burden of rebutting presumption in New York

2015With respect to those branches of its motion which were for summary judgment dismissing the first, third, fourth, fifth, *1027 sixth, and eighth causes of action, the County relies, inter alia, on the fact that “special assessments are presumed to be valid, regular and legal and . . . the burden of rebutting the presumption falls upon the landowner” (Matter of Pokoik v Incorporated Vil. of Ocean Beach, 143 AD2d 1021, 1022 [1988]; see Matter of 1300 Franklin Ave.

2009Further, “special assessments are presumed to be valid, regular and legal and . . . the burden of rebutting the presumption falls upon the landowner, who must show that the properties assessed were not in fact benefited” (Matter of Pokoik v Incorporated Vil. of Ocean Beach, 143 AD2d 1021, 1022 [1988]; see Matter of Donohue v Dutchess County Legislature, 277 AD2d 377 [2000]; Matter of New York State Dormitory Auth. v Board of Trustees of Hyde Park Fire & Water Dist., 206 AD2d 483 [1994], affd 86 NY2d 72 [1995]). “[A] determination by a board with respect to the amount of benefit conferred on pr

2015It is well settled that separate property that is “ ‘commingled with marital property or is subsequently titled in the joint names of the spouses is presumed to be marital property’ ” (Gately v Gately, 113 AD3d 1093, 1094 [2014], lv dismissed 23 NY3d 1048 [2014]), and that “[t]he party seeking a finding of separate property has the burden of rebutting that presumption” (id.).

2015It is well settled that separate property that is “ ‘commingled with marital property or is subsequently titled in the joint names of the spouses is presumed to be marital property’ ” (Gately v Gately, 113 AD3d 1093, 1094 [2014], lv dismissed 23 NY3d 1048 [2014]), and that “[t]he party seeking a finding of separate property has the burden of rebutting that presumption” (id.).

2014The party seeking a finding of separate property has the burden of rebutting that presumption (see Frost, 49 AD3d at 1151 ; Haas v Haas, 265 AD2d 887, 888 [1999]), and we conclude that defendant failed to meet that burden with respect to the assets in question.

2014The party seeking a finding of separate property has the burden of rebutting that presumption (see Frost, 49 AD3d at 1151 ; Haas v Haas, 265 AD2d 887, 888 [1999]), and we conclude that defendant failed to meet that burden with respect to the assets in question.

2022"Thus, in assessing the credibility of recantation testimony, courts consider a variety of factors, including '(1) the inherent believability of the substance of the recanting testimony; (2) the witness's demeanor both at trial and at the evidentiary hearing; (3) the existence of evidence corroborating the trial testimony; (4) the reasons offered for both the trial testimony and the recantation; (5) the importance of facts established at trial as reaffirmed in the recantation; and (6) the relationship between the witness and [the] defendant as related to a motive to lie'" ( People v Nelson , 1

2021"Consideration of recantation evidence involves the following factors: (1) the inherent believability of the substance of the recanting testimony; (2) the witness's demeanor both at trial and at the evidentiary hearing; (3) the existence of evidence corroborating the trial testimony; (4) the reasons offered for both the trial testimony and the recantation; (5) the importance of facts established at trial as reaffirmed in the recantation; and (6) the relationship [*3]between the witness and [the] defendant as related to a motive to lie" ( People v Wong , 11 AD3d 724, 725-726 [2004], citing Peop

2021As relevant here, "[w]ith respect to recantation evidence, the defendant bears the burden of rebutting the presumption of regularity that attached to the prior judicial proceeding by producing substantial evidence that the recanting witness's prior testimony was false" ( People v Nelson , 171 AD3d 1251 , 1253 [2019]; see People v Avery , 80 AD3d 982, 985 [2011], lv denied 17 NY3d 791 [2011]).

