9 NYCRR Part 581 - Executive Department

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9 NYCRR 581-1.1 - Applicability

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

(a)Any violation of the Adirondack Park Agency Act, the New York State Freshwater Wetlands Act within the Adirondack Park, the New York State Wild, Scenic and Recreational River Systems Act on private lands within the Adirondack Park, the agency's regulations, the terms or conditions of any permit or order issued by the agency, or of the terms or conditions of any agreement administratively resolving a violation, shall be grounds for enforcement in accordance with the provisions of this Part.

(b)Any agency proposal to modify the terms or conditions of any permit or variance issued by the agency shall be undertaken in accordance with the provisions of this Part.

9 NYCRR 581-1.2 - Definition of terms

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Jun 30, 2025

The following terms shall have the stated meanings when used in Part 581:

(a)Act means the Adirondack Park Agency Act, Executive Law, article 27.

(b)Agency means the Adirondack Park Agency as defined in Executive Law, section 803.

(c)ECL means the New York State Environmental Conservation Law.

(d)Executive director means the executive director of the agency or his designee.

(e)FWA means the Freshwater Wetlands Act, ECL article 24.

(f)Hearing officer means an officer, employee or other designee of the agency who presides over administrative enforcement hearings and related proceedings.

(g)Order means any order issued by the agency or its designated agent.

(h)Permit means any permit or variance issued by the agency or its designated agent.

(i)Permit holder means any person or State agency that has been issued an agency permit or variance pursuant to the Act, the FWA, or the Rivers Act or any person or State agency that has assumed the benefits and obligations of an agency permit or variance pursuant to law, regulation, permit condition or property ownership.

(j)Person means an individual, corporation, partnership, association, trustee, municipality or other legal entity but shall not include the State or any State agency except for matters considered pursuant to the FWA and the Rivers Act.

(k)Respondent means any person receiving a notice of apparent violation, a notice of hearing or a notice of intent, a cease and desist order, or any other order pursuant to this Part, or who resolves a violation by agreement with the agency.

(l)SAPA means the State Administrative Procedure Act.

(m)Rivers Act means the Wild, Scenic & Recreational River Systems Act, ECL article 15, title 27.

9 NYCRR 581-2.1 - Authority and duties of enforcement committee

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

(a)An enforcement committee consisting of three or more agency members to be appointed by the agency's chairman will act for the agency in enforcement actions undertaken by and on behalf of the agency. The chairman of the agency may sit as a voting member of the enforcement committee at any time.

(b)The enforcement committee shall provide guidance to the executive director in his actions relating to alleged violations and make recommendations to the agency regarding enforcement policies, operation of the enforcement program, and rules and regulations related to enforcement.

(c)Any alleged violation or any other particular matter may be considered by the enforcement committee upon:

(1)a referral by the executive director; or

(2)a request by a majority of enforcement committee members.

(d)The enforcement committee may determine whether a violation has occurred and decide on an appropriate disposition of any enforcement action it considers.

9 NYCRR 581-2.2 - Authority and duties of the agency with respect to enforcement

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

(a)Any alleged violation may be considered by the agency upon:

(1)a referral by the enforcement committee prior to a determination by the enforcement committee; or

(2)a request by a majority of the agency members made prior to consideration of the alleged violation by the enforcement committee.

(b)The agency may determine whether a violation has occurred and decide on an appropriate disposition of any enforcement action it considers.

(c)The agency may hold hearings and issue determinations and orders as provided for in Subparts 581-3 and 581-4 of this Part.

9 NYCRR 581-2.3 - Authority and duties of executive director

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

(a)The executive director shall have authority and responsibility to take the following actions under this Part:

(1)oversee agency staff investigations of alleged violations;

(2)resolve violations by agreement with landowners and other persons responsible for such violations;

(3)issue cease-and-desist orders;

(4)request immediate remediation of any land on which there has been or is continuing any illegal construction, land use or development or subdivision of land;

(5)serve notices of apparent violation and refer enforcement cases to the enforcement committee and advise enforcement committee members and/or agency members of the status of investigations and of recommendations for their disposition;

(6)commence administrative enforcement hearings to enforce the FWA;

(7)serve notices of intent for purposes of modifying, suspending or revoking agency permits; and

(8)refer alleged violations to the Attorney General in accordance with section 581-2.8 of this Subpart.

