011), adopted, Comm’r Dec. (Sept. 13, 2011).

If a break in the chain of custody of an audio tape recording was established or the tape had been tampered with, this would affect the weight of the evidence, not its admissibility. Tape recording of conversations of complainant, tenant, and respondent, landlord, admitted into evidence. Comm’n on Human Rights ex rel. Lukasiewicz v. Cutri, OATH Index No. 2131/10 (Dec. 8, 2010), modified on other grounds, Comm’n Dec. & Order (Feb. 17, 2011).

Video recordings, taken together with testimony of person who made the recordings, found to be sufficiently reliable to admit as evidence in administrative hearing. Comm'n on Human Rights ex rel. Okoumou v. County Recovery Corp., OATH Index No. 445/09 (Feb. 6, 2009), modified on penalty, Comm'n Dec. & Order (July 7, 2009).

A segment of videotape was admitted into evidence based on the testimony of one of the participants in the incident shown on the videotape, that the tape fairly depicted what had occurred, and based on the testimony of the person who copied the videotape from the original, that the tape segment was unedited and continuous. A second segment of videotape, compiled by editing videotape from three cameras at three different angles, was admitted into evidence based on the testimony from the person who compiled the videotape from the originals, that he had copied all portions of the three different original videotapes that showed any portion of the incident in question, and had compiled them into a single tape to show one continuous sequence of events. Triborough Bridge and Tunnel Auth. v. Simmons, OATH Index No. 1166/96 (May 1, 1997).

GPS

GPS evidence admitted in license revocation proceeding brought against taxi driver charged with overcharging passenger on multiple occasions. Taxi & Limousine Comm’n v. Azim, OATH Index No. 1818/11 (June 30, 2011), adopted, Comm’r Dec. (Aug. 15, 2011).

DOCUMENTS SEALED BY COURT ORDER

Documents obtained by the petitioner before the conclusion of a criminal case that was disposed of favorably to the respondent, and before those documents were sealed by court order, could not be introduced into evidence at a subsequent employee disciplinary proceeding against the respondent unless the petitioner obtained an unsealing order from the court that had sealed the records. However, a witness was permitted to testify to the events at issue based on recollection independent of the sealed records, and the petitioner was permitted to introduce into evidence reports of the petitioner's investigators which contained information taken from the criminal case records before those records were sealed. Dep't of Correction v. Toby C., OATH Index No. 1692/96 (Sept. 19, 1997).

In a vehicle retention hearing, car owner’s request to exclude from evidence the record of a settlement of a prior vehicle retention proceeding was denied as the settlement is a record of a civil case, not a criminal matter terminated in favor of the accused under the sealing provision in the criminal procedure law. Police Dep’t v. Espinal, OATH Index No. 1383/11, mem. dec. (Dec. 23, 2010).

TRANSCRIPT OF INTERVIEW

Where a former agency employee did not comply with a subpoena to testify, agency sought to admit into evidence a transcript of his unsworn interview in its case-in-chief over respondent’s objection on due process grounds. In overruling the objection, ALJ noted that she would review the interview to determine its reliability and credibility. Dep’t of Transportation v. G.A., OATH Index No. 1967/21 (Nov. 10, 2022), adopted, Comm’r Dec. (Dec. 9, 2022).

Charge alleging false statement at MEO-16 interview not sustained where the transcript or audio recording of interview were not offered into evidence at trial. Dep’t of Correction v. James, OATH Index Nos. 971/22 & 972/22 (Apr. 11, 2022), adopted, Comm’r Dec. (June 24, 2022).

Audio recordings and the transcripts of the MEO 16 interviews were admitted into the record only for the limited purposes of refreshing recollections and for impeachment purposes. Fire Dep’t v. Allas, OATH Index No. 899/21 (Oct. 12, 2021).

A transcript of the respondent's investigatory interview was admitted into evidence at trial, despite the fact that the transcript was not notarized, because the transcript certification included the stenographer's statement that the transcript was a true and accurate record of the proceeding held in her presence. Dep't of Buildings v. Mogg, OATH Index No. 1757/96 (May 31, 1996), modified as to penalty, Comm'r Dec. (June 24, 1996); Dep't of Buildings v. Purrier, OATH Index No. 1744/96 (May 29, 1996), modified as to penalty, Comm'r Dec. (June 24, 1996).

