"The burden of proof is on the party who tenders the issue, because he who affirms must produce the proof to sustain his affirmation. The one who denies may rest on the weakness of his opponent's evidence, but the one who affirms must rest on the strength of his own evidence. As to the allegations of the complaint, the burden of proof was upon the plaintiff, and as to the affirmative defense pleaded in the answer the burden of proof was upon the defendant." (Merzbach v Mayor of City of N.Y., 163 NY 16, 20-21 [1900]; see also e.g. HSBC Bank USA N.A. v Roumiantsev, 39 Misc 3d 1239[A], 2013 NY Slip Op 50929[U] [Sup Ct, Kings County 2013], affd 130 AD3d 983 [2d Dept 2015].)
Footnote 2:While respondent's motion to dismiss lacks any mention of its statutory basis, the court assumes from the arguments made that it is brought under CPLR 3211 (a) (7), failure to state a cause of action. The court disregards this error (see CPLR 2001) but notes that a citation to 24 CFR 982.310 (e) (2) (ii) does not provide the procedural vehicle for granting the relief requested.
Footnote 3:The parallel provisions of the "Tenancy Addendum" to the HAP contract between petitioner and the DHCR, paragraph 8 (a) and (g) (2), simply track the language of the federal regulation and impose no greater requirements than does the federal regulation.