(b)The executive director shall prepare periodic reports for the agency on the status of open enforcement cases, administrative resolutions, and litigation related to enforcement.

(c)The executive director may delegate any or all authority provided for in this Subpart to other agency staff with the advice and consent of the enforcement committee.

9 NYCRR 581-2.4 - Cessation of illegal development or subdivision; immediate abatement and remediation

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

(a)In the case of an apparent violation involving ongoing construction, land disturbance or subdivision of land, the landowner and all lessees, contractors, builders, and other agents may be ordered in writing to cease and desist such activities until the apparent violation is resolved according to the provisions of this Part or by a court. When there is a danger that the elements may cause irreparable damage to a partially completed use or structure, the order or a modification thereto may allow measures to prevent such damage provided that such authorization shall not substitute for any required permit or variance.

(b)In the case of an apparent violation involving ongoing or threatened damage to the resources of the Adirondack Park, the landowner and all lessees, contractors, builders, and other agents may be requested in writing to take immediate measures to redress such ongoing or threatened damage.

9 NYCRR 581-2.5 - Administrative resolution of violations

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

(a)Violations may be resolved administratively by agreement(s) entered into with any person(s) responsible for a violation.

(b)An administrative resolution may include a compromise of penalties, injunctive relief, and such other measures or actions as the agency, the enforcement committee, or the executive director, deems necessary or appropriate.

9 NYCRR 581-2.6 - Enforcement proceedings

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

(a)The executive director may initiate an enforcement proceeding to be held by the enforcement committee for a determination whether a violation has occurred and a decision on an appropriate disposition of an enforcement action. Whenever this section refers to the enforcement committee, it shall mean the agency where the agency considers an alleged violation pursuant to section 581-2.2 of this Subpart.

(b)To initiate enforcement proceedings, the executive director shall serve a notice of apparent violation upon the respondent reciting the material facts and documentary evidence, and the provisions of law upon which the notice is based. The notice may also include a recommendation for resolution of the enforcement action. The notice shall include:

(1)the date and place the enforcement committee will consider the matter;

(2)a statement that any written response to the notice shall be signed by the respondent or his attorney and served upon the executive director within 30 days of the date of the notice; and

(3)a statement that the respondent may appear before the enforcement committee either in person or by counsel, and be heard concerning any disputed matter of fact or law or with respect to the nature of any proposed resolution. The notice shall state that a respondent may authorize the person other than an attorney to speak on his behalf so long as the respondent appears in person before the enforcement committee.

(c)Within 30 days of the date of the notice of apparent violation, the respondent may serve a written response upon the executive director signed by the respondent or his attorney, including all material facts and documentary evidence, and any affirmative defenses. If the respondent fails to respond to the notice of apparent violation within such 30-day period, the enforcement committee may accept as correct the allegations of fact and law set forth in the notice of apparent violation.

(d)Following the enforcement proceeding, the enforcement committee shall consider the alleged violation in executive session, and may make a determination as to whether a violation has occurred. The enforcement committee may also decide on an appropriate disposition of the enforcement action, or may decide to adjourn the matter for additional investigation or consideration or for any other reason it deems appropriate.

(e)A copy of any determination made by the enforcement committee shall be served upon the respondent within 15 days of the date of the enforcement committee determination.

(f)Service of the notice of apparent violation and the enforcement committee's determination shall be by certified mail or other means designed to provide actual notice. Service of any other papers connected with an enforcement proceeding may be by ordinary mail or hand-delivery.