Administrative law judge admitted into evidence the transcript of respondent's investigatory interview over respondent's objection that he was never offered an opportunity to correct any errors in the transcription of his statements. While CPLR section 3116(a) requires that a deposed person be given his deposition for changes and signing (see also CPLR section 5525(c)), no departmental rule or regulation requires a similar procedure be followed for a recorded investigatory interview. The collective bargaining agreement provided that a record of the interview be made available to a member who is brought up on charges based on answers to the questions; here there was no indication respondent requested a copy of the transcript, nor has he asserted that it contained any errors or omissions. Fire Dep't v. Durkin, OATH Index No. 309/90, mem. dec. (Jan. 4, 1991).

EMPLOYEE'S PRIOR DISCIPLINARY RECORD

Over respondent’s objection, ALJ admitted into evidence an OATH report and recommendation involving respondent for impeachment purposes only. Dep’t of Correction v. Frederique, OATH Index Nos. 1361/22 & 1237/22 (Mar. 15, 2023), adopted, Comm’r Dec. (Apr. 12, 2023).

Plea agreement admitted into evidence for impeachment purposes only after respondent testified that he had never submitted a false use of force report. Dep’t of Correction v. Medina, OATH Index No. 1132/20 at 10 (Aug. 11, 2021).

ALJ did not consider evidence of prior discipline as evidence that might indicate a propensity to commit the charged misconduct. Rather, ALJ considered it solely for its impeachment value; here, to rebut the assertion that a witness was scapegoating respondent for non-existent time and leave issues. Health & Hospitals Corp. (Lincoln Medical & Mental Health Ctr.) v. Lopez, OATH Index No. 300/13 (Mar. 12, 2013).

Although the prior disciplinary history of a respondent in an employee disciplinary case is not admissible to show that the respondent had a propensity to commit the charged misconduct, it may be admissible for other purposes. Here, the prior disciplinary history was admissible to rebut the respondent's contention that the complainant against him overreacted to the encounter with the respondent that was the subject of the instant charges. Dep't of Correction v. West, OATH Index No. 1498/96 (July 1, 1996), aff'd, NYC Civ. Serv. Comm'n Item No. CD 97-65-SA (Sept. 11, 1997).

DRUG TEST

Respondent’s general denial of drug use, without more, is insufficient to overcome the positive drug test result reported. Taxi & Limousine Comm’n v. Basilio, OATH Index No. 2060/23 (Apr. 18, 2023), adopted, Comm’r Dec. (May 2, 2023); Taxi & Limousine Comm’n v. Morchadze, OATH Index No. 1117/21 (June 11, 2021), adopted, Comm’r Dec. (June 24, 2021).

Drug test results rejected where the evidence showed that there were material errors in paperwork and testing procedures. Dep’t of Sanitation v. W.J., OATH Index No. 401/12 (Jan. 19, 2012), adopted, Comm’r Dec. (Mar. 15, 2012).

The lack of signatures on one copy of a chain of custody form is not enough to undermine drug test results. Taxi & Limousine Comm’n v. Khan, OATH Index No. 1720/13 (July 26, 2013).

Where the only contested issue was whether agency had authority to order respondent to submit to a drug test, the evidence showed that agency had a lawful basis to order the test and the disciplinary charge was sustained. Dep’t of Sanitation v. Anonymous, OATH Index No. 730/23 (Feb. 24, 2023), adopted in part, rejected in part, Comm’r Dec. (May 30, 2023).

In a taxi license revocation hearing, documentary evidence was found sufficiently reliable, by itself without witness testimony, to establish prima facie case that licensee's urine tested positive for marijuana, which licensee failed to rebut. Documents included an affidavit from a toxicologist, with accompanying chain of custody form, toxicology reports and a confirmation from a medical review officer. Taxi & Limousine Comm'n v. Shakoor, OATH Index No. 860/08 (Nov. 30, 2007).

Administrative law judge ruled that petitioner laid proper foundation for drug test results to be admitted as a business record. Dep't of Parks and Recreation v. Nappa, OATH Index No. 306/00 (Jan. 25, 2000), modified on findings, aff'd on penalty, Comm'r Dec. (Feb. 9, 2000).

TAPE OF SECRETLY RECORDED CONVERSATION

ALJ denied petitioner's application to exclude from evidence a tape recording of petitioner's conversations with security guard, where the tape was made by the security guard without petitioner's knowledge. ALJ held that OATH lacks jurisdiction to exclude the tape pursuant to CPLR section 4506(1), which provides that the motion to suppress be made before a justice of the Supreme Court in the district where the proceeding is pending. Further, since the security guard was a party to the conversation and consented to the taping, the taping was not illegal within the meaning of state law (Penal Law §§ 250.00(2), 250.05). Matter of Kasher v. BLF Realty Holding Corp., OATH Index No. 262/99 (Oct. 26, 2001), adopted in part, rejected in part, Loft Bd. Order No. 2704 (Feb. 7, 2002).

