Chapter I - Subchapter D

§1-52 Post-trial motions.

Procedure

TO WHOM MADE

ALJ declined to consider untimely post-trial motion. Dep’t of Correction v. Blackett, OATH Index No. 274/21 (July 13, 2021), adopted, Comm’r Dec. (Sept. 23, 2021).

Although noting that under this section, a post report and recommendation motion should be made to the deciding authority, who, in turn, could refer it to the presiding judge for disposition, ALJ agreed to decide such a motion to reopen record to submit new evidence made by petitioner, Health and Hospitals Corp. (Harlem Hospital Center) v. Norwood, OATH Index No. 143/05, mem. dec. (June 20, 2005), where adherence to regular process would have caused further unnecessary delay in the disposition of the disciplinary proceeding, which has remained undecided for six months.

Respondent failed to appear and the disciplinary hearing went forward in the form of an inquest. After the report and recommendation was issued, respondent's counsel moved to vacate the default. Under OATH rule 1-52, the application was required to be made to the agency head. Human Resources Admin. v. Smith, OATH Index No. 1110/03, mem. dec. (May 29, 2003).

Pursuant to this rule, respondents may address challenge to the Comptroller of the administrative law judge's finding of default before the Comptroller renders a final decision in the case. Office of the Comptroller v. IFD Construction Corp., OATH Index No. 901/98 (Jan. 26, 1998).

The respondent's motion for reconsideration of the recommended penalty was denied because, after issuance of the report and recommendation to the agency head, post-trial motions must be made to the agency head pursuant to this section. Dep't of Correction v. Spencer, OATH Index No. 1387/97, letter to counsel (Oct. 27, 1997).

After the administrative law judge rendered the report and recommendation on the record at the conclusion of trial, but before the trial and report and recommendation was transcribed and the transcript was forwarded to the deciding authority, post-trial motions are properly made to the administrative law judge pursuant to this rule, not to the deciding authority. Transit Auth. v. Rodriguez, OATH Index No. 1368/96, mem. dec. (May 20, 1996).

Particular Motions

MOTION TO WITHDRAW AS COUNSEL

Counsel’s withdrawal motion based on respondent’s failure to pay for services denied where counsel represented respondent throughout proceeding, including a three-day trial and all that remained was the submission of post-trial briefs. ALJ denied motion because respondent would be prejudiced by withdrawal at that late stage of the proceeding. Dep’t of Housing Preservation & Development v. Ben Tov, OATH Index No. 2437/19 (June 4, 2020) (letter to counsel).

MOTION TO AMEND PLEADINGS

Post-trial motion to withdraw charges granted. However, ALJ denied motion to conform the charge to the proof by charging respondent with threatening to take action to find out who filed the complaint. Permitting a post-trial amendment under these circumstances would not provide adequate notice to respondent of the particular allegations against him, thus hampering his ability to defend against those charges. Dep’t of Consumer and Worker Protection v. Champion Security Services, Inc., et al., OATH Index No. 2293/21 (Oct. 23, 2023).

Denying motion to amend charges to allege a violation of the Administrative Code different from that charged in the petition because it would irremediably prejudice the non-appearing respondent. Business Integrity Comm’n v. Freire, OATH Index No. 1600/13 (Apr. 10, 2013).

Post-trial motion to amend the pleadings to conform to the proof granted to include violations of the Department’s anti-discrimination regulations existing at the time of the alleged misconduct. Since respondent is required to adhere to all Department regulations and discrimination laws, and he was on notice of the charges, ALJ found that respondent cannot be heard to complain that the petition does not contemplate holding him accountable to applicable rules and laws in effect at the time. Fire Dep’t v. Buttaro, OATH Index No. 2430/14 (Jan. 13, 2015).

MOTIONS TO REOPEN

Motion to reopen the record to submit new evidence after the ALJ issued decision denied because the motion should have been addressed to the deciding authority and the evidence which petitioner sought to introduce was not newly discovered evidence. Nothing in OATH’s Rules permits either party a second opportunity to present evidence which it neglected to present at trial, in order to achieve a more favorable outcome than that recommended by the trial judge. Triborough Bridge & Tunnel Auth. v. Frans-Nanton, OATH Index No. 2624/18, mem. dec. (July 23, 2019).

