New York Codes, Rules and Regulations › Title 9 - EXECUTIVE DEPARTMENT › Subtitle G - Office of General Services › Chapter II - Division Of Land Utilization › Part 274 - Interference With Riparian Rights › Section 274.8 - Second stage hearing

Current through Register Vol. 46, No. 28, July 10, 2024
The primary purpose of a hearing is to determine and
					 evaluate unresolved issues of fact or law.
(a) Hearing officer. The commissioner will
				  appoint a hearing officer or may hire a person from outside the Office of
				  General Services to hold a particular hearing. Subject to review by the
				  commissioner, the hearing officer shall have power to: rule upon motions and
				  requests; administer oaths and affirmations; summon and examine witnesses;
				  admit or exclude evidence; hear argument on facts or law; do all acts and take
				  all measures necessary for the maintenance of order and efficient conduct of
				  the hearing.
(b) Place and time.
				  The hearing officer may schedule the hearing in Albany or any other time and
				  place.
(c) Participation. A party
				  may appear in person or by counsel. If an attorney represents a party, all
				  papers not required by law to be served personally upon such party shall be
				  served upon the party's attorney. Any person appearing on behalf of a party in
				  a representative capacity shall be required to disclose the basis of their
				  authority to act in such capacity. If the respondent fails to appear at the
				  hearing, issues on which it has the burden of proof may be resolved against
				  said party. Any party who is present may elect, subject to the discretion of
				  the hearing officer, to present all or part of its evidence by affidavit rather
				  than by oral testimony. The hearing officer may open a default or relieve any
				  party of the consequences of any default upon good cause shown, for example,
				  that one has a real interest in the determination and was not given adequate
				  notice or that one was not able to present certain evidence before for reasons
				  beyond his or her control. Failure to appear at a hearing shall not be deemed
				  to be a waiver of the right to be provided with a copy of the findings of fact,
				  final determination and order or to proceed otherwise in any manner prescribed
				  by law.
(d) Notice. When the
				  commissioner schedules a hearing, notice thereof will be mailed to the parties.
				  The notice will include a statement of the time, place and nature of the
				  hearing, the legal authority under which the hearing is to be held, the
				  statutes and rules involved and a short, plain statement of the matters
				  asserted. The notice will also state what the consequences will be if either
				  party fails to attend the hearing or submit additional information.
(e) Evidence.
(1) Each witness shall, before testifying, be
				  sworn or make affirmation.
(2)
				  Prefiled, written testimony may be presented by any party with permission of
				  and subject to the discretion of the hearing officer. Such permission shall be
				  freely granted in the interest of expediting the proceeding. Prefiled testimony
				  shall be sworn to by the witness and subject to cross-examination.
(3) When necessary, in order to prevent undue
				  prolongation of the hearing, the hearing officer may limit the number of times
				  any witness may testify, the repetitious examination or cross-examination of
				  witnesses, or the amount of corroborative or cumulative testimony.
(4) The rules of evidence shall not be
				  strictly applied; provided, however, the hearing officer shall exclude
				  irrelevant, immaterial or unduly repetitious evidence and shall give effect to
				  the rules of privilege recognized by law.
(5) Every party shall have the right to
				  present evidence and cross-examine witnesses.
(6) The hearing officer 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 of General Services. Any party
				  excepting thereto prior to the conclusion of the hearing, if such fact be taken
				  notice of during the hearing, or a party who shall make written application
				  therefor at any time prior to 10 days after service or notice of findings
				  apprising him of such noticed fact, shall be afforded an opportunity to dispute
				  the fact.
(7) 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, shall be
				  admissible in evidence, if the hearing officer finds that it was made in the
				  regular course of any business and that it was the regular course of such
				  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 they shall not affect its
				  admissibility. The term business includes a business profession, occupation and
				  calling of every kind.
(8) Where a
				  public officer is required or authorized, by special provisions of law, to make
				  a certificate or affidavit to a fact ascertained, or an act performed by him in
				  the course of his official duty, and to file or deposit in a public office of
				  the State, the certificate or affidavit so filed or deposited is prima facie
				  evidence of the facts stated.
(9) 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 he has made diligent search of the records and has
				  found no record or entry of a specified nature, is prima facie evidence that
				  the records contain no such record or entry, provided that the statement is
				  accompanied by a certificate that legal custody of the specified official
				  records belongs to such person, which certificate shall be made by a person
				  described in rule 4540 of the Civil Practice Law and Rules of the State of New
				  York.
(10) All maps, surveys and
				  official records affecting real property, which have been on file in the State
				  in the office of the register of any county, any county clerk, any court of
				  record or any department of the State or City of New York for more than 10
				  years, are prima facie evidence of their contents.
(11) Oral argument may be permitted by the
				  hearing officer within his or her discretion and shall be recorded.
(12) All written statements, charts,
				  tabulations and similar data offered in evidence the hearing shall, upon a
				  showing satisfactory to the hearing officer of their authenticity relevancy,
				  and materiality, be received in evidence and shall constitute a part of the
				  record.
(13) Where the testimony of
				  a witness refers to a statute, report or document, the hearing officer shall,
				  after establishing the identity of such statute, report or document, determine
				  whether the same shall be produced at the hearing and physically be made a part
				  of the record or shall be incorporated in the record by reference.