A detective taped a conversation that she had with respondent civil servant without respondent's knowledge. Ethical opinions have generally condemned secret taping by lawyers as unethical, but have recognized an exception for such taping by law enforcement personnel and prosecutors, where one party to the conversation consents to the recording. Respondent's motion to suppress the secretly taped conversation denied. Dep't of Finance v. Diaz, OATH Index No. 611/98 (Dec. 11, 1997).

WWW.MAPQUEST.COM

WWW.Mapquestcom adequately provides one measure of driving distances, reliable enough for administrative proceedings, to show at least in terms of gross estimates, that City employee was not using City van exclusively for City business. Human Resources Admin. v. Allen, OATH Index No. 212/06 (June 28, 2006).

Impeachment of Witnesses

GENERALLY

The scope of permissible cross-examination for purposes of impeachment of a trial witness is a matter that is relegated to the discretion of the administrative law judge. Police Dep't v. Zisel, OATH Index No. 389/97 (Mar. 7, 1997), modified as to penalty, Comm'r Dec. (Sept. 23, 1997).

PRIOR CRIMINAL CONVICTION

A witness's conviction for armed robbery, and the underlying nature of the act that led to that conviction, were permissible subjects of cross-examination for purposes of impeachment of the witness. Police Dep't v. Zisel, OATH Index No. 389/97 (Mar. 7, 1997), modified as to penalty, Comm'r Dec. (Sept. 23, 1997).

PRIOR BAD ACTS

In a disciplinary case alleging sexual harassment of three correction officers, agency sought to offer evidence at trial relating to respondent’s alleged harassment of a fourth correction officer, arguing that such evidence of prior bad acts was admissible. ALJ excluded the testimony and reports related to the fourth officer as evidence of uncharged misconduct that was not probative of the charged pattern of harassment. Dep’t of Correction v. Lewis, OATH Index No. 2739/23 (Nov. 29, 2023).

In imposing a harsher penalty than recommended by the ALJ, the Commissioner considered respondent’s prior bad acts, which were found to be highly relevant when determining an appropriate sanction. The Commissioner noted respondent’s enforcement history with DOB, which included a violation for false statements, an agreement to surrender the ability file applications with DOB to avoid a disciplinary hearing, and another false filing with DOB. Dep’t of Buildings v. Formichella, OATH Index No. 898/21 (June 29, 2021), modified on penalty, Comm’r Dec. (July 15, 2021).

Evidence of prior formal discipline may be used for impeachment at trial when an employee falsely denies she has previously committed similar misconduct. Human Resources Admin. v. Green, OATH Index No. 3347/09 (Nov. 18, 2009).

Imposition of a prior fine on respondent was admissible to rebut respondent's claim that he lacked notice of a rule prohibiting his use of a City car for anything other than official business. Dep't of Housing Preservation and Development v. Thomas, OATH Index No. 1175/99 (June 10, 1999).

As a general rule, petitioner may not use a prior disciplinary disposition that was adverse to respondent to prove respondent guilty of the instant disciplinary charges. Dep't of Correction v. Whitehead, OATH Index No. 1552/97 (Oct. 10, 1997).

Cross-examination of a witness about prior bad acts, for purposes of impeachment of the witness, must be founded upon matters about which cross-examining counsel had a good faith basis to inquire. Police Dep't v. Zisel, OATH Index No. 389/97 (Mar. 7, 1997), modified as to penalty, Comm'r Dec. (Sept. 23, 1997).

Where cross-examination of a witness about an alleged prior bad act by the witness was based upon information improperly obtained by cross-examining counsel from sealed records of an arrest that had not led to a conviction, the cross-examination lacked good faith basis and was not permitted. Police Dep't v. Zisel, OATH Index No. 389/97 (Mar. 7, 1997), modified as to penalty, Comm'r Dec. (Sept. 23, 1997).

The respondents' post-trial submission of a statement that the complaining witness against the respondents had been arrested after trial was improper, because an arrest by itself did not constitute proof of wrongdoing, but further hearings were unnecessary because the law presumes that a judge, unlike a jury, is able to ignore improper evidence. Police Dep't v. Kushner, OATH Index Nos. 447-48/97 (May 1, 1997).

