Subchapter B: Adjudications – Pre-Hearing Procedure

Subchapter B

§3-31: Notice of Violation
§3-32: Admissions and Payments by Mail or Other Remote Methodl
§3-33: Pre-hearing Reschedules
§3-34: Adjudication by Mail or Other Remote Methods
§3-35: Motions to Intervene
§3-36: Consolidation
§3-37: Discovery
§3-38: Subpoenas
§3-39: Pre-hearing Notification of Schedule for Registered Representatives and Attorneys.





§3-31: Notice of Violation


(a) Form: All adjudicative hearings instituted by a petitioner shall be commenced by the issuance of a notice of violation on a form approved by the board.
(b) Contents: The notice of violation shall contain the name and address, when known, of a respondent; a brief description of the alleged violation, its date and place of occurrence; and reference to the provision of law or rule charged. The notice of violation shall contain information advising the respondent of the maximum penalty and of the time in which the respondent may admit or deny the violation charged. The notice of violation shall also contain a warning to the respondent that failure to plead in the manner and time stated in the notice may result in a default decision and order being entered against the respondent. On or after November 25, 2008, any notice of violation filed pursuant to this section that refers to section 1404 of the Charter as the legal authority for jurisdiction under which a hearing is to be held shall be deemed to refer to § 1049-a of the Charter.
(c) Service: A notice of violation issued by a petitioner may be served on a respondent in accordance with the methods set out in §1049-a(d)(2) of the New York City Charter which render the tribunal's decision and order automatically docketable in Civil Court, or alternatively as provided by the statute, rule or other provision of law governing the violation alleged. Lawful service in a manner other than that provided for in §1049-a(d)(2) shall give the tribunal jurisdiction to hold a hearing or render a decision and order whether after hearing or in default thereof, but such decision and order shall not be entered in Civil Court or any other place provided for entry of civil judgments without court proceedings.

For the purpose of service of notices of violation pursuant to New York City Charter 1049-a(d)(2)(a)(i) and (ii), the term “reasonable attempt” as used in New York City Charter 1049-a(d)(2)(b) may be satisfied by a single attempt to effectuate service upon the respondent or another person upon whom service may be made as provided for by article three of the civil practice law and rules or article three of the business corporation law.

(d) Filing: The original or a copy of the notice of violation, together with the proof(s) of service, shall be filed with the tribunal prior to the first scheduled hearing date. Failure to timely file all proofs of service shall not divest the tribunal of jurisdiction to proceed with a hearing or to issue a default order.
(e) Where a petitioner withdraws a notice of violation, even if it has been adjudicated, is open or has been decided by the tribunal, the petitioner must promptly notify the tribunal and the respondent in writing.

§3-32: Admissions and Payments by Mail or Other Remote Method


Where the notice of violation states that a mailable penalty schedule exists for the cited violation, a respondent may admit to the violation charged and pay the penalty by mail or other remote method acceptable to the tribunal in the manner and time directed by the notice of violation. Payment in full is deemed an admission of liability and no further hearings or appeal will be allowed.

§3-33: Pre-hearing Reschedules


Upon application by respondent, ex-parte, to the executive director and for good cause shown, the executive director may postpone the hearing date set in the notice of violation for a brief period of time and reschedule the hearing. The executive director may deny any further requests for a reschedule and require respondent to appear and make such motion for adjournment to a hearing officer at the scheduled hearing.

§3-34: Adjudication by Mail or Other Remote Methods


(a) The executive director may designate certain classes of alleged violations or defenses as appropriate for adjudication by mail, or other remote methods and prescribe procedures for such adjudication. Where respondent is offered the option of contesting the violation or presenting a defense by mail or other remote methods, respondent may move for such adjudication by application addressed to the tribunal. Such application shall set forth all facts and arguments relevant to the case relied on by the respondent. The application may be supported by affidavits or other documentary evidence.
(b) Upon receipt by the tribunal of an application for adjudication by mail or other remote method, the matter shall be assigned to a hearing officer who shall review the record. The hearing officer may request further evidence to be submitted by respondent, may direct respondent to serve a copy of the application on petitioner, or may render a recommended decision and order based on the evidence in the record. The hearing officer may also deny the application for adjudication by mail or other remote method and direct respondent to appear for a hearing in person.