2019With respect to recantation evidence, the defendant bears the burden of rebutting the presumption of regularity that attached to the prior judicial proceeding by producing substantial evidence that the recanting witness's prior testimony was false ( see People v Avery , 80 AD3d 982, 985 [2011], lv denied 17 NY3d 791 [2011]; People v Tucker , 40 AD3d 1213, 1214 [2007], lv denied 9 NY3d 882 [2007]).

2011“The analysis must begin with the recognition that the section 474-a (2) scheduled fees are presumptively reasonable in all malpractice cases (see, Gair v Peck, 6 NY2d 97, 113, 114 , supra)[,] . . . the applicant bears the burden of rebutting that presumption^ and] before departing from the statutory fee schedule, the court must make a threshold finding that a departure from the fee schedule is justified because the authorized fee did not equitably compensate counsel” (Yalango v Popp, 84 NY2d 601, 607-608 [1994]).

1999The analysis must begin with the recognition that the section 474-a (2) scheduled fees are presumptively reasonable in all malpractice cases * * * To succeed on a request for excess compensation, then, the applicant bears the burden of rebutting that presumption by establishing that the fee schedule was inadequate to compensate counsel for the representation provided in the particular case * * * Thus, before departing from the statutory fee schedule, the court must make a threshold finding that a departure from the fee schedule is justified because the authorized fee did not equitably compensa

2009Further, “special assessments are presumed to be valid, regular and legal and . . . the burden of rebutting the presumption falls upon the landowner, who must show that the properties assessed were not in fact benefited” (Matter of Pokoik v Incorporated Vil. of Ocean Beach, 143 AD2d 1021, 1022 [1988]; see Matter of Donohue v Dutchess County Legislature, 277 AD2d 377 [2000]; Matter of New York State Dormitory Auth. v Board of Trustees of Hyde Park Fire & Water Dist., 206 AD2d 483 [1994], affd 86 NY2d 72 [1995]). “[A] determination by a board with respect to the amount of benefit conferred on pr

2009Further, “special assessments are presumed to be valid, regular and legal and . . . the burden of rebutting the presumption falls upon the landowner, who must show that the properties assessed were not in fact benefited” (Matter of Pokoik v Incorporated Vil. of Ocean Beach, 143 AD2d 1021, 1022 [1988]; see Matter of Donohue v Dutchess County Legislature, 277 AD2d 377 [2000]; Matter of New York State Dormitory Auth. v Board of Trustees of Hyde Park Fire & Water Dist., 206 AD2d 483 [1994], affd 86 NY2d 72 [1995]). “[A] determination by a board with respect to the amount of benefit conferred on pr

2024The person alleging that a second marriage is not valid has the burden of rebutting the presumption that it is valid and must do so with "strong and satisfactory" proof ( Matter of Esmond v Lyons Bar & Grill , 26 AD2d 884, 884 [1966]).

1983However, even in the event that Daniel and Mary Savarese were not legally married, due to the existence of a valid and existing prior marriage, the plaintiff has the burden of rebutting the presumption of marriage (Esmond v Lyons Bar & Grill, 26 AD2d 884 ; Matter of Masocco v Schaaf, 234 App Div 181 ).

2021As relevant here, "[w]ith respect to recantation evidence, the defendant bears the burden of rebutting the presumption of regularity that attached to the prior judicial proceeding by producing substantial evidence that the recanting witness's prior testimony was false" ( People v Nelson , 171 AD3d 1251 , 1253 [2019]; see People v Avery , 80 AD3d 982, 985 [2011], lv denied 17 NY3d 791 [2011]).

2019With respect to recantation evidence, the defendant bears the burden of rebutting the presumption of regularity that attached to the prior judicial proceeding by producing substantial evidence that the recanting witness's prior testimony was false ( see People v Avery , 80 AD3d 982, 985 [2011], lv denied 17 NY3d 791 [2011]; People v Tucker , 40 AD3d 1213, 1214 [2007], lv denied 9 NY3d 882 [2007]).

2015However, it is equally well settled that a presumption of regularity attaches to all judicial proceedings, and it is the defendant who bears the burden of rebutting that presumption (see People v Bridgeforth, 119 AD3d 600 [2014]; People v Torres, 267 AD2d 261 [1999]; People v Washington, 246 AD2d 676 [1998]).

