Current through Register Vol. 46, No. 12, March 20, 2024
(a)
Bills of particulars.
(1) After all pleadings
have been served, a party may wish the adverse party to supply further details
of the allegations in a pleading to prevent surprise at the hearing and to
limit the scope of the proof. For this purpose, a party may serve written
notice on the adverse party demanding a bill of particulars within 30 days from
the date on which the last pleading was served.
(2) The written demand for a bill of
particulars must state the items concerning which such particulars are desired.
If the party upon whom such demand is served is unwilling to give such
particulars, he or she may, in writing to the supervising administrative law
judge, make a motion to the tribunal to vacate or modify such demand within 20
days after receipt thereof. The motion to vacate or modify should be supported
by papers which specify clearly the objections and the grounds for objection.
If no such motion is made, the bill of particulars demanded shall be served
within 30 days after the demand, unless the administrative law judge designated
by the tribunal shall direct otherwise.
(3) In the event a party fails to furnish a
bill of particulars, the administrative law judge designated by the tribunal
may, upon motion, issue an order precluding the party from giving evidence at
the hearing of items of which particulars have not been delivered. A motion for
such relief shall be made within 30 days of the expiration of the date
specified for compliance with the request.
(4) Where a bill of particulars is regarded
as defective by the party upon whom it is served, the administrative law judge
designated by the tribunal may, upon notice, make an order of preclusion or
direct the service of a further bill. In the absence of special circumstances,
a motion for such relief shall be made within 30 days after the receipt of the
bill claimed to be insufficient.
(5) A preclusion order may provide that it
will be effective unless a proper bill is served within a specified
time.
(b) Admissions.
(1) At any time after service of the answer,
and not later than 20 days before the hearing, a party may serve upon any other
party a written request for admission of the following:
(i) the genuineness of any papers or
documents;
(ii) the correctness or
fairness of representation of any photographs described in and served with the
request; and
(iii) the truth of any
matters of fact set forth in the request.
The request shall pertain to matters as to which the party
requesting the admission reasonably believes there can be no substantial
dispute at the hearing, and which are within the knowledge of the adverse party
or can be ascertained by him or her upon reasonable inquiry. Copies of the
papers, documents or photographs shall be served with the request unless copies
have already been furnished.
(2) The party to whom the request to admit is
directed may choose to respond by serving a statement expressly admitting the
matters in question. However, the party is deemed to admit each of the matters
as to which an admission was properly requested unless, within 20 days after
service of the request, or within such further time as the supervising
administrative law judge may allow, the party to whom the request is directed
serves upon the party requesting the admission, a verified statement:
(i) denying specifically the matters of which
an admission is requested;
(ii)
setting forth in detail the reasons why those matters cannot be truthfully
admitted or denied; or
(iii)
setting forth a claim in detail that the matters of which an admission is
requested cannot be fairly admitted without some material qualification or
explanation, that the matters constitute a trade secret or that such party
would be privileged or disqualified from testifying concerning them. Where the
claim is that the matters cannot be fairly admitted without some material
qualification or explanation, the party must admit the matters with such
qualification or explanation.
(3) Any admission made, or deemed to be made,
by a party pursuant to a request made under this section, is for the purpose of
the pending proceeding only, and does not constitute an admission for any other
purpose, nor may it be used in any other proceeding in the Division of Tax
Appeals. The administrative law judge designated by the tribunal may, at any
time, allow a party to amend or withdraw any admission on such terms as may be
just. Any admission shall be subject to all pertinent objections to
admissibility which may be interposed at the hearing.
(c) Depositions to perpetuate testimony. A
party to a case pending in the Division of Tax Appeals, who desires to
perpetuate his own testimony or that of any other person or to preserve any
document or thing, shall file an application pursuant to this section for an
order of an administrative law judge authorizing such party to take a
deposition for such purpose. Such depositions shall be taken only where there
is a substantial risk that the person or document or thing involved will not be
available at the hearing of the case, and shall relate only to testimony or
document or thing which is not privileged and is material to a matter in
controversy.
(1) The application. Content of
application. The application to take a deposition shall be signed by the party
seeking the deposition or his representative, and shall show the following:
(i) the names and addresses of the persons to
be examined;
(ii) the reasons for
deposing those persons rather than waiting to call them as witnesses at the
hearing;
(iii) the substance of the
testimony which the party expects to elicit from each of those
persons;
(iv) a statement showing
how the proposed testimony or document or thing is material to a matter in
controversy;
(v) a statement
describing any books, papers, documents, or tangible things to be produced at
the deposition by the persons to be examined;
(vi) the time and place proposed for the
deposition;
(vii) the officer
before whom the deposition is to be taken;
(viii) the date on which the petition was
filed with the Division of Tax Appeals;
(ix) any provision desired with respect to
payment of expenses, fees, and charges relating to the deposition (see
paragraph [6] of this subdivision); and
(x) if the applicant proposes to videotape
the deposition, the application shall so state, and shall show the name and
address of the videotape operator and of his employer.
(2) Filing and disposition of application.
