Adam Leitman Bailey, PC120 Broadway, 17th Floor

New York, NY 10271Tel: 212-825-0365Fax: 212-825-0999

Adam Leitman Bailey, Esq.Colin E. Kaufman, Esq.

Pete Reid, Esq.

The Process Inspection

Drafting of Violation

Service of Violation

Filing of Affidavit of Service

Initial Hearing Date

Hearing or Settlement

Decision of Administrative Law Judge

Administrative Appeal

Article 78 Proceeding in Supreme Court

Resources – NYC Public Access Portalhttp://24.97.137.100/nyc/

Resources – BISWEBhttp://a810-bisweb.nyc.gov/bisweb/bsqpm01.jsp

Resources – ACRIShttp://a836-acris.nyc.gov/Scripts/Coverpage.dll/index

Resources – Corporations http://appsext8.dos.state.ny.us/corp_public/corpsearch.entity_search_entry

Resources – Center for City Lawhttp://www.nyls.edu/centers/harlan_scholar_centers/center_for_new_york_city_law/cityadmin_library

Resources – NYCRRhttp://www.dos.state.ny.us/info/nycrr.html

Resources – DoB Reference Materialshttp://www.nyc.gov/html/dob/html/reference/bulletin_ppn_memo.shtml

Resources - Penalties –Title 48, RCNY, Ch.3, Subchapter G

Resources – Always Google Everyonehttp://www.google.com/For example: NY County DA Press Release 10/1/09

Notice of Violation (NoV)

Attacking the Violation Inspection –

Did the Inspector do what he said he did?

Did he do it right?

Get the inspector’s identity

Find out if there is someone with him/her

Watch what is going on in the lot and record it

See what equipment they are using – ask

Attacking the Violation Drafting of Violation

Go block by block

RESPONDENT – is the entity named in the NoV either the owner or operator? (Not “Edison Garage” but, for example, “Edison NY Parking LLC”)

NOTICE ALSO SENT TO – Was there a mailing? (not always required – see regs) If so, where did it go?

DATE AND TIME OF THE OFFENSE – Is it there? Is it reasonable? Check against date and time of service.

Attacking the Violation (2) Drafting of Violation

CODE/RULE/SECTION –

Does the section apply (e.g. a section which by its terms applies to an open lot does not apply to an enclosed garage)?

Does it fit with the description given?

Place of Occurrence – Must be accurate.

Details of Violation –

Must be observation, not a restatement of the section.

Must be specific.

Must exactly track the Code/Rule/Section (e.g. 120 spaces is not equal to 120 vehicles).

Attacking the Violation (3) Drafting of Violation

Complainant –

Must be present

Last Name, First Initial, shield no.

Signed

Attacking the Violation (4) Service of the Violation

For DCA Violations – effective

if left with a person of suitable age and discretion OR

mailed

For ECB Violations – effective

If left with a person of suitable age and discretion OR

IF no such person available by

Conspicuous posting AND

Mailing

Attacking the Violation (5) Filing of Affidavit of Service

Affidavits of service are required to be filed – sometimes they are not. If other than personal service, contest on the filing.

The Hearing Process

Check in (Get there at 8:30)

Wait, wait, wait

Settlement Officer

Department will make offer of settlement

Wait, wait, wait

Into the hearing room

Hearing before an ALJ

Decision reserved (usually)

Decision mailed to Respondent

Adjournments A first adjournment is always granted (but the rules

sometimes change)

If you are seeking a first adjournment, with no discovery needed and no inspector needed, note on your sign-in sheet that you want an adjournment so you don’t spend the morning waiting

Second adjournments are now hard to come by and you need a reason

ECB adjourned dates are 2-4 months; DCA adjourned dates are 1-4 weeks

Adjournments are not the same as rescheduling requests

In the Hearing Room The proceeding is conducted by an Administrative

Law Judge (ALJ)

The ALJ is always addressed as “Your Honor” or “Judge”

ALJ’s are lawyers who are either full-time ALJ’s or per diem’s

The Department is represented by

At ECB – an Assistant Corporation Counsel

At DCA – the Issuing Inspector or a Supervising Inspector

Our Approach to the Hearing Professional

Cordial but not deferential

“Good morning Your Honor…Counsel”

Fully prepared

Don’t fumble

Have your proof prepared and ready

Don’t retreat from a considered position

Conduct of the Hearing - intro The Judge is nominally in charge

You, as the advocate, should be molding the proceedings to accomplish your end

Federal Judge John Keenan: “you should be the smartest, best prepared, person in the courtroom and no one else should know it”

