N.Y. Comp. Codes R. & Regs. tit. 12 § 803.20

Current through Register Vol. 46, No. 45, November 2, 2024

Section 803.20 - Hearings

Hearings conducted under the law are considered administrative hearings and as such the general rules of evidence do not apply.

(a) Order of proceeding.

(1) Parties appearing at the hearing shall be given an opportunity to make an opening statement of their position prior to presentation of their facts, narrative, exhibits or witnesses and shall appear in the following order:

(i) the applicant or agent;

(ii) the director, Division of Safety and Health or designated representative;

(iii) employees and/or employee representative(s) of persons working at the cited premises; and

(iv) other interested parties.

(b) Burden of proof. The party applying for the variance or interim order requested shall have the burden of proof.

(c) Evidence.

(1) Admissibility. A party shall be entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. Any oral or documentary evidence may be received, but the hearing officer may exclude evidence which is irrelevant, immaterial or unduly repetitious.

(2) Testimony of witnesses. The testimony of a witness shall be upon oath or affirmation administered by the hearing officer.

(3) Objections. A party who objects to the admission or rejection of any evidence, or to the limitation of the scope of any examination or cross-examination, or to the failure to limit such scope, shall state briefly the grounds for such objection. Any party having an objection to a question need only make that objection once and the party will have a continuing objection on the record to preserve rights on appeal. Rulings on all objections shall appear in the record. Only objections made before the hearing officer may be relied upon subsequently in a proceeding.

(4) Exceptions. Formal exception to an adverse ruling is not required.

(d) Official notice. Official notice may be taken of any material fact not appearing in evidence in the record, which is among the traditional matters of judicial notice or concerning which the Department of Labor by reason of its functions is presumed to be expert; provided, that the parties shall be given adequate notice, at the hearing or by reference in the presiding hearing officer's decision, of the matters so noticed, and shall be given adequate opportunity to show the contrary.

(e) Transcript. Hearings shall be stenographically reported. Copies of the transcript may be obtained by the parties upon written application filed with the reporter, and upon the payment of fees at the rate provided in the agreement with the reporter.

N.Y. Comp. Codes R. & Regs. Tit. 12 § 803.20