DEP Commissioner granted motion to reopen the record to consider newly discovered evidence that was not available at the time of trial where the evidence was reasonably expected to alter the outcome of the trial and respondent suffered no prejudice because he had an opportunity to respond. On the basis of that newly discovered evidence, the Commissioner rejected OATH’s decision and terminated respondent’s employment. Dep’t of Environmental Protection v. D’Amore, OATH Index No. 1307/17 (May 4, 2017), rejected, Comm’r Dec. (May 4, 2018).

Post-trial motion to re-open the record to submit additional documentary evidence denied. Loft Bd. v. 331 Greenwich Street, LLC, OATH Index No. 1816/19, mem. dec. (July 23, 2019).

Motion to reopen the record, submitted after trial but before submission of post-trials briefs, granted on the issue of whether the lot line windows in the rear units qualified for coverage under the Multiple Dwelling Law. Matter of 281 North 7th Street Tenants, OATH Index No. 2567/14 (May 13, 2019), adopted in part, rejected in part, Loft Bd. Order No. 4959 (Mar. 19, 2020).

Motion to reopen open the record to submit new evidence was denied where proffered evidence was not likely to change the outcome of the proceeding. Health & Hospitals Corp. (Harlem Hospital Center) v. Norwood, OATH Index No. 143/05, mem. dec. (June 20, 2005). After hearing ALJ found that employee's attendance violations were the result of his disability. Hospital sought to reopen record to submit medical officer's report opining that the employee was currently fit to work. ALJ found that the report that the hospital sought to add to the record did not contradict ALJ's finding that the employee suffered from depression at the time of the attendance violations, where the report was based largely on the fact that the employee's condition was in remission because she was currently in treatment and compliant with her medications.

Respondent's post-hearing motion to reopen to admit into evidence an unsolicited post-hearing affidavit from Step 1A conference leader was granted as material and relevant to an assessment of petitioner's chief witness' credibility. Petitioner's motion to submit a letter containing the preliminary investigatory findings of the State Health Department's investigation into this matter was denied on procedural grounds (it was not served on respondent) as well as on the merits. Health and Hospitals Corp. (Seaview Hospital Rehabilitation Center and Home) v. Rayside, OATH Index No. 972/99, mem. dec. (Apr. 15, 1999), rev'd, HHC Determination (June 15, 1999).

Petitioner's motion to reopen was properly addressed to OATH administrative law judge where judge had previously withdrawn the original report and recommendation to correct an error. Administrative law judge granted the motion to supplement the record with further proof on the issue of liability, noting that although petitioner had not made a compelling showing that the evidence to be offered was unavailable at the original hearing, the motion was unopposed and “the dictates of justice militate against penalizing a party for . . . oversight or error of law in not introducing material evidence during the course of the hearing that was then available.” Office of the Comptroller v. NAB Management Associates, Inc., OATH Index No. 2162/99, mem. dec. (Oct. 8, 1999).

Petitioner's motion to reopen was granted where evidence was unknown or unavailable at trial, appeared to be probative to a trial issue, might reasonably alter the outcome of the case and reopening would not prejudice respondent, who would have the opportunity to test the evidence at trial. Taxi and Limousine Comm'n v. Nawaz, OATH Index No. 1433/97, mem. dec. (Aug. 22, 1997).

Following trial held in the respondent's absence due to the respondent's failure to appear, the respondent's motion to reopen the record to permit the respondent to testify was denied, because, although the respondent established a reasonable excuse for his failure to appear at trial, he was unable to show that his testimony could support a meritorious defense to employee disciplinary charges that were based on criminal convictions. Health and Hospitals Corp. (Elmhurst Hospital Center) v. Stevens, OATH Index No. 447/98, mem. dec. (Nov. 7, 1997).

