N.Y. Comp. Codes R. & Regs. tit. 6 § 624.9

Current through Register Vol. 46, No. 43, October 23, 2024

Section 624.9 - Evidence, burden of proof and standard of proof

(a) 'Evidence.'

(1) All evidence submitted must be relevant and all rules of privilege will be observed. However, other rules of evidence need not be strictly applied.

(2) Although relevant, evidence may be excluded if its value as proof is substantially outweighed by a potential for unfair prejudice, confusion of the issues, undue delay, waste of time or needless presentation of repetitious or duplicative evidence.

(3) Where a part of a document is offered as evidence by one party, any party may offer the entire document as evidence.

(4) Whenever possible, an object that is the subject of testimony will be exhibited at the evidentiary hearing. It must be properly identified as relevant, and it must be shown that it has not changed substantially due to the passage of time or any other reason.

(5) Each witness must be sworn or make an affirmation before testifying. Opening, closing and other unsworn statements are not evidence but will be considered as arguments bearing on evidence.

(6) The ALJ or the commissioner may take official notice of all facts of which judicial notice could be taken and of other facts within the specialized knowledge of the department. When official notice is taken of a material fact not appearing in the evidence in the record and of which judicial notice could not be taken, every party must be given notice thereof and, on timely request, be afforded an opportunity, prior to final decision, to dispute the fact or its materiality.

(7) Hearsay. The proponents of hearsay evidence must demonstrate that the evidence offered falls within one of the following exceptions:

(i) any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, if the ALJ finds that it was made in the regular course of any business and that it was the regular course of the business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. All other circumstances of the making of the memorandum or record, including lack of personal knowledge by the maker, may be proved to affect its weight, but will not affect its admissibility. The term business includes a business, profession, occupation and calling of every kind;

(ii) where a public officer is required or authorized by special provision of law, to make a certificate or an affidavit to a fact ascertained, or an act performed by the officer in the course of the officer's official duty, and to file or deposit it in a public office of the State, the certificate or affidavit so filed or deposited is prima facie evidence of the facts stated;

(iii) a statement signed by an officer or a qualified agent or representative having legal custody of specified official records of the United States or of any state, county, town, village or city or of any court thereof, or kept in any public office thereof, that a diligent search of the records was made and no record or entry of a specified nature was found, is prima facie evidence that the records contain no such record or entry, but only if the statement is accompanied by a certification that legal custody of the specified official records belongs to that person. The certification must be made by a person described in CPLR 4540;

(iv) all maps, surveys and official records affecting real property, that are on file in the State in the office of the registrar of any county, any county clerk, any court of record or any department of the State or City of New York are prima facie evidence of their contents;

(v) all written statements, charts, tabulations and similar data offered in evidence at the evidentiary hearing, upon a showing that the evidence offered is reliable, relevant and probative;

(vi) exceptions provided by CPLR article 45 or other law; or

(vii) the evidence offered is shown to be reliable, relevant and probative.

(b) 'Burden of proof.'

(1) The applicant has the burden of proof to demonstrate that its proposal will be in compliance with all applicable laws and regulations administered by the department.

(2) Where the department has initiated modification, suspension or revocation proceedings, the department staff bears the burden of proof to show that the modification, suspension or revocation is supported by the preponderance of the evidence.

(3) Where an application is made for permit renewal, the permittee has the burden of proof to demonstrate that the permitted activity is in compliance with all applicable laws and regulations administered by the department, including those renewal applications the department treats as new pursuant to Part 621 of this Title. A demonstration by the permittee that there is no change in permitted activity, environmental conditions or applicable law and regulations constitutes a prima facie case for the permittee.

(4) The burden of proof to sustain a motion will be on the party making the motion.

(c) 'Standard of proof.' Whenever factual matters are involved, the party bearing the burden of proof must sustain that burden by a preponderance of the evidence unless a higher standard has been established by statute or regulation. This subdivision does not modify or supplement the questions that may be raised in a proceeding brought pursuant to CPLR article 78.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 624.9

Adopted New York State Register August 21, 2024/Volume XLVI, Issue 34, eff. 8/21/2024