6 CRR-NY 624.9NY-CRR
6 CRR-NY 624.9
6 CRR-NY 624.9
624.9 Evidence, burden of proof and standard of proof.
(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. Hearsay evidence may be admitted if a reasonable degree of reliability is shown.
(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 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 decision, to dispute the fact or its materiality.
(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. 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.
6 CRR-NY 624.9
Current through December 31, 2020
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