Title 9 Part 465

When used in this Part:

Determinations, notice of hearing, complaints, respondents' answers, and division decisions, findings of fact and orders shall be served by personal service or registered or certified mail, or ordinary, first class mail. However, where a nonresident person or foreign corporation is charged with violating any provision of the law by virtue of the provisions of section 298-a thereof, the complaint and notice of hearing shall be served only by personal service or by registered mail, return receipt requested, directed to such person or corporation at the last known place of residence or business.

The complaint shall be in writing, either on a form promulgated by the division or on any paper suitable for a complaint. The original shall be signed and verified before a notary public or other person duly authorized by law to take acknowledgments. Notarial service shall be furnished without charge by the division.

Nunc pro tunc verifications of a complaint or an answer thereto may be made at any time that the absence of a signed verification is noted.

A complaint shall contain the following:

A complaint shall be filed with the Division of Human Rights at any of its regional offices, or other place designated by the division.

The complaint must be filed within one year from the date of the occurrence of the alleged unlawful discriminatory practice. If the alleged unlawful discriminatory practice is of a continuing nature, the date of its occurrence shall be deemed to be any date subsequent to its inception, up to and including the date of its cessation.

The complaint may be filed by personal delivery, ordinary mail, registered mail or certified mail, addressed to any of the division's offices.

A copy of the complaint shall be promptly served by the division on the respondents and all persons the division deems to be necessary parties, on its own motion or on application of a respondent. A copy of all amendments to the complaint shall be served by the division on all parties to the proceeding, except such amendments to the complaint as are made to more correctly identify a respondent or necessary party previously served. A copy of any complaint filed against any respondent who has previously entered into a conciliation agreement, or as to whom an order of the division or its predecessor, the State Commission for Human Rights, has previously been entered, shall be delivered to the Attorney General, to the Secretary of State if the secretary has issued a license to the respondent, and to such other public officers as the division deems proper.

The division or the complainant shall have the power reasonably and fairly to amend the complaint. No party may be removed by any amendment. After a hearing is commenced before an administrative law judge, any amendment is subject to the discretion of the administrative law judge.

The complainant has the right to amend the complaint in a reasonable manner before the commencement of a hearing.

The regional director, division attorney, or administrative law judge may reasonably amend the complaint.

A pending complaint, or any part thereof, may be withdrawn by the complainant at any time before the service of a notice of hearing. Such a withdrawal shall be in writing and signed by the complainant. Such withdrawal does not preclude the division from filing a complaint on its own motion based on the same facts.

A complaint filed by the Equal Employment Opportunity Commission on or after July 15, 1991, to comply with the requirements of 42 USC section 2000e-5(c), or on or after June 16, 1992, to comply with the requirements of 42 USC section 12117(a) or 29 USC section 633(b) shall not constitute a filing within the meaning of Human Rights Law section 297.9, and shall not require a dismissal from the division where complainant seeks to pursue the above remedies in court.

After the filing of a complaint, the regional director of the division office in which it was filed, or to which it has been transferred, shall make, with the assistance of staff, a prompt and fair investigation of the allegations of the complaint.

Such investigation may be made by field visit, written or oral inquiry, conference, or any other method or combination thereof deemed suitable in the discretion of the regional director or the director of regional affairs.

The terms of a conciliation agreement shall include provisions requiring the respondent to refrain from the commission of unlawful discriminatory practices in the future, and may contain such further provisions as may be agreed upon by the regional director and the respondent.

The division shall not disclose what has transpired in the course of its endeavors at conciliation and persuasion, except to the parties and their representatives.

Prior to the issuance of the notice of hearing, a settlement calendar may be held wherein each case where probable cause has been found may be considered for settlement.

IMPORTANT NOTICE

The first session of the public hearing described in this notice shall be devoted exclusively to the settlement of the matter.

Therefore, counsel or the representatives of the parties must attend this hearing with the full authority to settle the matter.

No adjournment of this pre-hearing before the hearing date shall be granted except for good cause shown in writing delivered to the presiding administrative law judge who, in his or her discretion, may grant or deny the request.

The request for adjournment shall be filed with the presiding administrative law judge and served on general counsel of the division and any other opposing counsel no less than five (5) days before the date set for the pre-hearing.

If the presiding administrative law judge grants the adjournment, the conference will be rescheduled to the next available pre-hearing conference date in that county.

Ex parte requests for adjournment will be automatically denied.

Every request for an adjournment shall be deemed a waiver by the requesting party of any present or future objection alleging that the State Division of Human Rights has failed to process the complaint in a timely manner.

Please be advised that the parties to the complaint may, at any time prior to the taking of testimony at a public hearing, mutually agree to submit the complaint for binding arbitration before the American Arbitration Association.

A notice of hearing together with the complaint as amended shall be served as provided in section 297.4(a) of the New York State Human Rights Law.

At least two business days prior to the hearing, the respondent shall, and any necessary party may, file a written answer to the complaint, sworn to subject to the penalties of perjury.

