§ 700.28. Administrative procedure—Preliminary matters.

A.

Complaint — Filing

1.

Except as otherwise provided in this article, any person claiming to be aggrieved by an unlawful discriminatory real estate practice may, personally or by an attorney-at-law, make, sign and file with the Board a complaint in writing which shall set forth the name and address of the person alleged to have committed the unlawful discriminatory real estate practice complained of, the particulars thereof, and such other information as may be required by the Board. The Board shall promulgate and make available appropriate forms of complaints. Complaints shall be signed under oath or affirmation or under penalty of perjury, and may be reasonably and fairly amended in accordance with subsection B of this section.

2.

Every pleading, written motion or other paper, served on another party or filed or submitted to the Board shall be signed by an attorney or by a party if the party is not represented by an attorney, with the name of the attorney or party clearly printed or typed directly below the signature. Absent good cause shown, the Board shall strike any unsigned paper if the omission of the signature is not corrected promptly after being called to the attention of the attorney or party. By signing a paper, an attorney or party certifies that, to the best of that person's knowledge, information or belief, formed after an inquiry reasonable under the circumstances, the presentation of the paper or the contents thereof are accurate.

3.

The Executive Director may initiate a complaint alleging that a respondent has engaged in a pattern or series of unlawful discriminatory real estate practices affecting the civil rights of more than one person. Such complaint shall be signed and verified by the Executive Director and shall set forth the name and address of the person alleged to have committed the unlawful discriminatory real estate practices complained of and the particulars thereof, together with such other information as may be required by the Board.

4.

A complaint shall not be rejected as insufficient because of failure to include all required information so long as it substantially satisfies the information requirements necessary for processing.

5.

A complainant may file a complaint with the Board alleging an unlawful discriminatory real estate practice, provided it is not later than one year after such alleged practice has occurred or terminated.

6.

A document, including complaints or answers, is filed when it is received for filing by the Board.

7.

Upon the filing of a complaint, the Board shall serve notice upon the complainant acknowledging the filing and advising the complainant of the time limits and choice of forums provided under the law.

8.

The Board shall accept complaints for filing, note the date of filing on the complaint, and assign a complaint number to the complaint.

9.

The Board shall, within 10 days after the filing of any complaint, serve copies thereof, as well as a notice advising of procedural rights and obligations under the law, by mail upon the respondent and all persons it deems to be necessary parties.

10.

The Board may allow for joinder and consolidation of complaints with cases involving common respondents and substantially similar issues.

B.

Complaint — Amendments

1.

The complaining party or the Executive Director may amend a charge:

a.

To cure technical defects of omissions;

b.

To clarify allegations made in the charge;

c.

To add allegations made in the charge;

d.

To add or substitute as a respondent a person who was not originally named as a respondent, but who is, during the course of the investigation, identified as a respondent. For jurisdictional purposes, such amendments shall relate back to the date the original charge was first filed.

2.

A complaint may be amended as of right at any time before it is referred to an Administrative Law Judge for a hearing. After a complaint has been so referred, it may be amended only by application to the Administrative Law Judge.

3.

When a charge is amended to add or substitute a respondent, the Executive Director shall serve upon the new respondent:

a.

The amended charge;

b.

The notice required under section 700.28(A)(9); and

c.

A statement of the basis for the Executive Director's belief that the new respondent is properly named as a respondent. For jurisdictional purposes, amendment of a charge to add or substitute a respondent shall relate back to the date the original charge was filed.

C.

Complaint — Answer

1.

The respondent may file an answer with the Fair Housing Board within ten (10) days of the service of complaint or the amended complaint.

2.

When a respondent files an answer, any allegation of the complaint that is not answered shall be deemed admitted, any allegation upon which the respondent alleges insufficient information shall be deemed denied.

3.

The respondent shall not be permitted to interpose either a counterclaim or a cross-claim in the answer.

4.

The respondent may apply, in writing, to the Executive Director for additional time to file an answer. Such request shall be granted for good cause shown.

5.

An answer may be amended at any time before it is referred to an Administrative Law Judge for a hearing. After an answer has been referred for a hearing, it may be amended by application to the presiding Administrative Law Judge.

D.

Complaints — Representation. The Westchester County Human Rights Commission's agent or attorney shall present the evidence in support of the complaint on behalf of the complainant. Such agent or attorney, however, shall not have an attorney-client relationship with the complainant.

E.

Complaints — Withdrawal and Dismissals

1.

A complainant or the Executive Director may withdraw a complaint at any time prior to the service of an answer by a respondent. Subsequent to the service of an answer by the respondent, the complainant or Executive Director may withdraw a complaint, provided, however, that, upon application by the respondent; the Board may preclude the complainant or Executive Director from subsequently filing any complaint with the Board based upon the same transactions or occurrences as the complaint which was withdrawn.

2.

Nothing in this section shall diminish the Board's authority to bring or continue a complaint pursuant to section 700.28(A)(3) of this article.

3.

The Board shall issue an order dismissing the complaint as to such respondent, which order shall be served by mail upon all necessary parties to the proceeding, if it finds with respect to any respondent that it lacks jurisdiction.

4.

The Board shall promptly dismiss the complaint, if it determines that no probable cause exists to believe that an unlawful discriminatory real estate practice has occurred, is occurring, or is about to occur.

5.

The Executive Director may, in his or her discretion, dismiss a complaint for administrative purposes at any time prior to the taking of testimony at a hearing. Administrative purposes shall include, but not be limited to:

a.

Board personnel have been unable to locate the complainant after reasonable efforts to do so.

b.