§3-35: Motions to Intervene


(a) As of Right.
(1) A person may intervene as of right in an adjudicatory or enforcement proceeding if such person may be directly and adversely affected by an order of the board. An order imposing a monetary penalty only shall not be deemed an order directly or adversely affecting any person other than respondent.
(2) A written application by any person to intervene as of right shall be filed with the tribunal and served upon each party to the proceeding not less than 5 days before the hearing. Such application shall set forth in detail the reasons the applicant seeks to intervene. Upon being served with an application for intervention, any party wishing to respond thereto may do so within 3 days after receipt of the application. Such response, accompanied by any supporting documents, must be filed with the tribunal and served upon the applicant and all other parties. When such written application is made by any person, the matter shall be assigned to a hearing officer for disposition.
(3) An intervenor as of right shall have all the rights of an original party, except that the hearing officer may provide that such intervenor shall be bound by orders previously entered or evidence previously received, and that the intervenor shall not raise issues or seek to add parties which might have been raised or added more properly at an earlier stage of the proceeding.
(b) Discretionary Intervention.
When written application by any person for discretionary intervention is filed with the tribunal prior to the date set for hearing in any adjudicatory proceeding, the matter shall be assigned to a hearing officer. The hearing officer, subject to the necessity of conducting an orderly and expeditious hearing, may permit such person to intervene if good cause is shown therefore or if the applicant is in a position to assist in the proof or defense of the proceeding. An intervenor permitted to intervene at the discretion of the hearing officer shall be assigned such role in the proceeding as the hearing officer in his or her discretion may direct, taking into consideration the avoidance of unfairness to the parties and the intervenor and the avoidance of undue delay. An oral application to intervene by any person may be made at the commencement of the hearing and shall be considered by the hearing officer assigned to the case. A discretionary intervenor is not a party to the proceeding and has no standing to appeal the hearing officer's recommended decision and order.

§3-36: Consolidation


In the interest of convenient, expeditious and complete determination of cases involving the same or similar issues or the same parties, the hearing officer may consolidate two or more notices of violation for adjudication at one hearing.

§3-37: Discovery


(a) Upon written request received by the opposing party at least five business days prior to the scheduled hearing date, any party is entitled to receive from the opposing party a list of the names of witnesses who may be called and copies of documents intended to be submitted into evidence.
(b) Pre-hearing discovery shall be limited to the matters enumerated above. All other applications or motions for discovery, including depositions on oral examination, shall be made to a hearing officer at the commencement of the hearing and the hearing officer may order such further discovery as is deemed appropriate in his or her discretion.
(c) Upon the failure of any party to properly respond to a lawful discovery order or request or such party's wrongful refusal to answer questions or produce documents, the hearing officer may take whatever action he or she deems appropriate including but not limited to preclusion of evidence or witnesses, or striking the pleadings or defenses of such party. It shall not be necessary for a party to have been subpoenaed to appear or produce documents at any properly ordered discovery proceeding for such sanctions to be applicable.

§3-38: Subpoenas


(a) Upon application to the tribunal by a party, the tribunal shall issue a subpoena for attendance at deposition or hearing, which may include a command to produce specified books, documents or tangible things which are reasonably necessary to a resolution of the issues, subject to the limitations on discovery prescribed by these rules.
(b) All subpoenas shall be issued on forms approved by the board and shall be signed by a hearing officer. A hearing officer, on motion timely made before the return date of the subpoena, or on the hearing officer's own motion, may quash or modify the subpoena if it is unreasonable or was wrongfully issued.

§3-39: Pre-hearing Notification of Schedule for Registered Representatives and Attorneys.


(a) No registered representative or attorney may appear on fifteen (15) or more notices of violation on a given hearing date unless the registered representative or attorney emails or faxes in advance a written list of all scheduled cases to the tribunal office in the borough where the cases are scheduled to be heard. This list must be sent no later than noon, two (2) business days before the scheduled hearing date.
(b) Cases may only be added to this list on the day of the hearing at the discretion of the managing attorney or his/her designee.