The answer must be filed with the division in triplicate in the office of the general counsel of the division, and a copy served upon each attorney of record and upon each party not represented by an attorney.

A party shall have the power reasonably and fairly to amend its answer, subject to the discretion of the administrative law judge.

If the respondent fails to answer the complaint, the administrative law judge may enter the default, and the hearing shall proceed on the evidence in support of the complaint. Upon application, the administrative law judge or chief administrative law judge may, for good cause shown, open a default in answering, upon equitable terms and conditions, including the taking of an oral answer.

Hearings shall be held as provided in section 297.4(a) of the New York State Human Rights Law.

Two or more complaints may be scheduled simultaneously before the same administrative law judge, who may consolidate or sever them.

The hearing shall continue upon the previous record.

If a party files a timely and sufficient affidavit of personal bias or disqualification of an administrative law judge, the matter shall be referred to the chief administrative law judge, who shall permit other parties to submit affidavits, and then shall determine the matter upon such affidavits. If an affidavit is submitted to disqualify the chief administrative law judge, the matter shall be referred to the executive deputy commissioner for determination. Any such determination shall be made part of the record in the case.

The administrative law judge, in conducting the hearing, should utilize any procedures consonant with due process to elicit evidence concerning the ultimate issues. The following guidelines shall govern.

in camera.

in camera .

The administrative law judge shall have the following powers to control the presentation of the evidence and the conduct of the hearing:

The regional investigation file, which is also available to the parties, will be made available to the administrative law judge at least 30 days prior to the preliminary conference pursuant to subdivision (h) of this section.

The first session of the hearing, for which the parties will be given notice pursuant to section 465.11 of this Part, shall begin with a preliminary conference before the administrative law judge. The conduct of this preliminary conference shall be as follows:

The record of the hearing may be taken by shorthand reporting, tape recording, or other reasonable method. The method chosen shall be within the discretion and direction of the chief administrative law judge. At all hearing sessions, the administrative law judge shall take formal notes listing all matters made part of the record, which shall be attached as an appendix to the recommended order.

Hearings shall be open to the public, expect in extraordinary circumstances. Oral testimony shall not be taken in camera.

The administrative law judge may exclude from the hearing room or from further participation in the proceeding any person who engages in improper conduct at the hearing, except a party to the proceeding, an attorney of record, or a witness engaged in testifying. The hearing shall be conducted with dignity and respect.

Where desirable, the administrative law judge in consultation with counsel may provide for the use of devices such as deletion of names and coding in order to protect personal privacy or information, including trade secrets which, if made public, would result in unfair advantage to competitors. In extraordinary circumstances, the administrative law judge shall have the discretion to close the hearing to the public to protect the rights of the parties.

No person shall communicate with the administrative law judge subsequent to the commencement of a hearing on any matter relating to the case, other than a status inquiry, unless a copy of such communication is sent to all parties to the proceeding. If such a communication is made in violation of this rule, a copy of the communication, or a written summary if the communication was oral, shall be sent to all the parties by the administrative law judge.

Whenever any deaf person is a party to a hearing, or a witness therein, the division shall appoint a qualified interpreter who is certified by a recognized national or New York State credentialing authority to interpret the proceedings to, and the testimony of, such deaf person.

The administrative law judge may permit the parties or their attorneys, the division attorney and interveners and interested organizations to argue orally within such time limits as the administrative law judge may determine. Trial briefs will only be permitted where specifically requested by the administrative law judge, on particular points of law. Any such brief shall be filed in duplicate with the administrative law judge, with proof of service upon all counsel in the proceeding and parties appearing without counsel. Full written arguments will be permitted in the form of objections as provided for in section 465.17(c) of this Part.

The division may postpone a scheduled hearing, or continue a hearing from day-to-day or adjourn it to a later date or to a different place, by announcement thereof at the hearing or by appropriate notice to all parties. No adjournment of a scheduled hearing shall be granted except upon affidavit of actual engagement before a higher tribunal or for good cause shown in writing. The chief administrative law judge may review and change the adjourned dates.

The chief administrative law judge shall establish time frames for writing of recommended orders by the administrative law judge who conducts the hearing. The administrative law judge shall adhere strictly to such time frames.

If any party designates an attorney-at-law to represent the party before the division, such attorney shall file a notice of appearance with the division. An attorney-at-law who appears for a party to the proceeding at any stage therein, including an application for an injunction, shall be deemed to remain that party's attorney throughout the proceeding until:

Copies of all written communications or notices in the matter directed to the party shall be sent either to the attorney alone or to both the party and the attorney.

Service of any document or paper (except subpoenas and subpoenas duces tecum) in the matter on such attorney shall be deemed service on the party represented; provided, however, that the division may, in addition, serve any document or paper on the party such attorney represents.

When an attorney has ceased to represent a complainant, the division shall have no obligation to notify said attorney of any award of money to a complainant by way of conciliation, settlement, order after hearing or otherwise, and may consent to or order the delivery and payment of the award by the respondent to the complainant. When a complainant is represented by an attorney at the time of an award, the terms of payment thereof shall provide that said award shall be paid in the form of a check or draft made payable to the complainant but delivered to the complainant's attorney.

