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NYS Comptroller

Thomas P. DiNapoli

Guidelines for Adjourning and Scheduling Administrative Hearings

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On November 3, 2008, a revision of title 2 of the Codes, Rules and Regulations of the State of New York, Part 317 (2 New York Codes, Rules and Regulations [NYCRR], Part 317) changed or clarified the Retirement System’s Hearing Administration Bureau procedures on adjournments, accepting medical records and waiving appearance at a hearing. Many but not all of the changes are explained below. They will be updated as necessary.

Adjournments

A party to a Retirement System administrative hearing may request one adjournment without providing a reason for the request (by right) and one for cause (2 New York Codes, Rules and Regulations [NYCRR], Part 317.5). The request must be received in writing by letter, email or fax at least three business days prior to the hearing. If the request is approved, the hearing will be rescheduled. If the rescheduled hearing is for the applicant’s medical witness, we will send a letter to the applicant requesting the dates their doctor will be available (2 NYCRR, Part 317.6).

  1. The first timely request for an adjournment will be granted by right.
  2. The Director of Hearing Administration will determine if the reason for the second adjournment request qualifies as “cause,” which is defined by the regulation as “unusual, unexpected, or unavoidable circumstances beyond the control of the applicant or the other party, such as: a death in the immediate family, serious illness, unavoidable temporary inability to obtain counsel, or inclement weather that prevents all reasonable travel. It does not include any event that can be prevented or mitigated by the timely taking of reasonable action.” (2 NYCRR, Part 317.5 (e) (1)). The following instances would not qualify as cause:
    1. Applicant’s attorney is out of town;
    2. Applicant’s attorney has a conflicting court appearance; or
    3. Applicant or attorney requests more time to obtain additional documents or review the file.
  3. A Hearing Officer may grant an adjournment at a hearing only if all the following conditions are met:
    1. The adjournment is for cause as defined in the regulation,
    2. The applicant has not already used two adjournments, and
    3. The applicant was unable to make a timely request.
  4. The Retirement System will not grant a third adjournment.
  5. The Hearing Administration Bureau may adjourn or cancel a hearing when it is not possible for the hearing to proceed as scheduled (2 NYCRR, Part 317.5 (a)).
  6. Applicants granted one adjournment before November 3, 2008 are entitled to one additional adjournment by right.

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Medical Cases

Applicants must provide the Retirement System with copies of all additional reports and documents to be offered into evidence, including the reports and records of any medical witnesses testifying for the applicant and the names of all witnesses (2 New York Codes, Rules and Regulations [NYCRR], Part 317.9 (b)).

  1. We will send the applicant an acknowledgement letter and include a scheduling form.
  2. Under separate cover, we will send the applicant an encrypted* Compact Disc (CD) containing the medical records we reviewed at the time the determination was made.
  3. The applicant must submit additional records no later than 45 days from the date of the acknowledgement letter. Medical records received after the due date, which is noted on the scheduling form, will not be considered or be part of the hearing record.
  4. We may send additional medical records and a request for supplemental report(s) to Retirement System examining doctor(s) if the additional records are received within 45 days of the date of the acknowledgement letter and are not duplicates of previously submitted documents.
  5. If we receive a hearing request and the applicant has one or more pending disability applications, we will delay the hearing case until determinations have been made on all applications. We will combine all determinations into one hearing case and send an acknowledgement letter to the applicant. The applicant will have 45 days from the date of the acknowledgement letter to provide the Hearing Administration Bureau with additional medical records.

*Encryption ensures your medical information remains private and secure.

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Presentation of Evidence and Witnesses

The applicant must present all evidence and witnesses in support of the claim at the initial hearing (2 New York Codes, Rules and Regulations [NYCRR], Part 317.4 (b)). All testimony and documents to support the applicant’s claim must be offered into evidence at the initial hearing including: incident reports, correspondence from the employer or Retirement System and witnesses’ names.

Failure to Appear and Waiver of Appearance

Failure to appear without an adjournment or waiver of appearance will result in the applicant’s case being closed (2 New York Codes, Rules and Regulations [NYCRR] 317.7 (b)).

  1. We must receive requests to waive appearances three business days prior to a scheduled hearing, unless the applicant’s attorney waives appearance at the hearing.
  2. Failure to appear at the initial hearing without an approved adjournment or a waiver of appearance will result in dismissal of the case.
  3. At any hearing other than the initial hearing, failure to appear without a wavier of appearance or adjournment will result in the applicant's case being closed or dismissed.

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Calculation of a Timely Request for Adjournment or Waiver of Appearance

For purposes of calculating a timely request for an adjournment of a hearing or waiver of appearance, three business days is defined as (2 NYCRR 317.6):

  • Monday for a hearing on Thursday,
  • Tuesday for a hearing on Friday,
  • Wednesday for a hearing on Monday
  • Thursday for a hearing on Tuesday, and
  • Friday for a hearing on Wednesday.

If a New York State holiday falls within the time period, an extra day must be added.

Please send information to:

  • email our Hearing Administration Bureau: Hearings@osc.state.ny.us
  • fax: 518-402-4137
  • mail:

    Gayle Everitt, Director

    Hearing Administration, Mail Drop 7-9a

    NYS and Local Retirement System

    110 State Street

    Albany, NY 12244-0001

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Memorandum and Closing Statement

The Retirement System will make or submit a closing statement summarizing the issues as part of the record. The summary will include the type of application(s), the section of law, and the issues of law and fact. The hearing officer or a party may also ask for submission of memoranda of law as part of the record or in writing. The request for submission is due not more than 30 days from the close of the hearing or receipt of transcript (2 New York Codes, Rules and Regulations [NYCRR] 317.8(c)).

(Rev. 4/09)

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