N.Y. Comp. Codes R. & Regs. tit. 6 § 622.11

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

Section 622.11 - Evidence, burden of proof and standard of proof

(a) 'Evidence.'

(1) Before testifying, each witness must be sworn or make an affirmation.

(2) In order to ensure a fair and efficient hearing process, the ALJ may limit the repetitious examination or cross-examination of witnesses or the amount of corroborative or cumulative testimony.

(3) The rules of evidence need not be strictly applied; provided, however, the ALJ will give effect to the rules of privilege recognized by New York State law.

(4) Every party has the right to present evidence and cross-examine witnesses.

(5) Official notice may be taken 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 must on timely request be afforded an opportunity prior to the final order of the commissioner to dispute the fact or its materiality.

(6) 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, which 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 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.

(7) By permission of the ALJ, samples may be displayed at the hearing and may be described for purposes of the record, but need not be admitted in evidence as exhibits.

(8) Where the testimony of a witness refers to a statute, a report or a document, the ALJ must, after being satisfied of the identity of the statute, report or document, determine whether it will be produced at the hearing and physically made a part of the record or if it will be incorporated in the record by reference.

(b) 'Burden of proof.'

(1) Department staff bears the burden of proof on all violations alleged and matters affirmatively asserted in the document that commenced the proceeding.

(2) Respondent bears the burden of proof regarding all affirmative defenses.

(3) The party making a motion bears the burden of proof on that 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 § 622.11

Adopted New York State Register September 16, 2020/Volume XLII, Issue 37, eff. 9/16/2020