The complainant has on at least 2 occasions failed to:

(i)

Appear at mutually agreed upon appointments with the Board; or

(ii)

Appear at an assigned mediation and conflict resolution conference.

c.

The complainant is unwilling to:

(i)

Meet with the Board; or

(ii)

Meet with an assigned mediation and conflict resolution person; or

(iii)

Provide requested documentation; or

(iv)

Attend a hearing.

d.

The complainant has repeatedly engaged in conduct that is disruptive to the orderly functioning of the Board, which shall be documented by the Executive Director.

6.

The Board shall make public disclosure of each such dismissal.

F.

Complaints - Investigation and Determination

1.

Within 30 days after a complaint is filed, the Board shall determine whether it has jurisdiction.

2.

Upon determination that it has jurisdiction, the Board shall determine, within 100 days of the filing of the complaint, unless impracticable to do so, whether there is probable cause to believe that the person named in the complaint, hereinafter referred to as the respondent, has engaged in, is engaging in; or is about to engage in an unlawful discriminatory real estate practice. If the Board is unable to complete the investigation within 100 days after the filing of the complaint, the Executive Director shall notify the complainant and respondent in writing of the reasons for not doing so.

3.

The Executive Director shall provide written notification to both the complainant and respondent regarding the Board's determination of whether probable cause does or does not exist.

4.

The Board shall make a final administrative disposition of a complaint within one (1) year of the date of receipt of a complaint, unless it is impracticable to do so. If it is unable to do so, it shall notify the parties, in writing, of the reasons for not doing so.

5.

A determination that probable cause does not exist shall be subject to judicial review upon application by any party aggrieved by a final Board order.

6.

The Fair Housing Board shall have the authority to:

a.

Grant appropriate temporary or preliminary relief pending final disposition of a complaint if such action is necessary to carry out the purposes of the law;

b.

Issue and seek enforceable subpoenas;

c.

Provide an administrative proceeding in which a civil penalty may be assessed;

d.

Grant equitable relief; and

e.

Grant actual and punitive damages; and

f.

Where a case has been removed pursuant to Section 700.29(A)(I) of this Chapter, authorize the County Attorney to initiate a civil action on behalf of the Fair Housing Board in accordance with the provisions of Section 700.29(A)(2) of this Chapter, naming the complainant or aggrieved person on whose behalf the complaint was filed and the respondent.

7.

The Board shall establish rules of practice or procedure to govern, expedite and effectuate the foregoing procedure and its own actions thereunder, provided that such rules are not inconsistent with the provisions hereof.

G.

Complaints—Conciliation or Mediation. During the period beginning with the filing of a complaint and ending with the finding of probable cause or a dismissal by the Board, the Board shall, to the extent feasible, engage in any method of dispute resolution prescribed by rule of the Board including, but not limited to, mediation and conciliation with respect to such complaint. Any resolution of a complaint by agreement ("conciliation agreement") arising out of conciliation efforts by the Board shall be an agreement between the respondent, the complainant, and the Executive Director, and shall require the approval of the Board. Such conciliation agreement may include provisions requiring the respondent to refrain from the commission of unlawful discriminatory real estate practices in the future and may contain such further provisions as may be agreed upon by the complainant and respondent, subject to approval by the Executive Director, including a provision for the entry of an order in the New York State Supreme Court, County of Westchester, or in such other county where the respondent resides or maintains an office for the transaction of business, containing the terms of the conciliation agreement. Any statement made by any complainant or respondent during any alternate dispute resolution process conducted by, or on behalf of, the Board shall not be admitted into evidence during any hearing or proceeding and shall not be utilized in any fashion in any proceeding to either enforce or review any determination of the Board, unless the party making the statement affirmatively authorizes, in writing, the admission of the statement. The failure or refusal of any party to participate in the alternate dispute resolution process, or the failure or refusal of any party to accept a recommendation by any mediator as to the resolution of the matter, shall not be admissible in any hearing or proceeding before the Board. Each conciliation agreement shall be made public unless the complainant and respondent otherwise agree and the Board determines that disclosure is not required to further the purposes of this article.

H.

Complaints - Hearings

1.

Where the Board has found that it has jurisdiction over the complaint and that there is probable cause to believe that the respondent has engaged, is engaging, or will engage in an unlawful discriminatory real estate practice, and if alternative dispute resolution pursuant to paragraph G above is either not initiated or does not resolve the complaint, the Board shall issue and cause to be issued and served a written notice requiring the respondent to answer the charges of such complaint and appear at a public hearing upon reasonable notice at a time and place to be fixed by the Board and specified in the notice.

2.

A respondent may appear at such public hearing in person or otherwise, with or without counsel, cross-examine witnesses, and the complainant, and submit testimony. Attempts at conciliation or statements made during such attempts, shall not be received in evidence. The complainant and all parties shall be allowed to present testimony in person by counsel and cross-examine witnesses. Subpoenas shall be issued in the manner provided for in the civil practice law and rules to compel the attendance of witnesses or to require the production of any relevant evidence before the Board. The testimony taken at the hearing shall be under oath and a record made. The Board may refer the hearing to an administrative law judge to conduct the hearing and render a written report, containing recommendations as to findings and, if appropriate, relief, to the Board. To the extent practicable, administrative law judges shall be attorneys-at-law, admitted to practice law in the State of New York. At the conclusion of the hearing, or as soon thereafter as may be practicable, the Board shall issue its determination, stating its findings of fact.

(Added by L.L. No. 4-2008, § 7; amended by L.L. No. 9-2012, § 1)