The petitioner's post-trial motion to reopen the record for admission of two affidavits was denied because the evidence was not unavailable at the time of trial and was not reasonably likely to alter the outcome of the trial, and because granting the motion would unfairly allow the petitioner to review the trial evidence and decide to address a disputed issue further. Bd. of Education v. Roman, OATH Index No. 1555/97 (Sept. 30, 1997).

The petitioner's post-trial motion to reopen the record pursuant to this section made before issuance of the report and recommendation, was granted where the petitioner showed that the evidence was unknown or unavailable at the time of trial, and the evidence was probative and would not prejudice the respondent. Taxi and Limousine Comm'n v. Nawaz, OATH Index No. 1433/97, mem. dec. (Aug. 22, 1997).

Where the respondent failed to appear for trial, but moved after trial to reopen the trial, the motion was denied because the respondent's motion established neither a reasonable excuse for his failure to attend trial nor a meritorious defense to the petition. Transit Auth. v. Rodriguez, OATH Index No. 1368/96, mem. dec. (May 20, 1996).

Post-trial motion by the respondent to re-open the record was denied where the proffered evidence would explain the significance of a circumstance that the trial evidence showed to be possible but highly improbable, such that the proffered evidence was merely speculative and theoretical. Dep't of Correction v. Mack, OATH Index No. 726/95 (May 22, 1995), aff'd, 240 A.D.2d 164 (1st Dep't 1997).

The respondent's post-trial motion to re-open the record to permit the respondent to present witness testimony was denied because the respondent had knowingly chosen at trial to rest its case solely on documentary evidence. Davidson v. Dep't of Correction, OATH Index No. 545/95 (Feb. 7, 1995).

Even absent the requisite showing on a motion to reopen the record, the administrative law judge has the discretion to reopen the record to afford the respondents an opportunity to be heard. Taxi and Limousine Comm'n v. Rolf, OATH Index Nos. 1111-16/93, mem. dec. (Jan. 28, 1994).

The respondent's application to re-open the trial to permit the respondent to testify was denied because none of the medical documentation proffered by the respondent showed that the respondent had been unable to appear for trial, especially in light of the fact that the respondent had appeared for pre-trial conferences and the fact that the respondent had traveled out-of-state during the pendency of the case. Dep't of Correction v. Wilson, OATH Index No. 590/93 (July 30, 1993).

The respondent's application to re-open the trial to permit the respondent to testify was denied because the conclusory assertion by respondent's counsel that the respondent had vital evidence to offer in her own defense did not substitute for an explanation of what that evidence was and how it might alter the outcome of the hearing. Dep't of Correction v. Wilson, OATH Index No. 590/93, mem. dec. (July 30, 1993).

Where the petitioner did not call the respondents during its case in chief or seek to reserve the right to call the respondents if they did not testify on their own behalf, grant of the petitioner's motion after summations to reopen the record to allow the petitioner to call the respondents, or to introduce transcripts of their pre-trial interviews, would be fundamentally unfair. Police Dep't v. Abbate, OATH Index Nos. 228/93, 230/93 (Nov. 2, 1992).

A post-trial motion for an indefinite delay of the issuance of the report and recommendation, in contemplation of the possibility of a motion to reopen the record following further investigation, was denied where movant provided no reason for delay in concluding his investigations, and there was no reason to expect that the evidence being pursued would be favorable to movant or that the evidence would be available in the near future. Dep't of Correction v. Grant, OATH Index No. 798/92 (Aug. 26, 1992).

A post-trial motion pursuant to this section to re-open the record before issuance of the trial decision is directed to the trial judge's discretion, and requires a showing that the movant has evidence that is material to the outcome of the case, that the evidence was not improperly withheld, and that the opposing party will not be prejudiced by grant of the motion. Transit Auth. v. O'Connell, OATH Index No. 1076/91, mem. dec. (Nov. 8, 1991).

MOTIONS TO REARGUE

Motions to reargue made after an ALJ has issued a final decision in a vehicle retention case should rarely be granted. The appropriate avenue for review is an Article 78 proceeding. Police Dep't v. Rodriguez-Toribio, OATH Index No. 302/10, mem. dec. (Oct. 9, 2009).