9 NYCRR 581-2.7 - Agency review of permit or variance applications involving violations

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

(a)Where the executive director determines that there is reasonable cause to believe that a violation has occurred, an application involving an unresolved violation on the proposed project site shall not be processed and the time periods of section 809 of the Act shall not run until the alleged violation is resolved in accordance with the provisions of this Part or by a court. The executive director shall notify the project sponsor of such determination and action in writing.

(b)Local government officials of the municipality which is the location of the proposed project site and alleged violation, and the Adirondack Park Local Government Review Board, shall be notified of the receipt of an application which involves such alleged violation.

9 NYCRR 581-2.8 - Referrals to the Attorney General

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

An alleged violation of the statutes and regulations administered by the agency, of any permit or order issued by the agency or its designee, of any agreement administratively resolving a violation, or a refusal to comply with a request for access to property or information involving a violation or to redress ongoing damage to the natural resources of the Adirondack Park, may be referred to the Attorney General pursuant to section 63 of the Executive Law and section 813 of the Act or the relevant provisions of the ECL as follows:

(a)by the executive director with the advice and consent of the chairperson(s) of the enforcement committee; or

(b)by the enforcement committee or the agency.

9 NYCRR 581-3.1 - Grounds for permit modification, suspension, revocation

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

The agency may propose to modify, suspend or revoke an agency permit on any of the grounds set forth below:

(a)the filing of materially false or inaccurate statements in the permit application or supporting papers or false or misleading testimony in any agency hearing on the application;

(b)activities exceeding the scope of the project or varying the project as described in the permit; or

(c)noncompliance with the terms and conditions of an agency permit or order, or noncompliance with any provision of the Act, ECL, or agency regulations, related to the permitted activity.

9 NYCRR 581-3.2 - Commencement of proceedings to modify, suspend, or revoke an agency permit

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

(a)The executive director, on his own initiative or at the direction of the enforcement committee or the agency, may commence proceedings to modify, suspend or revoke an agency permit pursuant to this Subpart.

(b)To commence such proceedings, the executive director shall serve a notice of intent to modify, suspend or revoke an agency permit on the permit holder reciting the grounds for the agency's action, and identifying the material facts, documentary evidence, the provisions of law upon which the notice is based, and the requested agency actions. The notice may identify alternative actions to be considered and decided by the agency. The notice shall include:

(1)the date and place the agency will consider the matter;

(2)a statement that any written response to the notice of intent shall be signed by the permit holder or his attorney and served upon the executive director within 30 days of the date of the notice;

(3)a statement offering the permit holder an opportunity for a hearing in accordance with the hearing procedures set forth under Subpart 581-4 of this Part; and

(4)a statement that the permit holder may appear at the hearing either in person or by counsel, and be heard concerning any disputed matter of fact or law or with respect to the nature of any proposed resolution. The notice shall state that a permit holder may authorize a person other than an attorney to speak on his behalf so long as the permit holder appears in person at the hearing.

9 NYCRR 581-3.3 - Permit holder response to notice of intent

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

Within 30 days of the date of the notice of intent, the permit holder may serve a written response upon the executive director signed by the permit holder or his attorney giving reasons why the permit should not be modified, suspended or revoked, including the material facts, documentary evidence, and the provisions of law upon which such statement is based, and if desired, requesting a hearing. If the permit holder fails to respond to the notice of intent within such 30-day period, the agency may accept as correct the allegations of fact and law set forth in the notice of intent.

9 NYCRR 581-3.4 - Agency action

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

(a)If the permit holder requests a hearing, the executive director shall appoint a hearing officer and a hearing shall be held and an agency determination shall be made in accordance with the hearing procedures set forth under Subpart 581-4 of this Part.

(b)If the permit holder does not request a hearing, the enforcement committee shall consider the notice of intent and any written response from the permit holder and shall make a recommendation to the agency for consideration.

(c)In reaching its determination, the agency shall either:

(1)rescind the notice of intent; or

(2)issue a final determination and order.

(d)Any agency determination made pursuant to this subdivision shall be served upon the permit holder within 30 days of the date on which the agency considers this matter.

