§3-81: Default by Respondent
§3-82: Request for a New Hearing after a Failure to Appear (Vacating a Default)
§3-83: Request for a new Hearing due to Unauthorized Representation
§3-84: Stipulation in Lieu of Hearing
(a) Failure of a respondent to make a timely response, or appear or proceed as required by the tribunal or hearing officer or these rules shall constitute a default. Upon default, the hearing officer or board shall thereupon render such decision and order in accordance with § 1049-a(d)(1)(d) of the Charter. Orders rendered in consequence of a default shall take effect immediately. Notice of such order shall be sent to respondent.
(b) Where respondent was permitted to admit and pay by mail pursuant to § 3-32, respondent shall also be offered the opportunity to enter a late admission and payment by mail within 30 days of the mailing date of the default order issued against respondent. An appropriate fee may be imposed by the tribunal for the processing of such late admission.
(a) A request by a respondent for a new hearing after the respondent did not appear must be made by application to the executive director or his or her designee. The request must be on a form prescribed by the executive director. The request must contain a current mailing address for the named respondent; it must explain how and when the respondent learned of the violation and it must be sworn or certified to under the penalties of perjury. If the request is not made by the named respondent, the request must explain the relationship between the respondent and the person making the request.
(b) A request for a new hearing, as described in subdivision (a) of this section, that is received within 45 days of the hearing date upon which the respondent did not appear, shall be granted unless such request is found to be made in bad faith. Such findings shall be made at the discretion of the executive director and shall include, but not be limited to, requesting only to admit the charge(s), repeatedly filing the same request or filing the same request in more than one borough at the same time.
(c) A request for a new hearing that is received more than 45 days from the date upon which the respondent did not appear must contain, in addition to the information stated in subdivision (a) of this section, appropriate supporting documentation. Such request may be granted and a hearing conducted only if the respondent establishes that a new hearing was requested within one year of the time the respondent learned of the existence of the violation, and that there is a reasonable basis to believe that the respondent
(1) did not receive the notice of the violation because the respondent was
(A) not properly served with the violation under article three of the civil practice law and rules, article three of the business corporation law, section 1049-a of the New York City Charter or any other provision relating to service of violations returnable to the Environmental Control Board contained in the New York City Administrative Code or the Rules of the City of New York; or
(B) cited generically, for example, as “Owner” or “Agent,” on all copies of the notice of violation sought to be served on the respondent; or
(2) was an improper party when the notice of violation was issued. An improper party is a named respondent who is
(A) an individual who was deceased or legally incompetent on the hearing date upon which the respondent did not appear; or
(B) for a premises related violation, not the owner, agent, lessee, tenant, occupant or person in charge of or in control of the place of occurrence on the date of the offense.
A decision to grant the request for a new hearing under this section shall not be considered a final decision on the issue of whether respondent was properly served or was a proper party on the date of offense.
(d) If a request for a new hearing is granted, the Environmental Control Board shall send a notice to the respondent at the respondent's address stated on the request for a new hearing. If the respondent is deceased or legally incompetent, a notice shall be sent to respondent's representative. Notice shall also be sent to the Petitioner.
(e) No more than one request for a new hearing under this section may be granted with respect to any one notice of violation unless the notice of the new hearing date was not mailed pursuant to subdivision (d) of this section. If the respondent is unable to appear on the hearing date scheduled after a request for a new hearing is granted, respondent may request that the hearing be rescheduled one final time.
(f) Review of a denial of a request for a new hearing after a failure to appear may be sought pursuant to Article 78 of the New York Civil Practice Law and Rules.
In exceptional circumstances and in order to avoid injustice, the Executive Director will have the discretion to grant a request for a new hearing.
Notwithstanding any other provision of these rules, a party may, within three years after a decision and order pursuant to a hearing has become final, move to vacate the decision and order on the grounds that the person who appeared on the party’s behalf at the hearing was not authorized to do so. Upon a determination that the person who appeared was not authorized to represent the party, the executive director or his or her designee may vacate the decision and order and order a new hearing.
In exceptional circumstances and in order to avoid injustice, the executive director will have the discretion to grant a motion to vacate a decision and order after the three year period has lapsed.
(a) At any time prior to the issuance of the hearing officer's recommended decision and order the petitioner may offer the respondent a settlement of the matter by stipulation in lieu of further hearing. The stipulation shall contain an admission of the violation, the further facts stipulated to, if any, the amount of the penalty to be imposed, and the compliance ordered, if any.
(b) If entered into by respondent and filed with the tribunal prior to the first scheduled hearing date, in the manner and form set by the tribunal, the stipulation shall be reviewed by the board. Within a reasonable time after receipt of such stipulation, the board shall cause to be issued a final decision and order incorporating the terms of said stipulation or, if the stipulation is not acceptable to the board, the matter will be rescheduled for further hearing.
(c) If entered into before a hearing officer during the course of a hearing and if the hearing officer approves such stipulation, it shall be incorporated into the hearing officer's recommended decision and order.
(d) Decisions and orders based upon stipulations shall not be appealable.