Trial Procedure

In a summary suspension case, trial adjourned after cross-examination of respondent but before respondent had rested. On the continued trial date, respondent’s counsel, over petitioner’s objection, sought to introduce into evidence two documents that were dated after the commencement of trial and recall respondent to finish his testimony. Finding no substantial prejudice, the ALJ admitted the additional documents into evidence and permitted respondent to be recalled for the limited purpose of offering testimony about the documents that were not discussed, including the ones that were newly admitted. Taxi & Limousine Comm’n v. Doss, OATH Index No. 2502/24 (Apr. 15, 2024), adopted, Comm’r Dec. (May 2, 2024).

FAILURE TO FILE AN ANSWER

In a Loft Board initiated enforcement proceeding, petitioner objected to respondent being permitted to introduce any evidence because respondent failed to submit an answer before trial. Based on the lack of any undue prejudice to petitioner and to ensure a complete record, ALJ overruled petitioner’s objection and allowed respondent to present evidence. Loft Bd. v. The West Paramount LLC, OATH Index No. 3094/23, mem. dec. (Jan. 26, 2024).

ATTORNEY-CLIENT PRIVILEGE

By sharing the transcript with a third party, tenant waived any attorney-client privilege and transcript properly admitted into evidence over tenant’s objection. Matter of Roche, OATH Index Nos. 1068/20 & 1069/20 (Apr. 8, 2022), adopted, Loft Bd. Order No. 5148 (July 21, 2022), aff’d, 2023 N.Y. Misc. LEXIS 2903 (Sup. Ct. N.Y. Co. 2023).

In human rights cases, there is no attorney-client privilege between the Commission and a complainant, and, therefore, the Commission does not owe a complainant the same obligations as privately retained counsel. Comm’n on Human Rights v. Taylor Recycling Center, OATH Index No. 447/18, mem. dec. (Dec. 20, 2017).

Email copied to attorney was not privileged. ALJ found there was nothing remotely confidential about respondent’s e-mail because it was actually directed to her supervisors, not to her attorney, clearly venting her frustrations at persistent demands to which she objected. This was not an attempt to solicit legal advice nor could it be interpreted as such. Rather, by copying her attorney, respondent’s apparent intent at the very least, was to signal to her supervisors that someone else was watching, or possibly to intimidate them. Admin. for Children’s Services v. Silverman, OATH Index No. 2614/14 (Sept. 4, 2014), adopted, Comm’r Dec. (Oct. 20, 2014), aff’d sub nom. Silverman v. Carrion, 2015 N.Y. Misc. LEXIS 3944 (Sup. Ct. N.Y. Co. Jul. 6, 2015).

The attorney-client privilege may be asserted by the client or the attorney or someone who stands in their interest. A litigant may not preclude the admission of evidence by claiming it violates his adversary's privilege. Building owner could not assert attorney-client privilege on behalf of deceased tenant. Dep't of Housing Preservation & Development v. 331 West 22nd Street LLC, OATH Index No. 912/06, mem. dec. (Dec. 29, 2006).

BURDEN OF PROOF

Where the petitioner bears the burden of proof by a preponderance of the evidence, as in an employee disciplinary case, and disposition of the case turns on the resolution of factual disputes between the petitioner and the respondent, the petitioner must prove that its account of events was more probable than the respondent's. If the weight of the evidence is with the respondent or if the evidence is equally balanced, the petitioner's case must fail. Dep't of Correction v. Toby C., OATH Index No. 1692/96 (Sept. 19, 1997).

COUNSEL AS WITNESS

The petitioners' request to call the respondent's trial counsel as a witness was denied because, although counsel unquestionably had knowledge of facts relevant to the petition, other witnesses were available to the petitioners whose knowledge was equal to counsel's, if not superior, and because grant of the request would have raised difficult questions concerning not only the disqualification of the respondent's trial counsel but also the disqualification of his entire firm. Matter of Seyfried, OATH Index No. 127/97 (Jan. 3, 1997), rev'd in part and remanded on other grounds, Loft Bd. Order No. 2083 (Mar. 20, 1997).

MANNER OF TRIAL

A pre-trial application to present testimony via speaker telephone was denied where basis of application was uncertainty of whether and when a witness might be called to testify and where documents would be exhibited to the witness. Under this section, applications to present testimony by alternative means are within the discretion of the Administrative Law Judge. Matter of Pelli, OATH Index Nos. 1195-96/01, mem. dec. (Jan. 11, 2001).