(e)When the agency proposes to modify, suspend or revoke a permit, the terms and conditions of the original permit will remain in effect until the agency has issued a final determination under this section or pursuant to section 581-4.16 of this Part, provided that nothing in this Subpart shall preclude or affect the agency's authority to commence other proceedings or to refer a violation to the Attorney General for legal action.

9 NYCRR 581-3.5 - Service of paper

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

Service of the notice of intent and the agency's determination upon the permit holder shall be by certified mail or other means designed to provide actual notice. Service of any other papers connected with a proposal to modify, suspend or revoke a permit under this Subpart may be by ordinary mail or hand-delivery.

9 NYCRR 581-4.1 - Applicability

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

This Subpart is applicable to agency hearings arising out of the following circumstances:

(a)all administrative enforcement hearings brought to enforce the Freshwater Wetlands Act; and

(b)all hearings pursuant to Subpart 581-3 of this Part where the agency has initiated proceedings to modify, suspend, or revoke an agency permit. The notice of intent and permit holder response provided by sections 581-3.2 and 581-3.3 of this Part shall satisfy the requirements of sections 581-4.3 and 581-4.4 of this Subpart in such hearings.

9 NYCRR 581-4.2 - Definitions

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Jun 30, 2025

Whenever used in this Subpart, unless otherwise expressly stated, the following terms will have the meanings indicated in this section:

(a)Discovery means disclosure of facts, titles, documents, or other materials which are within the knowledge or possession of a party and which are necessary to the person requesting the discovery as a part of the requester's case.

(b)Evidence means the sworn testimony of a witness, physical objects, documents, records or photographs representative of facts which have been admitted into the record by a hearing officer.

(c)Motion means a request for a ruling.

(d)Party means the executive director, the respondent(s), permit holder(s) and any other person granted intervenor status.

(e)Relevant means tending to support or refute the existence of any fact that is of consequence or material to the agency's determination.

(f)Stipulation means an agreement between two or more parties to a hearing, and entered into the hearing record, concerning one or more issues of fact or law which are the subject of the hearing.

9 NYCRR 581-4.3 - Commencement of an administrative enforcement hearing

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

(a)The executive director may commence an administrative enforcement hearing to enforce the FWA by service upon the respondent of a notice of hearing and a complaint. The notice of hearing shall include the following:

(1)a statement that a hearing date will be set by the hearing officer;

(2)a statement that any answer shall be signed by the respondent or his attorney, and that any affirmative defenses, including exemptions to permit requirements, will be waived unless raised in the answer; and that the failure to answer or to appear at the hearing will result in a default and a waiver of respondent's right to a hearing; and

(3)a statement that the respondent may appear at the hearing either in person or by counsel, and be heard concerning any disputed matter of fact or law or with respect to the nature of any proposed resolution. The notice should state that a respondent may authorize a person other than an attorney to speak on his behalf so long as the respondent appears in person at the hearing.

(b)The complaint shall recite the grounds for the agency's action, and shall identify the material facts, documentary evidence, and the provisions of law upon which the complaint is based, and the requested agency relief.

9 NYCRR 581-4.4 - Answer

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

(a)Within 30 days of the date of the notice of hearing and complaint, the respondent shall serve upon the executive director an answer signed by the respondent or his attorney.

(b)The respondent's answer shall specify which allegations he admits, which allegations he denies, and which allegations he has insufficient information upon which to form an opinion regarding the allegation, and must also explicitly assert any affirmative defenses together with a statement of the facts which constitute the grounds of each affirmative defense asserted. Whenever the complaint alleges that the respondent conducted an activity without a required permit, a defense based upon the inapplicability of the permit requirement to the activity shall constitute an affirmative defense. Affirmative defenses not pled in the answer may not be raised in the hearing unless allowed by the hearing officer. The hearing officer shall only allow such defense upon the filing of a satisfactory explanation as to why the defense was not pled in the answer and a showing that such affirmative defense is likely to be meritorious.

