New York Codes, Rules and Regulations
Title 6 - DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Chapter VI - General Regulations
Part 622 - Uniform Enforcement Hearing Procedures
Section 622.11 - Evidence, burden of proof and standard of proof
Universal Citation: 6 NY Comp Codes Rules and Regs ยง 622.11
Current through Register Vol. 46, No. 12, March 20, 2024
(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.
Disclaimer: These regulations may not be the most recent version. New York may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.