§ 1-05 Motion Practice.
RCNY § 1-05
(a)General. To enable the parties to resolve the controversy expeditiously, these rules permit a motion to the tribunal for an order that is appropriate in a proceeding governed by the CPLR, but do not permit a motion for costs or disbursements or motions related to discovery procedures as provided for in the CPLR. For good cause shown, the tribunal commissioners or an administrative law judge designated by the chief administrative law judge may order a form of discovery not otherwise provided for under these rules.
(1)All motions must be made, on notice to the adverse party, within 90 days of the service of a pleading by the adverse party unless a different time period is otherwise prescribed for a particular motion by these rules. The motion shall be filed with the chief administrative law judge and shall be made returnable at the tribunal. The return date on which the motion will be considered by an administrative law judge designated by the chief administrative law judge must be at lease 30 days after service of notice of the motion. The adverse party may file an answering affidavit with the chief administrative law judge and must serve a copy on the moving party. The answering affidavit must be filed and served no later than 10 days prior to the return date. Papers may be filed or served as provided in 20 RCNY § 1-17. Any reply affidavit shall be filed and served at least one day prior to the return date.
(2)All motions will be decided on the moving papers and answers submitted without oral argument, unless specific application is made for oral argument by a party and the administrative law judge grants that application.
(3)A notice of motion should be type written and must specify the supporting papers (e.g., affidavits, admissions, bills of particulars) upon which the motion is based, the return date of the motion, and, in separately numbered paragraphs, the relief requested and the grounds for such relief. Any brief, shall be filed with the notice of motion and a copy served on the adverse party. Any answering brief must be served no later than 10 days before the return date. Any reply brief must be filed and served at least one day prior to the return date.
(4)The filing of a motion does not constitute cause for postponement of a scheduled pre-hearing conference or hearing, unless such continuance is specifically ordered by the administrative law judge following receipt of such motion.
(5)An order by an administrative law judge on any motion that does not finally determine all matters and issues contained in the petition, for purposes of review by the tribunal commissioners, shall not be deemed final and conclusive until the administrative law judge shall have rendered a determination on the remaining matters and issues. An order by the tribunal commissioners that does not finally decide all matters and issues contained in the petition, for purposes of review under article 78 of the CPLR, shall not be deemed final and conclusive until the tribunal commissioners shall have rendered a decision on the remaining matters and issues.
(b)Motion to dismiss.
(c)Dismissal by the administrative law judge or tribunal commissioners on its own motion. The administrative law judge or tribunal commissioners may, on their own motion and on notice to the parties, issue a determination or decision dismissing a petition on the ground that: (1) the tribunal lacks jurisdiction over the subject matter of the petition; (2) the tribunal lacks jurisdiction over the taxpayer; or (3) the petition has not been timely filed or served. A determination of an administrative law judge denying a motion to dismiss is not subject to review by the tribunal commissioners.
(d)Motion for summary determination.
(e)Request to withdraw or modify a subpoena.
(f)Motion to recuse.
(i)Either party may move before the chief administrative law judge to recuse the administrative law judge or presiding officer assigned to its case on the basis that the administrative law judge or presiding officer has a personal bias with respect to the case or that the administrative law judge or presiding officer is otherwise disqualified to hear and decide the case.
(ii)The motion to recuse the administrative law judge or presiding officer must be accompanied by an affidavit setting forth the facts upon which the assertion of bias or other disqualification is based.
(iii)The motion to recuse must be made at least 15 days prior to the scheduled hearing date, shall be on notice to the adverse party, and, where not inconsistent with the procedures prescribed in this subdivision (f), shall comply with all procedural provisions of this section.
(iv)The adverse party may respond to the motion to recuse by serving its response on the chief administrative law judge and the moving party not later than five days from the date the motion to recuse was served on such adverse party.
(v)In response to the motion to recuse, the chief administrative law judge shall assign a different administrative law judge or presiding officer to the case or deny the motion by written order. Such order shall be issued not later than five days prior to the scheduled hearing date. A party may not file an exception to such an order until the administrative law judge shall render a determination on the remaining matters and issues.
(vi)In response to the motion, the tribunal commissioners, without the commissioner who is the subject of the motion, shall either deny the motion or shall decide the exception. The tribunal commissioners shall not issue a separate decision on the motion.
(g)Motion to consolidate or sever.