9 NYCRR 581-4.5 - Parties

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

(a)Parties to the hearing shall include the executive director and the respondent(s) and/or permit holder(s).

(b)At any time after the institution of a proceeding and prior to close of the hearing, the hearing officer may permit a person to intervene as a party where it is demonstrated that there is a reasonable likelihood that the petitioner's private rights would be substantially affected by the result sought by the executive director or within the authority of the agency to determine and that those rights cannot be adequately represented by the executive director, the respondent and/or permit holder, or any other party to the proceeding. In addition, the hearing officer may permit a person to intervene as a party with amicus status upon a finding that the petitioner has identified a legal or policy issue that should be addressed in the hearing and in the final determination of the agency and that the petitioner has a sufficient interest in such issue and through expertise, special knowledge or unique perspective may contribute materially to the record on such issue.

(c)A party has the right to participate at the hearing in person or through an attorney licensed in the State of New York to present relevant evidence, to cross-examine witnesses, to present argument on issues of law and fact, and to exercise any other right conferred on the parties by this Subpart or SAPA. A party with amicus status has the right to file a brief at the conclusion of the hearing.

9 NYCRR 581-4.6 - Service of paper

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

Service of the notice of hearing and complaint and the agency's determination upon the respondent shall be by certified mail or other means designed to provide actual notice. Service of any other papers connected with hearings under this Subpart may be by ordinary mail or hand-delivery.

9 NYCRR 581-4.7 - Appointment of hearing officer

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

(a)At the request of any party, the executive director shall appoint a hearing officer to preside over a hearing brought pursuant to this Subpart.

(b)The appointment of a hearing officer shall be in writing and served on the parties to the hearing. The appointment letter shall specify:

(1)whether a hearing report is requested by the agency; and

(2)the means by which testimony at the hearing shall be recorded verbatim.

(c)Not later than 10 days after the date of the appointment letter, any party may file with the chairman of the agency a motion, together with a supporting affidavit, in support of a request that the hearing officer be removed. Any decision by the chairman of the agency regarding the removal of a hearing officer shall be final.

9 NYCRR 581-4.8 - Powers of the hearing officer

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

The hearing officer shall conduct the hearing in a fair and impartial manner. The hearing officer shall have the power to take the following actions:

(a)rule upon procedural motions and requests;

(b)set the time and the place of the hearing and any recesses and adjournments;

(c)administer oaths and affirmations;

(d)regulate discovery as reasonable and necessary to promote full disclosure and administrative efficiency;

(e)issue subpoenas requiring the attendance and testimony of witnesses and the production of records and other evidence upon request of a party not represented by counsel admitted to practice in New York State;

(f)upon the request of a party, quash and modify subpoenas except that in the case of a non-party witness the hearing officer my quash or modify a subpoena regardless of whether or not a party has so requested;

(g)summon and examine witnesses;

(h)admit or exclude evidence;

(i)take official notice of all facts of which judicial notice could be taken and of facts within the specialized knowledge of the agency;

(j)hear oral argument on facts and law so long as it is recorded;

(k)direct the convening of any conference required for administrative efficiency;

(l)preclude irrelevant or unduly repetitious, tangential or speculative testimony or argument;

(m)limit the length of cross-examination, length of briefs and similar matters;

(n)do all acts and take all measures necessary for the maintenance of order and efficient conduct of the hearing;

(o)act as custodian of hearing exhibits until such time as the hearing record is forwarded to the agency;

(p)prepare a hearing report if requested; and

(q)exercise any other authority available to presiding officers under article 3 of SAPA.

9 NYCRR 581-4.9 - Motions

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

(a)Motions made at any time shall be part of the hearing record. Every motion must clearly state the requested relief and the facts upon which it is based and may present legal argument in support of the motion.

(b)Prior to, and after the hearing but prior to the close of the hearing record, any motions shall be submitted in writing to the hearing officer.