The application may be filed with the Division of Tax Appeals at any time after
the petition is filed. The application shall be made to the administrative law
judge assigned to the case or if no administrative law judge has yet been
assigned to the supervising administrative law judge. The applicant shall serve
a copy of the application on each of the other parties to the case, as well as
on such other persons who are to be examined pursuant to the application, and
shall file with the application a certificate showing such service. Such other
parties or persons shall file their objections or other response, with a
certificate of service thereof on the other parties and such other persons,
within 15 days after such service of the application. A hearing on the
application will be held only if directed by the administrative law judge.
Unless the administrative law judge shall determine otherwise for good cause
shown, an application to take a deposition will not be regarded as sufficient
ground for granting an adjournment from a date of hearing theretofore set. If
the administrative law judge approves the taking of a deposition, he will issue
an order which will include in its terms the name of the person to be examined,
the time and place of the deposition, and the officer before whom it is to be
taken. If the deposition is to be videotaped, the administrative law judge's
order will so state.
(3) Use of
stipulation. The parties or their counsel may execute and file a stipulation to
take a deposition by agreement instead of filing an application as hereinabove
provided. Such a stipulation shall be filed with the supervising administrative
law judge in duplicate, and shall contain the same information as is required
in subparagraphs (1)(i), (vi), (vii), (ix), and (x) of this subdivision but
shall not require the approval or an order of the administrative law judge
unless the effect is to delay the hearing of the case. A deposition taken
pursuant to a stipulation shall in all respects conform to the requirements of
this section.
(4) Person before
whom deposition taken. Depositions shall be taken before an officer, other than
a party, or the attorney or employee of a party, authorized to administer oaths
by the laws of the place where the examination is held.
(5) Arrangements. All arrangements necessary
for the taking of the deposition shall be made by the party filing the
application or, in the case of a stipulation, by such other persons as may be
agreed upon by the parties.
(6)
Expenses. The party taking the deposition shall pay all the expenses, fees and
charges of the witness whose deposition is taken by him, any charges of the
officer presiding at or recording the deposition other than for copies of the
deposition, and any expenses involved in providing a place for the deposition.
The party taking the deposition shall pay for the original of the deposition;
and, upon payment of reasonable charges therefor, the officer shall also
furnish a copy of the deposition to any party or the deponent. By stipulation
between the parties, provision may be made for any costs, charges or expenses
relating to the deposition. Except under extraordinary circumstances, an
administrative law judge shall not order a deposition to be held outside of the
State of New York unless the expenses of the Division of Taxation are paid by
the party requesting the deposition.
(7) Use of deposition. At the hearing or in
any other proceeding in the case, any part or all of a deposition, so far as
admissible under the rules of evidence applied as though the witness were then
present and testifying, may be used against any party who was present or
represented at the taking of the deposition or who had reasonable notice
thereof, in accordance with any of the following provisions:
(i) The deposition may be used by any party
for the purpose of contradicting or impeaching the testimony of deponent as a
witness.
(ii) The deposition of a
party may be used by an adverse party for any purpose.
(iii) The deposition may be used for any
purpose if the parties have stipulated to the use of a deposition or if the
administrative law judge finds:
(a) that the
witness is dead; or
(b) that the
witness is at such distance from the place of trial that it is not practicable
for him to attend, unless it appears that the absence of the witness was
procured by the party seeking to use the deposition; or
(c) that the witness is unable to attend or
testify because of age, illness, infirmity, or imprisonment; or
(d) that the party offering the deposition
has been unable to obtain attendance of the witness at the hearing, as to make
it desirable in the interests of justice, to allow the deposition to be used;
or
(e) that such exceptional
circumstances exist, in regard to the absence of the witness at the hearing, as
to make it desirable in the interests of justice, to allow the deposition to be
used.
(iv) If only part
of a deposition is offered in evidence by a party, an adverse party may require
him to introduce any other part which in fairness ought to be considered with
the evidence the party introduced, and any party may introduce any other
parts.
(8) Depositions
on written questions.
(i) A deposition may be
taken on written questions when the parties so stipulate or when the
administrative law judge so orders because the testimony is to be taken outside
New York State.
(ii) The party
seeking the deposition shall serve the written questions upon each party.
Within 10 days thereafter, a party so served may serve written cross questions
upon each party. Within five days thereafter, the original party may serve
written redirect questions upon each party. Within three days after being
served with written redirect questions, a party may serve written
recross-questions upon each party.
(iii) Copies of all written questions served
shall be delivered by the party seeking the deposition to the office designated
in the administrative law judge's order.
(d) Disclosure of evidence prior to a license
revocation hearing. When the Division of Taxation seeks the revocation of a
license or permit, as such terms are used in section 401.4 of the State
Administrative Procedure Act, either party shall, upon demand and at least
seven days prior to the hearing, disclose the evidence that the party intends
to introduce at the hearing, including documentary evidence and the
identification of witnesses. The provisions of this subdivision shall not be
deemed to require the disclosure of information or material otherwise protected
by law from disclosure, including information and material protected because of
privilege, the secrecy provisions of the Tax Law or confidentiality. If, after
such disclosure, a party determines to rely upon other witnesses or
information, the party shall, as soon as practicable, supplement its disclosure
by providing the names of such witnesses or the additional documents.