Current through Register Vol. 46, No. 12, March 20, 2024
(a)
General. A petitioner who wishes to have the proceedings in his or her case
conducted in the small claims unit may so elect at the time of the filing of
the petition, if the amount in controversy meets the criteria contained in
subdivision (b) of this section. The small claims hearing will be an adversary
proceeding conducted by an impartial presiding officer. The presiding officer
will know nothing of the controversy prior to the hearing and shall conduct the
hearing (see subdivision [f] of this section) in a fair manner so as to permit
the parties to offer all relevant evidence to establish their positions. Where
certain points or issues are unclear, the presiding officer may ask questions
of the parties or of witnesses for the purpose of clarifying the
record.
(b) Criteria for small
claims. Controversies which may be heard by the small claims unit are
restricted in amount to $20,000 (not including penalty and interest) for any
12-month period in question. However, with respect to cases arising out of
sales and compensating use taxes pursuant to articles 28 and 29 of the Tax Law,
the amount in controversy may not exceed $40,000 (not including penalty and
interest) for each 12-month period.
(c) Pleadings; applicable sections; notice.
(1) The only pleadings to be served by the
parties are a petition by the petitioner (see section
3000.3
of this Part) and an answer by the office of counsel (see section
3000.4[b]
of this Part).
(2) The parties may
file briefs, additional documents or other material in support of their
pleadings.
(3) The provisions of
section
3000.4(d)
of this Part, regarding amended pleadings, are applicable to this section. The
provisions of sections
3000.5,
3000.6
and
3000.9
of this Part are not applicable to this section.
(4) After the petition and answer have been
served, or the time for serving an answer has expired, the controversy shall be
at issue and the small claims unit shall schedule the controversy for a small
claims hearing. The parties shall be given at least 30 days' notice of the
first hearing date, and at least 10 days' notice of any adjourned or continued
hearing date. A request by any party for a preference in scheduling will be
honored to the extent possible.
(d) Adjournment; default.
(1) At the written request of either party,
made on notice to the other party and received 15 days in advance of the
scheduled hearing date, an adjournment may be granted where good cause is
shown. In the event of an emergency, an adjournment may be granted on less
notice. Upon continued and unwarranted delay of the proceedings by either
party, the presiding officer shall render a default determination against the
dilatory party.
(2) In the event a
party or the party's representative does not appear at a scheduled hearing and
an adjournment has not been granted, the presiding officer shall, on his or her
own motion or on the motion of the other party, render a default determination
against the party failing to appear.
(3) Upon written application to the
supervising administrative law judge, a default determination may be vacated
where the party shows an excuse for the default and a meritorious
case.
(e) Presiding
officer. The small claims hearing shall be conducted by a presiding officer
with the same authorization provided an administrative law judge conducting a
hearing by section
3000.15(c)
of this Part.
(f) Conduct of
hearing.
(1) The small claims hearing shall
be conducted by a presiding officer in such a manner as to do substantial
justice between the parties according to the rules of substantive and
administrative law. The hearing shall be conducted as informally as possible,
consistent with orderly procedure. Any evidence which the presiding officer
considers necessary or desirable for a just and equitable determination will be
received, except that effect shall be given to the rules of privilege
recognized by law. The burden of proof shall be upon the petitioner, except as
otherwise provided by law.
(2) The
provisions contained in section
3000.15(d)(1)-(6)
of this Part, regarding conduct of a hearing, are applicable to a small claims
hearing; however, such applicability is not intended to alter the informal
nature of the small claims hearing.
(3) The small claims hearing will be
stenographically reported or otherwise recorded, but a transcript thereof need
not be made unless the presiding officer otherwise directs. Where a transcript
is made, it shall be available for examination at the offices of the Division
of Tax Appeals in Albany, or may be purchased pursuant to section
3000.19 of this
Part.
(g) Transfer to
administrative law judge. At any time before the conclusion of a small claims
hearing, the petitioner may, by written notice to the secretary, discontinue
such small claims proceeding and request that the hearing on the petition be
transferred to and conducted by an administrative law judge. Such
discontinuance will be without prejudice to any subsequent proceeding before an
administrative law judge.
(h)
Determination.
(1) Issuance of determination.
After the small claims hearing, the presiding officer shall review the evidence
and render a determination which will contain findings of fact and conclusions
of law. The presiding officer will render a determination within three months
after completion of the hearing or the submission of briefs, whichever is
later. The Division of Tax Appeals will serve a copy of the determination on
the petitioner, the petitioner's representative and the office of
counsel.
(2) Effect of
determination. The final determination of the presiding officer shall be
conclusive upon all parties and shall not be subject to review by any other
unit in the Division of Tax Appeals or by the tribunal. However, on the motion
of either party, the tribunal may order a rehearing upon proof or allegation of
misconduct by the presiding officer. Determinations of presiding officers are
not considered precedent, nor are they given any force or effect in other
proceedings in the Division of Tax Appeals.
(i) Assignment of another presiding officer.
Whenever a presiding officer is disqualified or it becomes impractical for him
or her to continue the hearing, another presiding officer may be assigned to
continue with the case, unless it is shown that substantial prejudice to a
party will result therefrom.