Proof: Order, Burdens and Standards

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 95-120

PROOF

CHAPTER 22

PROOF: ORDER, BURDENS

AND STANDARDS

§22:01 New York Trial Notebook 22-2

PROOF

I. ORDER OF PROOF

§22:01 Party With Burden

Goes First

After opening statements, the court will direct

the party with the affirmative burden of proof on

the issue, ordinarily the plaintiff, to “call your first

witness.” The party who must present a prima facie

case in order to prevail—usually but not always

the plaintiff—presents evidence first. [Marshall v.

Davies, 78 NY 414 (1879); Hutchinson v. Shaheen,

55 AD2d 833, 390 NYS2d 317 (4th Dept 1976).]

“A party holding the affirmative of an issue must

present all the evidence on his side of the case before

he closes his proof and may not add to it by the device

of rebuttal evidence.” [Marshall v. Davies, 78 NY

414 (1879); Hutchinson v. Shaheen, 55 AD2d 833,

390 NYS2d 317 (4th Dept 1976). (plaintiff attempted

to rebut defendant’s testimony by resuming the stand

to testify as to defendant’s hostility. Introduction of

rebuttal evidence to attack credibility of defendant’s

witness is generally permissible if hostility was

denied by the defense witness. Court’s refusal to

allow this testimony considered harmless error in

the context of this case); Kapinos by Kapinos v.

Alvarado, 143 AD2d 332, 532 N.Y.Supp.2d 416

(2d Dept 1988) (Plaintiff’s attempt to recall expert

to rebut defendant’s expert as to which lane the auto

collision occurred properly denied by trial court).]

The party who will begin the presentation of

evidence is the party who gave an opening statement

first. [See Ch 21] The defendant will present evidence

first only if it has admitted all the material allegations

of the complaint and the only issues to be resolved are

affirmative defenses; in other words, “if the plaintiff,

without giving any evidence, is entitled to recover

upon the pleadings, the affirmative of the issue rests

with the defendant.” [Heilbronn v. Herzog, 165 NY

98, 101, 58 NE 759 (1900).]

§22:02 Court’s Authority to Vary

Sequence

However, the reception of evidence is always

within the control of the trial court [Holland v.

Baker, 30 AD2d 136, 137, 290 NYS2d 651, 653

(3d Dept 1968)], and the trial court may determine

the sequence in which the issues will be tried

and otherwise regulate the conduct of the trial

in order to achieve a speedy and unprejudiced

disposition of the matters at issue in a setting

of proper decorum. [CPLR 4011.] Accordingly,

the court has the inherent authority to vary the

sequence of trial and the presentation of the order

of witnesses. [Feldsberg v. Nitschke, 49 NY2d 636,

427 NYS2d 751 (1980) (court could limit use of

deposition testimony on rebuttal case); Greenspan

v. Geller, 157 Misc2d 638, 598 NYS2d 133 (Sup

Ct Rockland County 1993).] Of course, the plaintiff

must ordinarily finish presenting a prima facie case

before the defendant can be compelled to present

evidence. [Roberts v. St. Francis Hospital, 96 AD2d

272, 470 NYS2d 716 (3d Dept 1983) (trial court

erred in striking defendant’s answer for refusing

to begin defense presentation of evidence when

plaintiff’s expert had not yet testified, and testimony

was arguably necessary for prima facie case).]

[§§22:03–22:09 Reserved]

II. BURDEN OF PROOF

A. PLAINTIFF

§22:10 Plaintiff Must Present Prima

Facie Case

The burden of proof is on a plaintiff to establish

his or her cause of action when the opposing party

denies it. [Farmer’s Loan and Trust Co. v. Siefke,

144 NY 354, 359 (1895) (Evidence of alteration of

an instrument controverts a fact that plaintiff is bound

to prove in affirmative, that the instrument is the deed

or act of the defendant).] When a party alleges the

existence of a fact as the basis of a cause of action or

defense, the burden of proof is always on the party

who alleges the fact to establish it by competent

proof. [Kay v. Metropolitan Street Railway Co., 163

NY 447, 452, 57 NE 751, 752 (1900).]

A party complaining of an injury has the burden

of proving the extent of the harm suffered. [G. & A.

Moving & Storage Co., Inc. v. Computer Associates

International, Inc., 233 AD2d 479, 479, 650 NYS2d

982, 982 (2d Dept 1996) (trial court erroneously

shifted burden of plaintiff to demonstrate lost profits

to defendant in breach of contract case).] This remains

the case even where plaintiff has been granted a

default judgment on liability. In particular, in motor