Petitioner's application to call a rebuttal witness was denied at the conclusion of a case. A party may not offer rebuttal evidence except to counter new facts affirmatively asserted by its adversary. Pursuant to this rule, the use of rebuttal witnesses is within the discretion of the ALJ. Dep't of Sanitation v. Ambrosino, OATH Index No. 208/01 (May 30, 2001).

It is within the administrative law judge's discretion to permit rebuttal testimony by a witness not called on either petitioner's or respondent's direct case, where respondent's attorney did not object and the testimony did not unduly protract the proceeding. Police Dep't v. Guarino, OATH Index No. 1696/98 (Dec. 17, 1998).

Although the rules of this subchapter do not expressly state that a trial must be conducted in the form of a traditional adversarial evidentiary hearing, that procedure is implicit throughout the rules. Matter of Chin, OATH Index No. 1142/97 (Apr. 18, 1997), adopted, Loft Bd. Order No. 2154 (Oct. 10, 1997).

Where the material facts were undisputed and disposition of the case turned entirely on the application of the law to those undisputed facts, the petitioner's request, consented to by the respondents, to conduct the trial by written submissions was granted. Matter of Chin, OATH Index No. 1142/97 (Apr. 18, 1997), adopted, Loft Bd. Order No. 2154 (Oct. 10, 1997).

ALJ'S DISCRETION TO REGULATE TRIAL SEQUENCE

Administrative law judge granted respondent's motion to dismiss without prejudice where petitioner refused to obey administrative law judge's direction to proceed with other witnesses when its main witness was unavailable to testify. Dep't of Environmental Protection v. Elliott, OATH Index No. 1647/03, mem. dec. (Feb. 17, 2004).

WRITTEN TESTIMONY

Where the respondent spoke with a pronounced accent and could not be understood, and refused to testify through an interpreter, the respondent was permitted to testify, by consent of both sides, by means of written answers to written questions from counsel. Admin. for Children's Services v. Lin, OATH Index No. 1665/97 (Dec. 15, 1997), aff'd, NYC Civ. Serv. Comm'n Item No. CD 00-51-SA (Apr. 10, 2000).

REBUTTAL WITNESSES

Before resting its case, and again at the conclusion of respondent’s case, petitioner requested permission to conduct an inspection of the subject Building and to present a rebuttal case limited to the current conditions of the Building based upon the inspection. The ALJ denied petitioner’s request for discovery as untimely and irrelevant to the claims of harassment against the former lawful occupants of the Building, which had been vacant for the past few years. Dep’t of Housing Preservation & Development v. Joseph, OATH Index No. 1550/24 (June 14, 2024), rejected on other grounds, Comm’r Dec. (July 26, 2024)

Counsel’s request for an adjournment and possible subpoena for an unidentified rebuttal witness was denied as untimely where the issue was apparent, and that issue should have been investigated before trial and not raised for the first time after petitioner had rested its case. Dep’t of Sanitation v. Anonymous, OATH Index No. 730/23 (Feb. 24, 2023), adopted in part, rejected in part, Comm’r Dec. (May 30, 2023).

Request to call rebuttal witness denied. A rebuttal case typically encompasses evidence tending to disprove some fact sought to be proved by the adversary, evidence sustaining the character of witnesses who have been impeached, or corroborating evidence which has been discredited. It is inappropriate for petitioner to offer rebuttal evidence to prove an element of its prima facie case. Health & Hospitals Corp. (Henry J. Carter Specialty Hospital) v. Savain, OATH Index No. 217/15 (Nov. 5, 2014).

Application to call rebuttal witness made during closing argument denied where there was no undue surprise. Health & Hospital Corp. (Segundo Ruiz Belvis Diagnostic and Treatment Center) v. Pena, OATH Index No. 1961/04 (Oct. 14, 2004).

Administrative law judge denied petitioner's application for a continuance to call a rebuttal witness who was an obvious participant in the events in question. Dep't of Sanitation v. Edgar, OATH Index No. 2228/01 (Dec. 3, 2001).

In Loft Board proceeding, denying owner's request to call rebuttal witness was within administrative law judge's discretion where it was made on the last scheduled hearing day, four months after the testimony began, and where the witness was not newly discovered and the owner could have called the witness during his direct case. Matter of DeLong, OATH Index Nos. 266 & 518/99 (Oct. 4, 1999), adopted and remanded, Loft Bd. Order No. 2457 (Dec. 13, 1999), application for reconsideration denied, Loft Bd. Order No. 2500 (Mar. 30, 2000).