N.Y. Comp. Codes R. & Regs. tit. 20 § 3000.6

Current through Register Vol. 46, No. 45, November 2, 2024

Section 3000.6 - Bill of particulars; admissions; depositions; disclosure prior to a licensing hearing

(a) Bills of particulars.

(1) After all pleadings have been served, a party may wish the adverse party to supply further details of the allegations in a pleading to prevent surprise at the hearing and to limit the scope of the proof. For this purpose, a party may serve written notice on the adverse party demanding a bill of particulars within 30 days from the date on which the last pleading was served.

(2) The written demand for a bill of particulars must state the items concerning which such particulars are desired. If the party upon whom such demand is served is unwilling to give such particulars, he or she may, in writing to the supervising administrative law judge, make a motion to the tribunal to vacate or modify such demand within 20 days after receipt thereof. The motion to vacate or modify should be supported by papers which specify clearly the objections and the grounds for objection. If no such motion is made, the bill of particulars demanded shall be served within 30 days after the demand, unless the administrative law judge designated by the tribunal shall direct otherwise.

(3) In the event a party fails to furnish a bill of particulars, the administrative law judge designated by the tribunal may, upon motion, issue an order precluding the party from giving evidence at the hearing of items of which particulars have not been delivered. A motion for such relief shall be made within 30 days of the expiration of the date specified for compliance with the request.

(4) Where a bill of particulars is regarded as defective by the party upon whom it is served, the administrative law judge designated by the tribunal may, upon notice, make an order of preclusion or direct the service of a further bill. In the absence of special circumstances, a motion for such relief shall be made within 30 days after the receipt of the bill claimed to be insufficient.

(5) A preclusion order may provide that it will be effective unless a proper bill is served within a specified time.

(b) Admissions.

(1) At any time after service of the answer, and not later than 20 days before the hearing, a party may serve upon any other party a written request for admission of the following:

(i) the genuineness of any papers or documents;

(ii) the correctness or fairness of representation of any photographs described in and served with the request; and

(iii) the truth of any matters of fact set forth in the request.

The request shall pertain to matters as to which the party requesting the admission reasonably believes there can be no substantial dispute at the hearing, and which are within the knowledge of the adverse party or can be ascertained by him or her upon reasonable inquiry. Copies of the papers, documents or photographs shall be served with the request unless copies have already been furnished.

(2) The party to whom the request to admit is directed may choose to respond by serving a statement expressly admitting the matters in question. However, the party is deemed to admit each of the matters as to which an admission was properly requested unless, within 20 days after service of the request, or within such further time as the supervising administrative law judge may allow, the party to whom the request is directed serves upon the party requesting the admission, a verified statement:

(i) denying specifically the matters of which an admission is requested;

(ii) setting forth in detail the reasons why those matters cannot be truthfully admitted or denied; or

(iii) setting forth a claim in detail that the matters of which an admission is requested cannot be fairly admitted without some material qualification or explanation, that the matters constitute a trade secret or that such party would be privileged or disqualified from testifying concerning them. Where the claim is that the matters cannot be fairly admitted without some material qualification or explanation, the party must admit the matters with such qualification or explanation.

(3) Any admission made, or deemed to be made, by a party pursuant to a request made under this section, is for the purpose of the pending proceeding only, and does not constitute an admission for any other purpose, nor may it be used in any other proceeding in the Division of Tax Appeals. The administrative law judge designated by the tribunal may, at any time, allow a party to amend or withdraw any admission on such terms as may be just. Any admission shall be subject to all pertinent objections to admissibility which may be interposed at the hearing.

(c) Depositions to perpetuate testimony. A party to a case pending in the Division of Tax Appeals, who desires to perpetuate his own testimony or that of any other person or to preserve any document or thing, shall file an application pursuant to this section for an order of an administrative law judge authorizing such party to take a deposition for such purpose. Such depositions shall be taken only where there is a substantial risk that the person or document or thing involved will not be available at the hearing of the case, and shall relate only to testimony or document or thing which is not privileged and is material to a matter in controversy.

(1) The application. Content of application. The application to take a deposition shall be signed by the party seeking the deposition or his representative, and shall show the following:

(i) the names and addresses of the persons to be examined;

(ii) the reasons for deposing those persons rather than waiting to call them as witnesses at the hearing;

(iii) the substance of the testimony which the party expects to elicit from each of those persons;

(iv) a statement showing how the proposed testimony or document or thing is material to a matter in controversy;

(v) a statement describing any books, papers, documents, or tangible things to be produced at the deposition by the persons to be examined;

(vi) the time and place proposed for the deposition;

(vii) the officer before whom the deposition is to be taken;

(viii) the date on which the petition was filed with the Division of Tax Appeals;

(ix) any provision desired with respect to payment of expenses, fees, and charges relating to the deposition (see paragraph [6] of this subdivision); and

(x) if the applicant proposes to videotape the deposition, the application shall so state, and shall show the name and address of the videotape operator and of his employer.

