19 CRR-NY 900-8.8NY-CRR
19 CRR-NY 900-8.8
19 CRR-NY 900-8.8
900-8.8 Evidence, burden of proof and standard of proof.
(a) Evidence.
(1) All evidence submitted shall be relevant and all rules of privilege shall be observed. However, other rules of evidence need not be strictly applied. Hearsay evidence may be admitted if it falls within one or more of the exceptions provided by CPLR article 45 or other law, or is shown to be reasonably reliable, relevant and probative.
(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) Each witness shall be sworn or make an affirmation before testifying. Opening, closing and other unsworn statements are not evidence but shall be considered as arguments bearing on evidence.
(5) The ALJ or the executive director may take official notice of all facts of which judicial notice could be taken and of other facts within the specialized knowledge of the office. 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 shall be given notice thereof and, on timely request, be afforded an opportunity, prior to the final decision of the executive director, to dispute the fact or its materiality.
(b) Burden of proof.
(1) The applicant has the burden of proof to demonstrate that its proposal shall be in compliance with all applicable laws and regulations administered by the office.
(2) Where the office has initiated a permit modification, the office staff bears the burden of proof to show that the modification is supported by the preponderance of the evidence.
(3) Where an application is made for permit modification, the permittee has the burden of proof to demonstrate that the modified permitted activity is in compliance with all applicable laws and regulations administered by the office. A demonstration by the permittee that the there is no substantive change in the originally 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 shall be on the party making the motion.
(c) Standard of proof.
Whenever factual matters are involved, the party bearing the burden of proof shall 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.
19 CRR-NY 900-8.8
Current through October 31, 2021
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IMPORTANT NOTE REGARDING CONTENT CURRENCY: The "Current through" date indicated immediately above is the date of the most recently produced official NYCRR supplement covering this rule section. For later updates to this section, if any, please: consult editions of the NYS Register published after this date; or contact the NYS Department of State Division of Administrative Rules at [email protected]. See Help for additional information on the currency of this unofficial version of NYS Rules.