§ 3-03 Hearings Pursuant to Domestic Relations Law § 15.
RCNY § 3-03
(a)Production of witnesses or notarized affidavits to establish identity. If in the opinion of the issuing clerk there appears to be some question as to the identity of one or both of the parties, the City Clerk, pursuant to the provisions of § 15 of the New York State Domestic Relations Law, may compel the production of witnesses, certified official records or notarized affidavits to establish the identity of the parties.
(b)Request for review of City Clerk's preliminary denial of marriage license.
(1)Applicants who have been preliminarily denied a marriage license by the City Clerk may request a review of such determination by paying a $25 fee and filing a request for a review on such form as may be provided by the City Clerk no later than 30 days after such preliminary denial. The City Clerk may waive this fee upon a showing of financial hardship.
(2)Duty of the City Clerk. Within fifteen days of receipt of a request for review the City Clerk shall forward to the Office of Administrative Trials and Hearings (OATH) such request for review, a written statement outlining the reason for the preliminary denial of the marriage license and the documentary evidence supporting the preliminary denial, all of which documentation with the exception of the request for review shall constitute the petition. A copy of the petition shall be mailed contemporaneously to the applicant via certified mail return receipt requested.
(3)Notice to spouse of record. Where the marriage license was denied because of the existence in the records of the City Clerk of a prior non-terminated marriage, the City Clerk shall exert its best efforts to notify the spouse of record of the impending action. The spouse of record shall be given twenty-one days from the date of mailing to respond to such notification. In such response, the spouse of record may request an opportunity to be heard on the issue, either in writing or at the hearing, if OATH decides a hearing is warranted. Upon request contained in such response, the City Clerk shall forward to the spouse of record all documentation exchanged among OATH, the City Clerk and the applicant.
(4)Applicant's duty to respond. Applicant shall, no later than thirty days after he or she receives the petition, submit in duplicate an answer to the City Clerk including therein any documentary evidence or other proof which may include notarized affidavits in support of his or her claim. Upon written request of the applicant stating the specific reason for such request, submitted no later than five days prior to the due date for such answer, the City Clerk may for good cause grant an extension of time for applicant to submit the same. Upon receipt of the answer the City Clerk shall forward a copy thereof to OATH. Applicant's failure to respond by the deadline set forth herein, including any extension granted by the City Clerk pursuant to this subparagraph, shall be deemed a withdrawal of the applicant's challenge to the City Clerk's preliminary decision and such preliminary decision shall thereafter be deemed final.
(5)Designation of OATH. Pursuant to Section 1048 of the Charter, the City Clerk designates OATH to conduct on its behalf all the reviews and hearings referred to herein.
(6)The reviewing officer. An administrative law judge ("ALJ") employed by OATH shall review the petition and the answer no later than fifteen days after the date of receipt of both the petition and the answer as well as any documentation presented by the spouse of record, if any. If upon such review the ALJ shall conclude that such evidence is sufficient to form a conclusion then the ALJ shall prepare no later than thirty days after receipt of all of the documents referred to in the first sentence of this paragraph a report summarizing the evidence presented, an analysis of the legal and factual issues, recommended findings of fact and recommended disposition. Such report shall be sent to the City Clerk for a final determination of the facts and a final disposition. Alternatively, if the ALJ shall conclude that the evidence presented is insufficient to form a conclusion, the ALJ shall convene a hearing at a date to be determined in such ALJ's sole discretion but no later than sixty days from the date of such initial review. Upon notification thereof by such ALJ, which notification may be electronic, the City Clerk, not later than five days after the date of such notification, shall notify the applicant as well as his or her attorney or other representative, if any, and the spouse of record, if any, of the date of the hearing by certified mail, return receipt requested. Such notification shall be post-marked no later than thirty days prior to the date of such hearing.
(7)Use of expert witness. It shall be the obligation of any party intending to present the testimony of expert witness or witnesses at the hearing to notify the ALJ and the opposing parties of such intention no later than fifteen days prior to the date of the hearing and to submit to both the ALJ and the opposing parties no later than seven days prior to the date of the hearing copies of any reports, filings or any other documentation produced by such expert witness or witnesses which such party intends to use at the hearing. The ALJ may grant an extension of time to the parties.
(8)The hearing. The ALJ shall preside over the hearing, make all procedural rulings, and make a statement on the record describing the nature of the proceedings, the issues, and the manner in which the hearing will be conducted. The ALJ shall have all the requisite powers conferred by law to administer oaths, issue subpoenas, require the attendance of witnesses and production of records, rule upon requests for adjournment, rule upon evidentiary matters and to otherwise regulate the hearing, observe the requirements of due process and effectuate the purposes and provisions of applicable law. All testimony shall be given under oath or affirmation administered by the ALJ. The City Clerk shall have the burden of demonstrating by a preponderance of the evidence that the applicant should not be granted a marriage license.
(9)The applicant and the spouse of record, if any, may be represented by an attorney or other representative of his or her choice.
(10)The applicant as well as the City Clerk and the spouse of record, if any, may have witnesses, may give testimony and may otherwise present relevant and material evidence on his or her behalf, may cross-examine witnesses and may examine any document or other item offered into evidence.
(11)A recorded copy of the record of the hearing shall be prepared by OATH; upon request a compact disc audio recording of the hearing, at no cost, or a transcript of the hearing, at a cost to be determined by OATH, may be provided.
(12)At the discretion of the ALJ, the hearing may be adjourned for good cause upon the request of any of the parties or upon the ALJ's own motion and with notice to the parties.
(13)The hearing shall be conducted in conformity with procedural requirements of applicable law and the rules of procedure adopted by OATH which are not inconsistent with these rules. In the event of any conflict of laws, the rules of this section shall be determinative and controlling.
(14)After the conclusion of the hearing, the ALJ shall prepare a report summarizing the evidence presented, an analysis of the legal and factual issues, recommended findings of fact and a recommended disposition. Such report shall be sent to the City Clerk for a final determination of the facts and a final disposition.
(15)Final decision.
(i)The City Clerk's final decision shall be in writing and shall state reasons for the determinations and, when appropriate, direct specific action. Notwithstanding the foregoing, such final decision need not be a separate formal document and a report submitted to the City Clerk pursuant to paragraph b(6) or b(14) hereof together with a letter from the City Clerk concurring with the recommended findings of fact and recommended disposition shall constitute a final decision. In reaching such final decision, the City Clerk may review the petition and answer and memoranda of law of the parties, if any, and any record of the hearing. The City Clerk shall not be bound by the ALJ's recommendation.
(ii)A copy of such final decision shall be mailed by the City Clerk to the applicant and his or her attorney or representative, if any, and the spouse of record, if any.
(iii)Any of the aggrieved parties have the right to judicial review in accordance with the provisions of Article 78 of the Civil Practice Law and Rules.
