Burden of Proof - Presumptions
A presumption provides a method whereby certain facts are deemed to be prima facie proof of other facts.[1] Presumptions range from those known as “conclusive presumptions” to those known as “permissive presumptions”. Conclusive presumptions are those which describe basic value judgments, such as a defendant is presumed innocent until proven guilty. A conclusive presumption is equivalent to a substantive rule of law which favors the party introducing it and acts to transfer the burden of proof, as does an affirmative defense, to the party raising it. A conclusive presumption cannot be rebutted. [2] It has been said that a conclusive presumption is an inference, which as a matter of law cannot be rebutted. A conclusive presumption is, in reality, a rule of substantive law expressed in terms of rules of evidence.” [3]
A permissive presumption is a rebuttable presumption. It places the burden upon the adversary to come forward with evidence to rebut the presumption, to negative the existence of the fact. [4] A permissive presumption is an inference which the law directs the jury to draw if it finds a given set of facts; an inference is a conclusion which the jury is permitted, but not compelled to draw from the facts.[5]
A “presumption of law” is a rule which requires that a particular inference must be drawn from an ascertained state of facts. A “presumption of fact” merely warrants that a particular inference may be drawn from a state of facts, but does not absolutely demand that such an inference shall be drawn from that fact. In other words, a presumption of fact leaves the trial court free to infer certain conclusions from a certain set of circumstances but does not compel the court to do so.[6] “A presumption of fact is merely an inference drawn by a logical process of reasoning from observation, experience, or other admitted facts. In the absence of any proof, the presumption uncontradicted and undisputed is sufficient to give a basis for a judgment. Such a presumption is rebuttable. It may be rejected and disregarded, no matter how strong and persuasive is its character.”[7] When substantial evidence to the contrary is produced, the presumption disappears and ceases to be a legal factor in the case. [8]
There is a presumption of regularity that attaches to judicial proceedings. Under this presumption, in the absence of evidence to the contrary, it is presumed that a court of general jurisdiction has proceeded within the general scope of its powers. [9]This presumption of regularity attaches with particularity to judicial proceedings in which the jurisdiction of the tribunal is unquestioned.[10]
The orders of a court or judge authorized to act must be presumed to be regular until annulled in a direct proceeding to review or set them aside. [11] The presumption of regularity also applies to the proceedings of foreign courts. [12]The presumption is that a decision was made and signed on the day indicated by the date it bears. [13]
The “presumption of regularity” attaches to the acts of a public official. The law presumes that no official or person acting under an oath of office will do anything contrary to his official duty, or omit anything which his official duty requires to be done and that where a statute requires an official to perform a certain act statutory requirements will be satisfied. Substantial evidence is necessary to overcome that presumption. [14]
A process server’s affidavit of service ordinarily raises a presumption of proper service and constitutes prima facie evidence of proper service of process.[15] However, a defendant’s sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server’s affidavit and necessitates an evidentiary hearing. But, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server’s affidavits.[16] An affidavit by the defendant that is conclusory or bare and unsubstantiated is not sufficient to rebut the presumption.[17]
[1] People v Robinson, 97 Misc 2d 47, 61-64 (Sup Ct 1978)
[2] People v Robinson, 97 Misc 2d 47, 61-64 (Sup Ct 1978) (Citing Richardson on Evidence (J. Prince, 10th Ed., 1973) at 34-38).
[3] Hanley v Flanigan, 104 Misc 2d 698, 701 (Fam Ct 1980) (citing (Richardson on Evidence, Tenth Edition, § 57).
[4] People v Robinson, 97 Misc 2d 47, 61-64 (Sup Ct 1978) (Citing Richardson on Evidence (J. Prince, 10th Ed., 1973) at 34-38).’
[5] People v Robinson, 97 Misc 2d 47, 61-64 (Sup Ct 1978) (citing Bray v. United States, 113 U.S.App.D.C. 136, 306 F.2d 743, 747.)
[6] Platt v. Elias, 186 N.Y. 374, 79 N.E. 1 (1906).
[7] Kennell v. Rider, 225 A.D. 391, 233 N.Y.S. 252 (3 Dept. 1929)
[8] Kennell v. Rider, 225 A.D. 391, 233 N.Y.S. 252 (3 Dept. 1929) (Citing Potts v. Pardee, 220 N. Y. 431, 433, 116 N. E. 78 (8 A. L. R. 785); Rose v. Balfe, 223 N. Y. 481, 119 N. E. 842, Ann. Cas. 1918D, 238; Plumb v. Richmond Light & R. Co., 233 N. Y. 285, 135 N. E. 504, 25 A. L. R. 685; Wigmore, Ev., §§ 2490, 2491.)
