New York Codes, Rules and Regulations
Title 12 - DEPARTMENT OF LABOR
Chapter XI - Division Of Safety And Health
Subchapter A - Public Employees' Safety And Health
Part 803 - Variance Regulations
Section 803.25 - Motion for summary decision

Universal Citation: 12 NY Comp Codes Rules and Regs ยง 803.25

Current through Register Vol. 46, No. 39, September 25, 2024

(a) Any party may, at least 15 days before the date fixed for any hearing under section 803.14 of this Part, move with or without supporting affidavits for a summary decision on all or any part of the proceeding. Any other party may, within 7 days after service of the motion, serve opposing affidavits or countermove for summary decision. The hearing officer may set the matter for argument and call for the submission of briefs, and other materials or render a decision on the papers submitted.

(b) The filing of any documents under subdivision (a) of this section shall be with the hearing officer, and copies of any such documents shall be served in accordance with section 803.15 of this Part.

(c) The hearing officer may grant such motion if the pleadings, affidavits, material obtained by discovery or otherwise obtained, or matters officially noticed show that there is not genuine issue as to any material fact and that a party is entitled to summary decision. The hearing officer may deny such motion whenever the moving party denies access to information by means of discovery to a party opposing the motion.

(d) Affidavits shall set forth such facts as would be admissible in evidence in an administrative hearing and shall show affirmatively that the affiant is competent to testify to the matters stated therein. When a motion for summary decision is made and supported as provided in this section, a party opposing the motion may not rest upon the mere allegations or denials of his pleading; his response must set forth specific facts showing that there is a genuine issue of fact for the hearing.

(e) Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the hearing examiner may deny the motion for summary decision or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.

(f) The denial of all or any part of a motion for summary decision by the hearing officer shall not be subject to interlocutory appeal to the commissioner unless the hearing officer certifies in writing:

(1) that the ruling involves an important question of law or policy as to which there is substantial ground for difference of opinion; and

(2) that an immediate appeal from the ruling may materially advance the ultimate termination of the proceeding.

The allowance of such an interlocutory appeal shall not stay the proceeding before the hearing officer unless the commissioner shall so order.

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