(2) Filing and disposition of application. The application may be filed with the Division of Tax Appeals at any time after the petition is filed. The application shall be made to the administrative law judge assigned to the case or if no administrative law judge has yet been assigned to the supervising administrative law judge. The applicant shall serve a copy of the application on each of the other parties to the case, as well as on such other persons who are to be examined pursuant to the application, and shall file with the application a certificate showing such service. Such other parties or persons shall file their objections or other response, with a certificate of service thereof on the other parties and such other persons, within 15 days after such service of the application. A hearing on the application will be held only if directed by the administrative law judge. Unless the administrative law judge shall determine otherwise for good cause shown, an application to take a deposition will not be regarded as sufficient ground for granting an adjournment from a date of hearing theretofore set. If the administrative law judge approves the taking of a deposition, he will issue an order which will include in its terms the name of the person to be examined, the time and place of the deposition, and the officer before whom it is to be taken. If the deposition is to be videotaped, the administrative law judge's order will so state.

(3) Use of stipulation. The parties or their counsel may execute and file a stipulation to take a deposition by agreement instead of filing an application as hereinabove provided. Such a stipulation shall be filed with the supervising administrative law judge in duplicate, and shall contain the same information as is required in subparagraphs (1)(i), (vi), (vii), (ix), and (x) of this subdivision but shall not require the approval or an order of the administrative law judge unless the effect is to delay the hearing of the case. A deposition taken pursuant to a stipulation shall in all respects conform to the requirements of this section.

(4) Person before whom deposition taken. Depositions shall be taken before an officer, other than a party, or the attorney or employee of a party, authorized to administer oaths by the laws of the place where the examination is held.

(5) Arrangements. All arrangements necessary for the taking of the deposition shall be made by the party filing the application or, in the case of a stipulation, by such other persons as may be agreed upon by the parties.

(6) Expenses. The party taking the deposition shall pay all the expenses, fees and charges of the witness whose deposition is taken by him, any charges of the officer presiding at or recording the deposition other than for copies of the deposition, and any expenses involved in providing a place for the deposition. The party taking the deposition shall pay for the original of the deposition; and, upon payment of reasonable charges therefor, the officer shall also furnish a copy of the deposition to any party or the deponent. By stipulation between the parties, provision may be made for any costs, charges or expenses relating to the deposition. Except under extraordinary circumstances, an administrative law judge shall not order a deposition to be held outside of the State of New York unless the expenses of the Division of Taxation are paid by the party requesting the deposition.

(7) Use of deposition. At the hearing or in any other proceeding in the case, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:

(i) The deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.

(ii) The deposition of a party may be used by an adverse party for any purpose.

(iii) The deposition may be used for any purpose if the parties have stipulated to the use of a deposition or if the administrative law judge finds:

(a) that the witness is dead; or

(b) that the witness is at such distance from the place of trial that it is not practicable for him to attend, unless it appears that the absence of the witness was procured by the party seeking to use the deposition; or

(c) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or

(d) that the party offering the deposition has been unable to obtain attendance of the witness at the hearing, as to make it desirable in the interests of justice, to allow the deposition to be used; or

(e) that such exceptional circumstances exist, in regard to the absence of the witness at the hearing, as to make it desirable in the interests of justice, to allow the deposition to be used.

(iv) If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which in fairness ought to be considered with the evidence the party introduced, and any party may introduce any other parts.

(8) Depositions on written questions.

(i) A deposition may be taken on written questions when the parties so stipulate or when the administrative law judge so orders because the testimony is to be taken outside New York State.

(ii) The party seeking the deposition shall serve the written questions upon each party. Within 10 days thereafter, a party so served may serve written cross questions upon each party. Within five days thereafter, the original party may serve written redirect questions upon each party. Within three days after being served with written redirect questions, a party may serve written recross-questions upon each party.

(iii) Copies of all written questions served shall be delivered by the party seeking the deposition to the office designated in the administrative law judge's order.

(d) Disclosure of evidence prior to a license revocation hearing. When the Division of Taxation seeks the revocation of a license or permit, as such terms are used in section 401.4 of the State Administrative Procedure Act, either party shall, upon demand and at least seven days prior to the hearing, disclose the evidence that the party intends to introduce at the hearing, including documentary evidence and the identification of witnesses. The provisions of this subdivision shall not be deemed to require the disclosure of information or material otherwise protected by law from disclosure, including information and material protected because of privilege, the secrecy provisions of the Tax Law or confidentiality. If, after such disclosure, a party determines to rely upon other witnesses or information, the party shall, as soon as practicable, supplement its disclosure by providing the names of such witnesses or the additional documents.

N.Y. Comp. Codes R. & Regs. Tit. 20 § 3000.6