A motion to reargue, addressed to the discretion of the judge, is designed to afford a party an opportunity to establish that the judge overlooked or misapprehended relevant facts or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to the unsuccessful party to argue once again the very questions previously decided. Dep't of Education v. Brust, OATH Index No. 2280/07, mem. dec. (Nov. 7, 2007).

A motion for reargument, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended relevant facts or misapplied a controlling principle of law. Counsel for petitioner sought to renew its request to call a conference judge as a witness. The original motion was denied under OATH rule 1-31(b), which prohibits parties from calling an administrative law judge as a witness if the subject of the testimony concerns statements made at a settlement conference. In the motion for reargument, counsel argued only that the information presented at the settlement conference was outside the context of settlement negotiations because it led to new charges related to the same incident that was the subject of the conference. The administrative law judge found that counsel had an opportunity to make that argument in the original motion and could not raise it on reargument. Dep't of Buildings v. Goldberg, OATH Index No. 652/03, mem. dec. (Jan. 24, 2003).

MOTIONS TO VACATE DEFAULTS

Post-trial motion to vacate default in Krimstock case granted where respondent failed to appear due to law office failure and offered a meritorious defense. Police Dep’t v. Wellington, OATH Index No. 301/19, mem. dec. (Sept. 12, 2018).

Post-trial motion to vacate default in Krimstock case denied where respondent failed to offer a meritorious defense. Police Dep’t v. Cepeda, OATH Index No. 1022/18, mem. dec. (Jan. 9, 2018).

Motion to vacate default, made after ALJ issued decision, was remanded by Commission. ALJ denied motion where it failed to explain why respondent did not receive the notice of trial, which was mailed to the same address as the ALJ’s decision and the notice of license suspension, both of which respondent acknowledged receiving. The motion also failed to offer any defense to the charges against respondent. Taxi & Limousine Comm’n v. Wilmores-Metivier, OATH Index No. 2289/15, mem. dec. (Oct. 9, 2015).

Motion to vacate default, made after ALJ issued decision, was remanded by Commission. ALJ granted motion where respondent submitted documentation showing that he left the country before any notices were sent by the Commission and did not return until after the default hearing was held and the ALJ issued the decision. The meritorious defense requirement does not require a fully proved defense but only a legally viable, factually substantial defense. Respondent met that requirement by denying that he made inappropriate remarks and stating that the complainant exited the taxi voluntarily. Taxi & Limousine Comm’n v. Khan, OATH Index No. 1792/14, mem. dec. (Aug. 12, 2014).

In a padlock proceeding, the building owner made a post-report and recommendation motion to the Commissioner to vacate his default. Motion is denied as Commissioner found the owner did not show a reasonable excuse for his failure to appear (he merely alleged that he misread the notice) or a meritorious defense to the allegation of illegal commercial use of the premises in a residential zone (owner's claim that he was not engaged in commercial activity), where the proof showed storage of unlicensed motor vehicles (dead storage of motor vehicles) in violation of the Zoning Resolution. Dep't of Buildings v. Owners, Occupants and Mortgagees of 144-11 Lackwood Avenue, OATH Index No. 176/06 (Sept. 27, 2005), aff'd and motion to vacation default denied, Comm'r Dec. (Sept. 29, 2005).

Administrative law judge may hear a motion to vacate default prior to the issuance of the report and recommendation to the agency head for final action. Human Resources Admin. v. Thomas, OATH Index No. 190/05, mem. dec. (Dec. 8, 2004).

Motion to vacate default pursuant to section 1-06(i)(2) of the Loft Board's rules is granted as it is the public policy of New York State that a party should not be prejudiced by the running of a statute of limitations in the period following the disaster at the World Trade Center. Matter of Haley, OATH Index No. 355/02, mem. dec. (Dec. 6, 2001).