[9] John v Centennial Ins. Co., 91 AD2d 1104, 1106 [3d Dept 1983]. In re Anderson's Estate, 171 Misc. 795, 13 N.Y.S.2d 504 (Sur. Ct. 1939); People ex rel. Ackerson v. Warden of City Prison, Kings County, 167 Misc. 475, 3 N.Y.S.2d 412 (Sup 1937).
[10] John v Centennial Ins. Co., 91 AD2d 1104, 1106 [3d Dept 1983]
[11] Herlihy v. Watkins, 252 A.D. 605, 300 N.Y.S. 242 (1st Dep't 1937)
[12] Gonzalez v. Gonzalez, 46 N.Y.S.2d 270 (Sup 1943).
[13] Kennedy v. Smith, 202 A.D. 249, 195 N.Y.S. 196 (3d Dep't 1922).
[14] People v Dominique, 90 NY2d 880 [1997];
In Matter of Anna B.,105 A.D.3d 1399, 964 N.Y.S.2d 804 (4th Dept, 2013) during the proceedings the father contended that he never had notice of either the DSS petition seeking an order of protection or the order of protection itself. In dismissing the petition, the court reasoned that the presumption of regularity applied to the proceedings giving rise to the order of protection. The presumption of regularity assumes that statutory requirements, including those regarding service, were followed. Here, however, inasmuch as it sought dismissal of the petition, DSS had the burden to establish that it properly served the father so as to obtain jurisdiction over him with respect to the order of protection. Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service. DSS, however, failed to meet that burden inasmuch as it failed to submit such an affidavit, and the record was devoid of evidence that the father was served with either the DSS petition giving rise to the order of protection or the order of protection itself. Consequently, it concluded that the court erred in granting the motion to dismiss, and reinstated the petition.
[15] See Velez v. Forcelli, 125 AD3d at 644; Edwards, Angell, Palmer & Dodge, LLP v. Gerschman, 116 AD3d 824, 825; Scarano v. Scarano, 63 AD3d 716, 716)
[16] U.S. Bank, Natl. Assn. v. Arias, 85 AD3d 1014, 1015, quoting Scarano v. Scarano, 63 AD3d at 716.
[17] See Deutsche Bank Natl. Trust Co. v. Quinones, 114 AD3d 719, 719
A presumption provides a method whereby certain facts are deemed to be prima facie proof of other facts.[1] Presumptions range from those known as “conclusive presumptions” to those known as “permissive presumptions”. Conclusive presumptions are those which describe basic value judgments, such as a defendant is presumed innocent until proven guilty. A conclusive presumption is equivalent to a substantive rule of law which favors the party introducing it and acts to transfer the burden of proof, as does an affirmative defense, to the party raising it. A conclusive presumption cannot be rebutted. [2] It has been said that a conclusive presumption is an inference, which as a matter of law cannot be rebutted. A conclusive presumption is, in reality, a rule of substantive law expressed in terms of rules of evidence.” [3]
A permissive presumption is a rebuttable presumption. It places the burden upon the adversary to come forward with evidence to rebut the presumption, to negative the existence of the fact. [4] A permissive presumption is an inference which the law directs the jury to draw if it finds a given set of facts; an inference is a conclusion which the jury is permitted, but not compelled to draw from the facts.[5]
A “presumption of law” is a rule which requires that a particular inference must be drawn from an ascertained state of facts. A “presumption of fact” merely warrants that a particular inference may be drawn from a state of facts, but does not absolutely demand that such an inference shall be drawn from that fact. In other words, a presumption of fact leaves the trial court free to infer certain conclusions from a certain set of circumstances but does not compel the court to do so.[6] “A presumption of fact is merely an inference drawn by a logical process of reasoning from observation, experience, or other admitted facts. In the absence of any proof, the presumption uncontradicted and undisputed is sufficient to give a basis for a judgment. Such a presumption is rebuttable. It may be rejected and disregarded, no matter how strong and persuasive is its character.”[7] When substantial evidence to the contrary is produced, the presumption disappears and ceases to be a legal factor in the case. [8]
There is a presumption of regularity that attaches to judicial proceedings. Under this presumption, in the absence of evidence to the contrary, it is presumed that a court of general jurisdiction has proceeded within the general scope of its powers. [9]This presumption of regularity attaches with particularity to judicial proceedings in which the jurisdiction of the tribunal is unquestioned.[10]
The orders of a court or judge authorized to act must be presumed to be regular until annulled in a direct proceeding to review or set them aside. [11] The presumption of regularity also applies to the proceedings of foreign courts. [12]The presumption is that a decision was made and signed on the day indicated by the date it bears. [13]
The “presumption of regularity” attaches to the acts of a public official. The law presumes that no official or person acting under an oath of office will do anything contrary to his official duty, or omit anything which his official duty requires to be done and that where a statute requires an official to perform a certain act statutory requirements will be satisfied. Substantial evidence is necessary to overcome that presumption. [14]
A process server’s affidavit of service ordinarily raises a presumption of proper service and constitutes prima facie evidence of proper service of process.[15] However, a defendant’s sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server’s affidavit and necessitates an evidentiary hearing. But, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server’s affidavits.[16] An affidavit by the defendant that is conclusory or bare and unsubstantiated is not sufficient to rebut the presumption.[17]
[1] People v Robinson, 97 Misc 2d 47, 61-64 (Sup Ct 1978)
[2] People v Robinson, 97 Misc 2d 47, 61-64 (Sup Ct 1978) (Citing Richardson on Evidence (J. Prince, 10th Ed., 1973) at 34-38).
