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April 10, 2014

Application to stay or adjourn a disciplinary hearing

Application to stay or adjourn a disciplinary hearing
OATH Index No. 503/14

A New York City firefighter’s application to stay or adjourn disciplinary hearing pending the outcome of a state court proceeding was denied by a New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge 

Judge Faye Lewis explained that the existence of a pending civil action does not generally provide a basis for a stay of an administrative disciplinary proceeding and the issues raised in the disciplinary proceeding were not preclusive of the issues raised in the Notice of Claim filed by respondent in state court.

In addition, the ALJ commented that the firefighter’s application demanding that the employer produce witnesses and document was denied in large part because it was based upon the firefighter’s defense of selective enforcement, which is not a proper defense in an administrative proceeding but can be asserted only upon judicial review of an adverse decision. 

ALJ Lewis also denied the firefigher’s motion to suppress statements made at investigatory interview on the ground that the questioning went beyond the scope of the interview notice. Judge Lewis noted that the firefighter was represented by counsel at the interview and it does not appear that his statements were made involuntarily. Further, noted the ALJ, "if the questioning violated [firefighter's] contract, the remedy would be to file a grievance, not suppression. 

The decision is posted on the Internet at:
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