Practice and Procedure before the New York City Office of Administrative Tribunals and Hearings
OATH Index No. 2526/11; OATH Index No. 2047/11
Pre-trial motions to dismiss are disfavored in practice at OATH and have only been granted in the clearest cases of failure by petitioner to state a viable claim. The burden is particularly high in employee disciplinary proceedings where the OATH Administrative Law Judge makes recommended findings that are submitted to the referring agency for final action. ALJ Alessandra F. Zorgniotti denied in part without prejudice an employee’s pre-trial motion to dismiss disciplinary charges as pre-mature where the employee stated in her reply papers that there were issues of fact to be determined at trial. The motion was also denied in part based on a finding that OATH has jurisdiction to hear a disciplinary case referred by the Department of Correction. In addition, the ALJ granted in part and denied in part without prejudice a request for subpoenas for witnesses, some of whom would provide cumulative and irrelevant testimony [see
Dep’t of Correction v. LaSonde (in PDF), OATH Index No. 2526/11].
Similarly, OATH ALJ Faye Lewis denied a pre-trial motion to dismiss disciplinary charges brought against a marine engineer on the ground that the charging agency failed to comply with its own rule requiring a disciplinary complaint to be accompanied by a sworn statement from the complainant. Pleadings are liberally construed in administrative practice. Technical defects in pleading are deemed harmless absent a showing of prejudice, which was not made out here. Further, respondent’s objection was untimely as it was not made until more than a year after he received the charges. ALJ Lewis also denied respondent’s motion to stay his disciplinary hearing indefinitely until a federal suit he filed against the charging agency is decided [see Fire Dep’t v. Domini (in PDF), OATH Index No. 2047/11].