Subpoenas duces tecum, issued by the designated division officers and employees, may be made returnable at any stage of any investigation or proceeding pending before the division. Documents, books and records required for a public hearing before an administrative law judge may be subpoenaed and made returnable prior to such hearing at such time and place stated in the subpoena by the issuing officer, or made returnable before the designated division depository officer. Witness subpoenas shall be returnable only at public hearing.

Subpoenas and subpoenas duces tecum may be issued by the designated division officers and employees upon the application of a party or a party's attorney.

An attorney appearing for a party may issue subpoenas or subpoenas duces tecum returnable at a hearing before an administrative law judge. Subpoenas for the production of documents, books and records required for a public hearing before an administrative law judge may be made returnable prior to such hearing before the duly designated division depository officer, who shall hold the material produced pursuant to the subpoena for the administrative law judge.

An officer or employee of the division's office of general counsel may be designated as a depository officer, who shall receive and hold documents, books and records subpoenaed prior to a public hearing or produced at said hearing and required for use during the period between the commencement of a public hearing and any adjourned date thereof. Such records shall be made available for inspection and copying during the ordinary business hours of the division, by appointment, and in accordance with section 2305(c) of the Civil Practice Law and Rules of New York State.

A subpoena duces tecum directed to a public body or agency does not require approval of a court.

Where a subpoena or subpoena duces tecum is issued at the instance of a party, or by an attorney, the cost of service and witness and mileage fees and the burden of service shall be borne by such party or attorney. Such witness and mileage fees shall be the same as are paid at trials in the New York State Supreme Court.

At any time after a determination of probable cause, the parties may stipulate to settle the case subject to the approval of the commissioner. Such stipulation shall either be in writing, signed by the parties or their attorneys, or be placed on the record at a public hearing.

An order issued after hearing shall set forth the findings of fact of the commissioner, the determination and, in discretion of the commissioner, an opinion containing the reasons for the decision.

An order after hearing shall conform to the requirements set forth in section 297.4(c) of the New York State Human Rights Law, and may include a directive for the payment of interest on any money awarded.

Copies of orders signed by the commissioner shall be sent to the complainant, respondent and all parties, including interveners and their attorneys. A copy of the order shall be delivered in all cases to the Attorney General, the Secretary of State if he has issued a license to the respondent, and such other public officers as the division deems proper.

Copies of all orders rendered after a hearing shall be filed at the administrative offices of the division, and at the office where the complaint was filed. Such orders shall be open to public inspection during regular office hours of the division.

Not later than one year from the date of a conciliation agreement, an order after hearing or an order after stipulation, and at any other times in its discretion, the division shall investigate whether the respondent is complying with the terms of such agreement or order.

Upon a finding of noncompliance, the division shall take appropriate action to assure compliance.

If the division, in the course of a compliance investigation or otherwise, receives credible information indicating noncompliance with a cease and desist order issued against a respondent nonresident individual or respondent foreign corporation by virtue of section 298-a of the New York State Human Rights Law, the division shall serve upon such respondent a notice summarizing such information and directing such respondent to appear at a hearing and show cause why such respondent should not be prohibited from transacting any business within this State. The notice shall set forth the time and place of the hearing. Such respondent may appear at the hearing, in person or by counsel, and cross-examine witnesses and submit oral testimony and other evidence. Subdivisions (c) through (l) of section 465.12 of this Part and sections 465.13 through 465.15 of this Part shall apply in such cases.

If, after a hearing held as provided in subdivision (a) of this section, the commissioner finds that such respondent has failed to comply with the cease and desist order, the division, acting by the commissioner, shall issue an order prohibiting such respondent from transacting any business within this State. Such prohibition order shall be subject to judicial review in the manner prescribed by article 78 of the Civil Practice Law and Rules of the State of New York.

Any prohibition order issued pursuant to subdivision (b) of this section may be vacated by the division upon application made under section 465.20 of this Part, upon satisfactory proof of compliance with the underlying cease and desist order.

Any information indicating that a respondent has violated a prohibition order issued pursuant to subdivision (b) of this section shall be referred to the district attorney of the county where the violation occurred. Subdivision 3 of section 298-a of the New York State Human Rights Law makes such violation a class A misdemeanor.

Where a complaint has been dismissed after investigation for lack of probable cause or lack of jurisdiction, the time to appeal to court has expired, and less than one year has passed since the dismissal, reopening may be predicated only upon:

Where a complaint has been withdrawn, it may not be reopened except upon an allegation that the withdrawal was induced by fraud, coercion, or error, contained in a written application for such reopening made to the division within one year after the issuance by the division of a notice that said complaint has been withdrawn, or within one year from the effective date hereof. Nothing herein contained shall be construed to limit the complainant's right to refile a withdrawn complaint no later than one year after the alleged discriminatory practice.

The rules of the division shall be available to the public at all offices of the division.

This Part shall be liberally construed to accomplish the purposes of the New York State Human Rights Law and the policies of the division.