(c)During the hearing, motions may be made orally, except where otherwise directed by the hearing officer. All parties may respond orally to such motions, except where otherwise directed by the hearing officer.

(d)The hearing officer shall rule promptly on any motion and must rule on all pending motions prior to the close of the hearing record. Any motions not ruled upon at that time will be deemed denied.

(e)Any motions made after the close of the hearing record shall be in writing and submitted to the agency's chairman for a ruling by the agency.

(1)Any such motion shall be served on all parties no more than 10 days after the close of the hearing record.

(2)The agency shall rule on any such motion prior to making its determination with regard to the hearing.

(f)Copies of all written motions shall be served on all parties. All parties have at least 10 days after a written motion is served to serve a response.

9 NYCRR 581-4.10 - Discovery

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

(a)There shall be full and complete discovery within the guidelines of this section.

(b)A party, upon receipt of notice to produce documents and materials from any other party, shall furnish all such requested items relevant to the proceeding within 10 days of the date of such notice, or within such other period as a hearing officer shall direct.

(c)Depositions and written interrogatories will only be allowed with permission of the hearing officer upon a finding that they are likely to expedite the proceeding. Bills of particulars are not permitted.

(d)A party who is served with a notice to produce documents and materials may move for a ruling from the hearing officer denying or modifying such notice within 10 days of the date of the notice and shall specify his objections thereto. Such ruling may also be made by the hearing officer on his own initiative. Any such ruling shall be designed to avoid unnecessary delay of the hearing or to prevent unreasonable annoyance, expense, embarrassment, or prejudice to any party.

(e)If a party fails to comply with a discovery demand without having made a timely objection, the proponent of the discovery demand may apply to the hearing officer to compel disclosure. If a party fails to comply with the ruling of a hearing officer compelling discovery, the agency may accept as correct the allegations of fact made by the opposing party as to which the undisclosed material would be relevant as evidence.

(f)Subpoenas may be issued consistent with article 23 of the Civil Practice Law and Rules as follows:

(1)any attorney of record in a hearing has power to issue subpoenas as provided by that article;

(2)a party not represented by an attorney admitted to practice in New York may request the hearing officer to issue a subpoena, stating the items or witnesses needed by the party to present its case;

(3)service of a subpoena is the responsibility of its sponsor; and

(4)all subpoenas shall give notice that the hearing officer may quash or modify the subpoena pursuant to the standards set forth under that article.

9 NYCRR 581-4.11 - Evidence

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

(a)The rules of evidence shall not be strictly applied; provided, however, the hearing officer will exclude irrelevant, immaterial or unduly repetitious evidence and must give effect to the rules of privilege or confidentiality recognized by law.

(b)All parties shall have a fair opportunity to present their evidence, to cross-examine witnesses, and to make opening and closing statements.

(c)Each witness shall, before testifying, be sworn or make affirmation. Pre-filed written testimony may be presented by any party with permission of and subject to the discretion of the hearing officer or may be required upon motion of any party by written directive of the hearing officer. Such permission shall be freely granted in the interest of expediting the proceeding. Pre-filed testimony shall be sworn to by the witness and subject to cross-examination.

9 NYCRR 581-4.12 - Ex parte rule

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

(a)Except as provided below, a hearing officer must not communicate, directly or through a representative, with any person in connection with any issue that relates in any way to the merits of the hearing without providing notice and an opportunity for all parties to participate.

(b)A hearing officer may consult on questions of law or procedure with any agency staff provided such staff have not been engaged in investigative or prosecutorial functions in connection with the adjudicatory hearing under consideration or a factually related adjudicatory hearing.

(c)A hearing officer may communicate with any person on ministerial matters, such a scheduling or the location of a hearing.

(d)Parties and their attorneys must not communicate with the hearing officer or the agency, or any person advising or consulting or eligible to advise or consult with the hearing officer or agency, in connection with any issue without providing proper notice to all other parties.

