Does 'Sufficient Evidence' or Establishment of a 'Prima Facie' Case Equal a Preponderance of Evidence ?
In Gullo v. Semon (265 AD2d 656, 657 3d Dept 1999), the trial court denied respondent's motion to strike the petitioner's appraisal and denied respondent's motion to dismiss the petition for failure to demonstrate substantial evidence.
The respondent rested after their motions were denied.
Thereafter, the trial court reduced the assessments.
The Appellate Division, not citing FMC Corp. Peroxygen Chems. Div. v. Unmack which was decided six days earlier, wrote that: "based upon our review of the record, we are satisfied that petitioner presented sufficient evidence to establish a prima facie case that the assessment was erroneous and, therefore, overcame the presumption of validity." (Id., at 657.)
But "sufficient evidence" or the establishment of a "prima facie" case alone does not equal a preponderance of the evidence since the former terms only pertain, or should only pertain, to the petitioner's initial burden. Nonetheless, where a respondent fails to present any proof in the face of that burden being met by a petitioner, the petitioner wins. (Id.)