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Attached Document:
pedicone_s_03-23-05_memo__rivera_v_bane_.pdf
Documents : Pre-Hearing Disclosure of Requested Case Record Documents
March 23, 2005 Memo to ALJs from Henry Pedicone (Rivera v Bane: Pre-Hearing Provision of Documents to New York City Appellants and Their Representatives)
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This memorandum was issued by Associate Counsel Henry Pedicone in response to the so-ordered Stipulation of Settlement in Rivera v Bane, Index No. 45305/92 (Sup. Ct. New York Co. February 22, 2005), which vacated and replaced the previous Judgment entered in Rivera v Bane, Index No. 45305/92 (Sup. Ct. New York Co. December 22, 1995). Rivera applies only to Fair Hearings involving the New York City Human Resources Administration (HRA).
Mr. Pedicone explains, at p. 1, that
"3. The Stipulation of Settlement sets forth HRA’s agreement to what constitutes a 'reasonable time' to provide documents in its hearings, as well as the consequences for its failure to comply.
"4. For hearing packets, a “reasonable time” for mailing is now within five business days after the request, where the request is made seven or more business days before the hearing. Where the request is made less than seven days before the hearing, the packet must be presented at the hearing. Where HRA does not meet these requirements, HRA has agreed to withdraw its notice.
"5. For specifically identified documents from the case record, a 'reasonable time' for mailing is 'before the date of the hearing.' Where the request is made less than five days before the hearing, a 'reasonable time' is at the hearing. Where HRA does not meet these requirements, the ALJ, in essence, must apply one or more of the remedies set forth in 18 NYCRR Section 358-3.7(b)(4) (e.g., recess, adjournment, document preclusion, etc.), with the additional availability of the specific authority to direct HRA to withdraw its notice."
Mr. Pedicone further explains, at p. 1, that
"7. The Stipulation of Settlement does not apply to any requests for documents other than hearing 'evidence packets' or 'specifically identified documents.' Please note that the Stipulation vacates only the December 22, 1995 judgment. It does not vacate or supersede the Court’s decision of July 25, 1995, which found 'as a matter of law, that DSS regulations do not require HRA to respond to blanket requests for documents such as entire case records or all documents from a particular year.'"
Note: According to ¶ 21 of the Rivera Stipulation, "This Court shall retain jurisdiction over this Stipulation for purposes of modification and enforcement until two (2) years after the data this Stipulation is signed by the Court. At the end of that time, the Court's jurisdiction shall end, the claims against respondents shall be dismissed with prejudice, and this Stipulation shall be without any effect whatsoever, except that nothing in this paragraph shall be construed as a limitation on petitioners' right to move for enforcement during the life of this Stipulation (which may include seeking to modify and/or extend the terms of this Stipulation on the ground that respondents have failed to comply with the terms of the this Stipulation) in accordance with ¶ 12-14 of this Stipulation, or of the parties' right to negotiate an extension of the agreement on consent of all parties."
See February 28, 2007 memorandum from Henry Pedicone concerning the continuation of the terms of the Rivera Stipulation pending further developments.
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Created: 5/31/2008
Updated: 5/31/2008
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