[3] Hanley v Flanigan, 104 Misc 2d 698, 701 (Fam Ct 1980) (citing (Richardson on Evidence, Tenth Edition, § 57).
[4] People v Robinson, 97 Misc 2d 47, 61-64 (Sup Ct 1978) (Citing Richardson on Evidence (J. Prince, 10th Ed., 1973) at 34-38).’
[5] People v Robinson, 97 Misc 2d 47, 61-64 (Sup Ct 1978) (citing Bray v. United States, 113 U.S.App.D.C. 136, 306 F.2d 743, 747.)
[6] Platt v. Elias, 186 N.Y. 374, 79 N.E. 1 (1906).
[7] Kennell v. Rider, 225 A.D. 391, 233 N.Y.S. 252 (3 Dept. 1929)
[8] Kennell v. Rider, 225 A.D. 391, 233 N.Y.S. 252 (3 Dept. 1929) (Citing Potts v. Pardee, 220 N. Y. 431, 433, 116 N. E. 78 (8 A. L. R. 785); Rose v. Balfe, 223 N. Y. 481, 119 N. E. 842, Ann. Cas. 1918D, 238; Plumb v. Richmond Light & R. Co., 233 N. Y. 285, 135 N. E. 504, 25 A. L. R. 685; Wigmore, Ev., §§ 2490, 2491.)
[9] John v Centennial Ins. Co., 91 AD2d 1104, 1106 [3d Dept 1983]. In re Anderson's Estate, 171 Misc. 795, 13 N.Y.S.2d 504 (Sur. Ct. 1939); People ex rel. Ackerson v. Warden of City Prison, Kings County, 167 Misc. 475, 3 N.Y.S.2d 412 (Sup 1937).
[10] John v Centennial Ins. Co., 91 AD2d 1104, 1106 [3d Dept 1983]
[11] Herlihy v. Watkins, 252 A.D. 605, 300 N.Y.S. 242 (1st Dep't 1937)
[12] Gonzalez v. Gonzalez, 46 N.Y.S.2d 270 (Sup 1943).
[13] Kennedy v. Smith, 202 A.D. 249, 195 N.Y.S. 196 (3d Dep't 1922).
[14] People v Dominique, 90 NY2d 880 [1997];
In Matter of Anna B.,105 A.D.3d 1399, 964 N.Y.S.2d 804 (4th Dept, 2013) during the proceedings the father contended that he never had notice of either the DSS petition seeking an order of protection or the order of protection itself. In dismissing the petition, the court reasoned that the presumption of regularity applied to the proceedings giving rise to the order of protection. The presumption of regularity assumes that statutory requirements, including those regarding service, were followed. Here, however, inasmuch as it sought dismissal of the petition, DSS had the burden to establish that it properly served the father so as to obtain jurisdiction over him with respect to the order of protection. Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service. DSS, however, failed to meet that burden inasmuch as it failed to submit such an affidavit, and the record was devoid of evidence that the father was served with either the DSS petition giving rise to the order of protection or the order of protection itself. Consequently, it concluded that the court erred in granting the motion to dismiss, and reinstated the petition.
[15] See Velez v. Forcelli, 125 AD3d at 644; Edwards, Angell, Palmer & Dodge, LLP v. Gerschman, 116 AD3d 824, 825; Scarano v. Scarano, 63 AD3d 716, 716)
[16] U.S. Bank, Natl. Assn. v. Arias, 85 AD3d 1014, 1015, quoting Scarano v. Scarano, 63 AD3d at 716.
[17] See Deutsche Bank Natl. Trust Co. v. Quinones, 114 AD3d 719, 719
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