Current through Register Vol. 46, No. 12, March 20, 2024
The primary purpose of a hearing is to determine and
evaluate unresolved issues of fact or law.
(a) Hearing officer. The commissioner will
appoint a hearing officer or may hire a person from outside the Office of
General Services to hold a particular hearing. Subject to review by the
commissioner, the hearing officer shall have power to: rule upon motions and
requests; administer oaths and affirmations; summon and examine witnesses;
admit or exclude evidence; hear argument on facts or law; do all acts and take
all measures necessary for the maintenance of order and efficient conduct of
the hearing.
(b) Place and time.
The hearing officer may schedule the hearing in Albany or any other time and
place.
(c) Participation. A party
may appear in person or by counsel. If an attorney represents a party, all
papers not required by law to be served personally upon such party shall be
served upon the party's attorney. Any person appearing on behalf of a party in
a representative capacity shall be required to disclose the basis of their
authority to act in such capacity. If the respondent fails to appear at the
hearing, issues on which it has the burden of proof may be resolved against
said party. Any party who is present may elect, subject to the discretion of
the hearing officer, to present all or part of its evidence by affidavit rather
than by oral testimony. The hearing officer may open a default or relieve any
party of the consequences of any default upon good cause shown, for example,
that one has a real interest in the determination and was not given adequate
notice or that one was not able to present certain evidence before for reasons
beyond his or her control. Failure to appear at a hearing shall not be deemed
to be a waiver of the right to be provided with a copy of the findings of fact,
final determination and order or to proceed otherwise in any manner prescribed
by law.
(d) Notice. When the
commissioner schedules a hearing, notice thereof will be mailed to the parties.
The notice will include a statement of the time, place and nature of the
hearing, the legal authority under which the hearing is to be held, the
statutes and rules involved and a short, plain statement of the matters
asserted. The notice will also state what the consequences will be if either
party fails to attend the hearing or submit additional information.
(e) Evidence.
(1) Each witness shall, before testifying, be
sworn or make affirmation.
(2)
Prefiled, written testimony may be presented by any party with permission of
and subject to the discretion of the hearing officer. Such permission shall be
freely granted in the interest of expediting the proceeding. Prefiled testimony
shall be sworn to by the witness and subject to cross-examination.
(3) When necessary, in order to prevent undue
prolongation of the hearing, the hearing officer may limit the number of times
any witness may testify, the repetitious examination or cross-examination of
witnesses, or the amount of corroborative or cumulative testimony.
(4) The rules of evidence shall not be
strictly applied; provided, however, the hearing officer shall exclude
irrelevant, immaterial or unduly repetitious evidence and shall give effect to
the rules of privilege recognized by law.
(5) Every party shall have the right to
present evidence and cross-examine witnesses.
(6) The hearing officer may take official
notice of all facts of which judicial notice could be taken and of other facts
within the specialized knowledge of the Office of General Services. Any party
excepting thereto prior to the conclusion of the hearing, if such fact be taken
notice of during the hearing, or a party who shall make written application
therefor at any time prior to 10 days after service or notice of findings
apprising him of such noticed fact, shall be afforded an opportunity to dispute
the fact.
(7) Any writing or
record, whether in the form of an entry in a book or otherwise, made as a
memorandum or record of any act, transaction, occurrence or event, shall be
admissible in evidence, if the hearing officer finds that it was made in the
regular course of any business and that it was the regular course of such
business to make it, at the time of the act, transaction, occurrence or event,
or within a reasonable time thereafter. All other circumstances of the making
of the memorandum or record, including lack of personal knowledge by the maker,
may be proved to affect its weight, but they shall not affect its
admissibility. The term business includes a business profession, occupation and
calling of every kind.
(8) Where a
public officer is required or authorized, by special provisions of law, to make
a certificate or affidavit to a fact ascertained, or an act performed by him in
the course of his official duty, and to file or deposit in a public office of
the State, the certificate or affidavit so filed or deposited is prima facie
evidence of the facts stated.
(9) A
statement signed by an officer or a qualified agent or representative having
legal custody of specified official records of the United States, or of any
state, county, town, village or city or of any court thereof, or kept in any
public office thereof, that he has made diligent search of the records and has
found no record or entry of a specified nature, is prima facie evidence that
the records contain no such record or entry, provided that the statement is
accompanied by a certificate that legal custody of the specified official
records belongs to such person, which certificate shall be made by a person
described in rule 4540 of the Civil Practice Law and Rules of the State of New
York.
(10) All maps, surveys and
official records affecting real property, which have been on file in the State
in the office of the register of any county, any county clerk, any court of
record or any department of the State or City of New York for more than 10
years, are prima facie evidence of their contents.
(11) Oral argument may be permitted by the
hearing officer within his or her discretion and shall be recorded.
(12) All written statements, charts,
tabulations and similar data offered in evidence the hearing shall, upon a
showing satisfactory to the hearing officer of their authenticity relevancy,
and materiality, be received in evidence and shall constitute a part of the
record.
(13) Where the testimony of
a witness refers to a statute, report or document, the hearing officer shall,
after establishing the identity of such statute, report or document, determine
whether the same shall be produced at the hearing and physically be made a part
of the record or shall be incorporated in the record by reference.
(f) Record. A written transcript
or official record of the hearing will be made and copies will be made
available to the parties at cost as provided by section 302 of the State
Administrative Procedure Act.
(g)
Report. Within 45 days from the date of availability of the transcript of the
hearing, the hearing officer will write a report and make recommendations
dispositive of the problem.
(h)
Findings and conclusions. The hearing officer's report will be submitted to the
commissioner who will make and serve an Order setting forth his findings of
fact and his conclusions pursuant to section 307 of the State Administrative
Procedure Act.