Proceedings are recorded

Judge will place a “header” on the record This is Administrative Law Judge Margaret Jones. Today is

October 3, 2009. We are conducting proceeding in the matter of Notice of Violation 12345678. Both sides, please note your appearance on the record

Conduct of the Hearing –“Appearances” Noting your appearance = saying who you are and

who you represent

My name is Colin Kaufman of Adam Leitman Bailey, PC. I represent the Respondent Edison NY Parking LLC (or whichever entity it may be)

Then the Assistant Corporation Counsel will enter his or her appearance.

You will be asked to sign in on an electronic pad

Legal objections to the Notice of Violation/Summons Raise them before the start of evidence (usually)

Make your statement clear and explicit

Back up your statement with a citation to the appropriate statute or rule (usually Administrative Code or the RCNY (Rules of the City of New York)) Have copies of the sections for you, the judge and

opposing counsel

Much better if in writing

Ask that the written objection be marked as an Exhibit

DON’T BACK OFF

Demands for Disclosure Discovery demands should be

in writing Specific (not “everything relating to the charge”) Supported by an RCNY section (generally: for ECB 48 RCNY §3-37; DEP

15 RCNY § 31-37; ) BEFORE HEARING:

On written demand five or more days before hearing can demand names of witnesses and copies of documents (ECB: 48 RCNY § 3-37(a)DEP: 15 RCNY §31-37(a))

AFTER COMMENCEMENT All other applications or motions for discovery, shall be made to a hearing

officer at the commencement of the hearing and the hearing officer may order such further discovery as is deemed appropriate in his or her discretion. ECB: 48 RCNY § 3-37(b)DEP: 15 RCNY §31-37(b))

Get it in writing. Follow up by letter.

SANCTIONS for failure to comply may include preclusion or striking pleadings

Order of Presentation The City establishes its “prima facie case” through a proper Notice of Violation Prima facie case = proof of all the elements needed to

establish the violation alleged

The ALJ will then turn to you and ask for Respondent’s positions and arguments If there is a factual dispute (e.g., we say there were five

car lifts, they say there are twelve, thus violating our C of O), tell the Court that the issuing officer is needed

If there is only a legal dispute(e.g. wrong party charged), set it out slowly, logically and supported by your proof

EVIDENCE Evidence – those things the finder of fact may consider

when arriving at conclusions. It may include:

Testimony

Documents

Photographs

“Real Evidence” (the thing itself)

Judicial Notice

Testimony Testimony consists of relevant oral statements made

by witnesses under oath

ALWAYS tell the truth – NEVER lie – NEVER ask anyone else to lie

BUT - it is not your job to make the other side’s case.

Documents Relevant documents may include

Business records Legally: A business record is a record made and maintained

in the ordinary course of business by an entity whose business it is to make and maintain such records, each entry being made at or near the time of the transaction reflected therein by someone with personal knowledge who was under a business duty to make such entries.

Factually: An Edison record kept as part of Edison’s business and not produced for litigation.

Official “self proving” certified records (e.g. a certified copy of the Certificate of Occupancy)

Photographs To be admissible, someone must be able to say under

oath that the photo is a fair and accurate representation of that which it purports to show.

Time may make a photo irrelevant (i.e. overcapacity charge at 3 pm on December 23; a photo taken on June 4 doesn’t speak to the issues before the Court, except to show general layout, if that is unchanged).

Real Evidence – The Thing Itself Example: An original signed letter from DCA

permitting rates (you could also use a certified copy of the letter on file with DCA or a copy made and maintained in the regular course of business by Edison)

Judicial Notice Matters of common knowledge within the community

as to which no reasonable dispute exists (e.g. It gets dark earlier in the winter than the summer. West 42st Street in Manhattan is a high-traffic street.)

Burden of Proof The burden of proof means how much proof is needed

to establish something. In civil proceedings in general, and specifically ECB/DCA hearings, the burden of proof is “proof by a fair preponderance of the credible evidence”

Fair preponderance – the scales must tip one way or the other. If they balance equally, respondent is supposed to win.