2002It is equally well settled, however, that a presumption of regularity attaches to all judicial proceedings, and the defendant bears the burden of rebutting that presumption (see People v Torres, 267 AD2d 261 ; People v Firrira, 258 AD2d 666 ; People v Washington, 246 AD2d 676 ).

2022In the context of recantation evidence, which "is inherently unreliable" ( People v Stanton , 200 AD3d 1307 , 1312 [3d Dept 2021] [internal quotation marks and citation omitted], lv denied 38 NY3d 954 [2022]), "the defendant bears the burden of rebutting the presumption of regularity that attached to the prior judicial proceeding by producing substantial evidence that the recanting witness's prior testimony was false" ( People v Stetin , 192 AD3d 1331, 1333 [3d Dept 2021] [internal quotation marks and citation omitted]; see People v Williams , 11 AD3d 810, 812 [3d Dept 2004], lv denied 4 NY3d

2022In the context of recantation evidence, which "is inherently unreliable" ( People v Stanton , 200 AD3d 1307 , 1312 [3d Dept 2021] [internal quotation marks and citation omitted], lv denied 38 NY3d 954 [2022]), "the defendant bears the burden of rebutting the presumption of regularity that attached to the prior judicial proceeding by producing substantial evidence that the recanting witness's prior testimony was false" ( People v Stetin , 192 AD3d 1331, 1333 [3d Dept 2021] [internal quotation marks and citation omitted]; see People v Williams , 11 AD3d 810, 812 [3d Dept 2004], lv denied 4 NY3d

2022In the context of recantation evidence, which "is inherently unreliable" ( People v Stanton , 200 AD3d 1307 , 1312 [3d Dept 2021] [internal quotation marks and citation omitted], lv denied 38 NY3d 954 [2022]), "the defendant bears the burden of rebutting the presumption of regularity that attached to the prior judicial proceeding by producing substantial evidence that the recanting witness's prior testimony was false" ( People v Stetin , 192 AD3d 1331, 1333 [3d Dept 2021] [internal quotation marks and citation omitted]; see People v Williams , 11 AD3d 810, 812 [3d Dept 2004], lv denied 4 NY3d

2021"Consideration of recantation evidence involves the following factors: (1) the inherent believability of the substance of the recanting testimony; (2) the witness's demeanor both at trial and at the evidentiary hearing; (3) the existence of evidence corroborating the trial testimony; (4) the reasons offered for both the trial testimony and the recantation; (5) the importance of facts established at trial as reaffirmed in the recantation; and (6) the relationship [*3]between the witness and [the] defendant as related to a motive to lie" ( People v Wong , 11 AD3d 724, 725-726 [2004], citing Peop

2020The carrier has the burden of rebutting the presumption of compensability ( see Matter of Matias v Donmoor, Inc. , 133 AD2d 998, 999 [1987]) and, regarding an intentional injury, "[t]o dismiss the claim, there must be proof that the claimant's actions were willful and deliberate, as opposed to impulsive" ( Matter of Bell v Utica Corp. , 306 AD2d at 606 [internal quotation marks and citation omitted]).

2020The carrier has the burden of rebutting the presumption of compensability ( see Matter of Matias v Donmoor, Inc. , 133 AD2d 998, 999 [1987]) and, regarding an intentional injury, "[t]o dismiss the claim, there must be proof that the claimant's actions were willful and deliberate, as opposed to impulsive" ( Matter of Bell v Utica Corp. , 306 AD2d at 606 [internal quotation marks and citation omitted]).

2019In other words, the incarcerated parent is not required to [*2]demonstrate that visitation is in the children's best interests; rather, it is the parent opposing prison visitation that bears the burden of rebutting the presumption favoring visitation ( see Matter of Granger v Misercola , 21 NY3d at 91-92 ; Matter of Leary v McGowan , 143 AD3d 1100, 1101 [2016]).