New York Codes, Rules and Regulations
Title 6 - DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Chapter X - DIVISION OF WATER RESOURCES
Subchapter A - GENERAL
Article 1 - MISCELLANEOUS RULES
Part 658 - Hearing Procedures-water Pollution Control
Section 658.11 - Motions and requests

(a) All motions and requests shall be submitted to the commissioner except that those made during the course of a hearing shall be submitted to the hearing officer or may be stated orally and made a part of the record.

(b) The submission of any motion, request, objection or other question to the commissioner prior to the time that the hearing officer's report and findings of fact are submitted to the commissioner shall be at the discretion of the hearing officer.

(c) The hearing officer is authorized to rule upon all motions and requests filed or made prior to the submission of his report and findings of fact to the commissioner. The commissioner will rule upon all motions and requests submitted after that time.

(d) Within eight days after service of any pleading, statement of position, or bill of particulars, a party may move to strike out any matter, allegation or defense therein as sham, scandalous, repetitious, frivolous, redundant, or otherwise prejudicial or insufficient in law or may move to make the pleading more definite and certain or to require that the allegations thereof be separately stated and numbered. The party so moved against may serve an amended pleading within six days after service of a notice of such motion or within such time as the hearing officer shall direct after the resolution of such motion, if any part of the relief moved for be granted and it shall appear to him that, in the interests of substantial justice, service of an amended pleading should be allowed.

(e) If it shall appear to the hearing officer after argument or submission of a motion noticed pursuant to subdivision (d) of section 658.3 hereof, or a motion to strike as sham, frivolous or insufficient in law pursuant to subdivision (d) of this section, in the notice of which motion a summary order has been requested that, upon all the papers and proof submitted, the cause of action or defense alleged by the moving party shall be established sufficiently so that a court would be warranted as a matter of law in directing judgment in favor of the moving party pursuant to rule 3212 of the Civil Practice Law and Rules, the hearing officer will report to the commissioner his recommendation that an order granting total or partial relief be granted. Upon refusal of the commissioner to issue an order determining the proceeding, any remaining triable issues shall be remanded to the hearing officer for trial.