New York City's Office of Trials and Hearings [OATH] Administrative Law Judge [ALJ] Joycelyn McGeachy-Kuls denied the Respondent’s application asking the ALJ to take judicial notice of, or admit as evidence, transcripts from a prior OATH administrative hearing proceeding.
The New York City's Department of Sanitation [Petitioner] had charged Respondent with certain time and leave violations. Although Respondent appeared at the first day of the instant administrative hearing, he failed to appear at subsequent hearings scheduled in the instant proceeding and authorized his counsel to proceed in his absence.
In addition, Respondent failed to call any witnesses or present any evidence in the instant administrative hearing but after the conclusion of the hearing Respondent’s attorney submitted an application seeking to have the ALJ "take judicial notice of the transcripts of testimony taken at an earlier concluded 11-day OATH hearing involving Respondent." Plaintiff's attorney also reported that Respondent was unavailable “despite reasonable efforts to locate him.”
The ALJ denied Respondent's judicial notice request noting that the transcript of the prior proceeding contained contested information and information that was "not common and general knowledge".
In addition, Judge McGeachy-Kuls rejected Plaintiff's attorney's argument that the transcripts were admissible as prior judicial admissions. The ALJ explained that such admissions are offered to establish an inconsistency between a witnesses' testimony in an earlier proceeding and the witnesses' former and current testimony.
The ALJ further noted that Respondent had refused to testify in the instant proceeding and reject Plaintiff's attorney's argument that the transcripts were admissible as prior testimony hearsay because there was no evidence in the record that Respondent was unavailable to testify at the instant hearing.
Click HERE to access the decision and recommendation of Judge McGeachy-Kuls posted on the Internet.