9 NYCRR 581-4.13 - Stipulations and administrative resolution of violations during hearing process

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

(a)At any time prior to the close of the hearing record, the parties may enter into a stipulation to resolve an issue of fact or law pending in a hearing brought under this Subpart.

(b)At any time prior to the submission of the hearing record to the agency pursuant to section 581-4.14(h) of this Subpart, the executive director may resolve a violation by agreement with the respondent on specified terms and conditions.

9 NYCRR 581-4.14 - Conduct of the hearing

Source version current through Sep 15, 2021

Later State Register activity may affect this section.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

(a)The hearing officer shall set the time, date and place of a hearing brought pursuant to this Subpart at the request of the executive director.

(b)The hearing officer shall notify the parties in writing of the time and place for the hearing.

( c) After a date has been set for the hearing, adjournments may be arranged by agreement of the parties or will otherwise be granted only for good cause and with the permission of the hearing officer. Except for adjournments by agreement, a request for an adjournment prior to commencement of the hearing must be in writing and filed with the hearing officer and all parties. Adjournments must specify the time, day and place when the hearing will resume or specify the time and day on which the parties will advise the hearing officer of the status of the case.

(d)The hearing officer will determine the sequence in which the issues will be tried and otherwise regulate the conduct of the hearing in order to achieve an efficient and fair disposition of the matters at issue.

(e)If requested by the parties or the hearing officer at the concluding session of the hearing, the parties shall have the opportunity to submit briefs on a schedule set by the hearing officer.

(f)At the concluding session of the hearing, the hearing officer shall set a date for the closure of the hearing record.

(g)At any time before the close of the hearing record, the hearing officer may reopen the record and/or the hearing to consider significant new evidence.

(h)The hearing officer shall submit the hearing record to the agency within 15 days of the close of the hearing record, unless a hearing report is requested, in which case the hearing officer shall submit the hearing record to the agency within 45 days of the close of the record.

(i)After the close of the hearing record but prior to the issuance of any final determination, the agency may direct the reopening of the record and/or the hearing to consider significant new evidence upon a showing that the new evidence could affect the agency's determination and that there is a justifiable excuse why the evidence was not produced prior to the close of the hearing record.

9 NYCRR 581-4.15 - Record of the hearing

Source version current through Sep 15, 2021

Later State Register activity may affect this section.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

(a)The hearing record shall include the following, as applicable: the notice of hearing and complaint; notice of intent and response; any other pleadings; the appointment letter; motions and requests filed, and rulings thereon; the transcript of testimony taken at the hearing; pre-filed testimony; exhibits admitted into evidence; any stipulations between parties; a statement of matters officially noticed except matters so obvious that a statement of them would serve no useful purpose; and briefs.

(b)The hearing record shall also include a hearing report, if requested by the agency. Unless otherwise specified, the hearing report shall include proposed findings of fact, conclusions of law and recommendations on all issues to be decided by the agency.

9 NYCRR 581-4.16 - Final agency determination

Source version current through Sep 15, 2021

Later State Register activity may affect this section.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Sep 15, 2021

(a)Upon the agency's receipt of a hearing record pursuant to section 581-4.14(h) of this Subpart, the enforcement committee shall review the record and make a recommendation to the agency for consideration.

(b)In reaching its determination, the agency shall review the record and committee recommendations and make a final determination. The agency's final determination will be embodied in an order which contains findings of fact and conclusions of law and may provide for:

(1)a finding of liability or dismissal of the charges;

(2)an assessment of penalties or other sanctions consistent with the applicable provisions of the Act or the ECL;

(3)injunctive relief including abatement or restoration activities, and provision for financial security to assure completion of such activities;

(4)modification, suspension or revocation of an agency permit;

(5)a combination of any or all of the foregoing; and

(6)any determination deemed appropriate under the circumstances and consistent with applicable provisions of the Act, the ECL and/or the rules and regulations of the agency;

(c)The final determination of the agency shall be issued on or before 60 days after the receipt by the agency of a hearing record;

(d)A copy of the final determination and order shall be served on the parties.

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