In a padlock proceeding, defaulting owner/occupant moved to vacate default. Administrative law judge found that owner/occupant failed to set forth meritorious defense to allegation of illegal commercial use of residentially zoned premises, but she permitted reopening of the record for the limited purpose of allowing the owner/occupant to offer testimony as to whether padlocking would impair residential access to the premises. The commissioner ruled that the administrative law judge erred when she reopened the record for that purpose, finding the access issue was not a proper subject for adjudication before the administrative law judge, based upon her interpretation that the padlock law leaves the choice of the method of enforcement to the Department, post-adjudication. Dep't of Buildings v. Owners, Occupants, Mortgagees of 1410-1414 Vyse Avenue, Bronx, OATH Index No. 699/02, mem. dec. (Mar. 21, 2002), rev'd, Commissioner's Memorandum Decision (Aug. 16, 2002).

Motion to vacate default denied where papers did not provide adequate proof of the reason the respondent failed to attend, and because they did not assert that the respondent had a meritorious defense. Dep't of Correction v. Patrick, OATH Index No. 871/02, mem. dec. (Mar. 13, 2002).

A motion to vacate a default was granted where respondent was incarcerated on the date of the hearing and notice issues (recent notices had been returned) provided a reasonable excuse for non-appearance. Also, respondent established meritorious defenses to allegations of excessive absenteeism, AWOLs, and abusive language. Health and Hospitals Corp. (Jacobi Hospital Center) v. Velez, OATH Index No. 748/01, mem. dec. (May 18, 2001).

Administrative law judge granted motion to vacate default based on pro se respondent's notation on respondent's calendar of the wrong date for the hearing. Dep't of Buildings v. Owners, Occupants and Mortgagees of 1517 Rowland Street, Bronx, OATH Index No. 896/00, mem. dec. (Mar. 13, 2000).

Motion to vacate default was denied where party put forth an insufficient explanation for his failure to appear, i.e., he forgot about the hearing, and he gave no indication of a meritorious defense. Dep't of Correction v. Heyward, OATH Index No. 2041/00 (July 18, 2000).

Motion to vacate default denied for failure to submit a more complete showing in support of the motion, as previously instructed by the administrative law judge. Taxi and Limousine Comm'n v. Mohammad, OATH Index Nos. 173-75/99 (Oct. 6, 1998), modified on penalty, Comm'n Dec. (Feb. 10, 1999).

Respondent, who appeared shortly after the conclusion of the trial, moved to vacate his default, stating that he had been in the building for almost two hours and that he had been misdirected to TLC's offices. Respondent made motion to vacate his default on the record before the administrative law judge and with petitioner's counsel present. Judge granted respondent's motion. Taxi and Limousine Comm'n v. Singh, OATH Index No. 618/00 (Dec. 20, 1999).

After a default determination, respondent was terminated from his position and appealed to the Civil Service Commission. The Commission ruled that no appeal lies from a default, but provided respondent time to file a motion to vacate his default. Administrative law judge denied the motion to vacate, finding respondent did not meet the good cause standard to excuse his default and that the motion to vacate was untimely. Fire Dep't v. Parker, OATH Index No. 2003/99 (July 7, 1999), aff'd, NYC Civ. Serv. Comm'n Item No. CD 99-92-SA (Aug. 31, 1999), reaffirmed, NYC Civ. Serv. Comm'n Item No. CD 99-117-A (Nov. 19, 1999).

The respondent's post-trial motion to vacate his trial default was denied because the respondent had deliberately chosen not to attend trial due to the pendency of his federal civil rights action against the petitioner. Bd. of Education v. Clarke, OATH Index No. 285/95 (Feb. 2, 1995), aff'd, 251 A.D.2d 403 (2d Dep't 1998).

A motion to vacate a trial default was denied where the respondent acknowledged the validity of the petition and his only articulated reason for failing to appear at trial was that he forgot. Conflicts of Interest Bd. v. Sixty-Two City Employees, OATH Index Nos. 593/94 et al. (Apr. 8, 1994).