Credible – believable

Evidence – those things and testimony the ALJ accepts at the hearing

Burden of Proof (2) The City proves its prima facie case by introduction of

a properly issued Notice of Violation

The burden then shifts to Respondent

If Respondent raises an issue of fact, then, as a matter of course, the ALJ will allow the City an adjournment to produce the issuing officer (at DCA the issuing officer will be there)

Examination of Witnesses Either side has the right to present witnesses Witnesses testify under oath (or affirm if religious

conviction so dictates) Order of examination

Direct Examination Cross Examination Redirect Recross

Objections to a question may be made by the non-questioning side

Requests to strike may be made by the non-questioning side

Direct Examination First questioning by the party who is offering the

testimony

Questions must be non-leading (who, what, when, where ,why and how are always okay – a non-leading question must not suggest an answer)

You can “direct the attention” of the witness to a date, time, place – saves everyone time and agita

Cross Examination By the opposing party

Questions may be “leading” – that is, the question suggests the answer (e.g. Isn’t it true that you did not actually see Mrs. X slip?)

Common attacks Ability to perceive

Ability to recall

Ability to recount accurately

Credibility

Prejudice

Redirect Same questioning rules apply as on direct, but

normally somewhat relaxed

Can only question on topics raised on cross examination (not supposed to use to get in stuff you forgot the first time around)

Recross Can ask leading questions

Can only deal with matters discussed in redirect

Procedure in receiving evidence Be aware that ALJ’s are not bound by strict rules of

evidence

The following sections dealing with examinations and evidence may not be strictly followed

You can use them to argue

Objections Objections to Testimony

Objections to Admissibility of Non-Testimonial Evidence

Motions to Strike

Objections to Testimony The non-questioner may object (by saying “objection” and

briefly giving a reason) Object after the question and before the answer Most common objections

Hearsay – witness wants to say what someone else told him for the truth of what was said (unless that someone is the adverse party – then it is an “admission”)

Immaterial – testimony sought is not reasonably related to the issues to be determined

Irrelevant - testimony sought will not make any fact more likely than not

Incompetent witness – testimony sought relates to a matter requiring special knowledge (i.e. a lay person is asked whether Mr. XYZ is mentally ill)

Objections to Admissibility of Non-Testimonial Evidence

Non-testimonial evidence must be offered by someone (“I offer the photograph of the parking lot as it appeared on May 2, 2009 in evidence”)

If you want to object, now is the time to do it Common objections

Lacks Foundation – every piece of evidence, to be admissible must have someone who can testify that it is trustworthy OR it must be self-admitting

Irrelevant OR Immaterial OR both Best evidence rule – a party offering a document must offer the

original UNLESS A copy is the record used in the conduct of the business OR the original cannot be found after diligent search AND there is a

reasonable explanation why that is so AND someone can say that the copy is accurate

Motion to Strike If the answer is not responsive to the question (even if

the answer is relevant and material)

If the witness refuses to be cross examined (or dies on direct)

“I move to strike the answer as non-responsive” or “I move to strike that portion of the answer following ‘No’ as non-responsive”

Final Argument The ALJ will say something like “Is there anything

else? Does anyone want to add anything”

Make your objections to the NoV or Summons again (briefly)

Summarize why the City has failed in its proof and why Edison should not be found in violation

City gets to go last (in theory), but if they say something that needs responding to, ask if you can do so or just respond (low key, respectful)

What happens next In general, assuming that there are contested issues of

material fact OR that there is a challenge based on law, the ALJ will reserve decision and will mail out his/her decision to the address you gave when you filled out the Notice of Appearance.

If there is no contested issue of fact and no challenge to the NoV/Summons, the ALJ may render a written decision immediately and impose a fine. Report that fact IN WRITING both to your operational

superior and to the Office of Edison's General Counsel and fax a copy of the decision immediately

Reporting You must make a written report of the hearing to your

operational superior with a copy to General Counsel

The report should contain, at a minimum The date and time of the hearing

The NoV/Summons Number and charge

The full name of the ALJ

The full name of the Assistant Corporation Counsel (or inspector if at DCA)

The full name, contact information and a brief synopsis of the testimony of any witnesses

Any legal objections raised

Your name and contact information

Appeals A respondent which is found liable has a right to

appeal the decision. The decision whether to appeal will be made by General Counsel, who may consult

Questions We are always happy to assist Edison in its legal work.

If you have a problem preparing for a hearing (and after clearing it with your operational supervisor), please feel free to call us:

ADAM LEITMAN BAILEY, PC

212 – 825-0365

Adam Bailey

Colin Kaufman

Pete Reid