Although an attorney who had not been retained by any party, and who appeared at trial as an officer of the court lacked standing to move to vacate the respondent's trial default, the administrative law judge vacated the default sua sponte based on information produced by the attorney demonstrating that service of the petition on the respondent had been inadequate under section 1-23(b) of this chapter. Taxi and Limousine Comm'n v. Larch Cab Corp., OATH Index No. 363/94, mem. dec. (Nov. 29, 1993).

A respondent's motion to vacate a trial default, if made after trial but before issuance of a decision, may be granted upon the respondent's showing of an excuse for the default and a meritorious defense to the petition. Human Resources Admin. v. Rice, OATH Index No. 455/93, mem. dec. (Apr. 7, 1993).

A respondent's post-trial motion pursuant to this section to vacate her trial default is addressed to the trial judge's discretion, and requires a showing that the default was excusable, and that the respondent has a legally viable and factually substantial trial defense. Transit Auth. v. O'Connell, OATH Index No. 1076/91, mem. dec. (Nov. 8, 1991).

TO VACATE STIPULATION OF SETTLEMENT

Respondent's motion to vacate and set aside a stipulation of settlement was denied as there was no longer an active case before OATH. The stipulation constituted a final disposition of the padlock proceeding which could not be set aside without petitioner's consent. Dep't of Buildings v. Owners, Occupants and Mortgagees of 1565 Grand Avenue, Bronx, OATH Index No. 1074/98, mem. dec. (July 2, 1998).

Administrative law judge denies respondent's motion to reopen the record after a settlement because OATH lacks the authority to unilaterally rescind such an agreement. Dep't of Health v. Khedr, OATH Index No. 144/99, mem. dec. (Nov. 12, 1998).

MOTION TO DISMISS

At the close of trial on respondent’s application for a certificate of no harassment, respondent moved to dismiss the matter for lack of jurisdiction. According to respondent, petitioner did not establish that the subject Building was properly placed on the pilot program list. However, the ALJ found that the lack of evidence regarding whether the Building was properly placed on the pilot program list did not warrant dismissal. Further, although the list was not made part of the record and neither of petitioner’s witnesses testified that the Building was on the list, the ALJ found that there was sufficient evidence to conclude that the Building was on the pilot program list and required to obtain a certificate of no harassment. 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).

Respondent moved for dismissal post-trial, arguing that petitioner’s dismissal of a prior complaint filed by the complainant against the previous owner of the building precluded the instant proceeding. ALJ denied motion because neither section 1-22 of the Commission’s rules nor the doctrines of res judicata and collateral estoppel precluded the petitioner’s claims. Comm’n on Human Rights v. DiFiore Realty, LLC, OATH Index Nos. 2386/22 & 1732/23 (July 26, 2023).

Petitioner moved to dismiss the disciplinary charges due to inability to produce complaining witnesses for trial. Administrative law judge denied the motion, holding it was totally within petitioner's discretion to unilaterally discontinue the case without need for a ruling. Judge ordered agency to proceed to trial. Police Dep't v. Elcock, OATH Index No. 1890/99 (May 26, 1999).

MOTIONS FOR NEW TRIALS

Motion for mistrial denied where ALJ found that a colleague’s alleged gestures to a witness during her testimony did not affect her statements regarding certain legal issues and did not prejudice respondent, who submitted a lengthy post-trial brief on all issues raised. Dep’t of Buildings v. Ali, OATH Index No. 2751/15 (Mar. 16, 2016), modified on penalty, Comm’r Dec. (Mar. 21, 2016).

The respondent's post-trial motion for a new trial was denied where the respondent's counsel, retained by the respondent after trial at which the respondent appeared pro se, proffered new evidence relevant to penalty, but not to the merits of the petition. However, the motion was construed to include a request, in the alternative, to re-open the record for submission of additional evidence, and that alternative request was granted. Human Resources Admin. v. Brown, OATH Index No. 1557/95 (Dec. 1, 1995).

MOTION TO SUPPLEMENT RECORD

Motion to supplement the record made before issuance of report and recommendation denied where the documents offered would not affect the outcome or the penalty recommendation. Dep't of Sanitation v. Manzi, OATH Index No. 1753/01 (Dec. 4, 2001).