Foundation for Evidence - Judicial Notice of Law and Facts
Judicial notice has been defined as “the knowledge which a judge will officially take of a fact although no evidence to prove that fact has been introduced at trial”. [1] It has been written that the term refers to two distinct phenomena. In one sense it describes the decision that certain facts need not be proved; in the other, it refers to the power (at times, obligation) of a court to apply some principle of law, even though that principle has not been briefed or argued by the parties. In New York, the rules governing judicial notice of facts have developed through the common law process. Judicial notice of law is governed by CPLR 4511.[2]
Under New York statutory law the scope of judicial notice is limited to judicial notice of law. The statute does not mention the scope of judicial notice of facts, which is found in case law.[3]
The Civil Practice Law and Rules provides that every court shall take judicial notice without request of the common law, constitutions and public statutes of the United States and of every state, territory and jurisdiction of the United States and of the official compilation of codes, rules and regulations of the state except those that relate solely to the organization or internal management of an agency of the state and of all local laws and county acts.[4]
In addition, every court may take judicial notice without request of private acts and resolutions of the congress of the United States and of the legislature of the state; ordinances and regulations of officers, agencies or governmental subdivisions of the state or of the United States; and the laws of foreign countries or their political subdivisions.[5]
Judicial notice shall be taken of private acts and resolutions of the congress of the United States and of the legislature of the state; ordinances and regulations of officers, agencies or governmental subdivisions of the state or of the United States; and the laws of foreign countries or their political subdivisions if a party requests it, furnishes the court sufficient information to enable it to comply with the request, and has given each adverse party notice of his intention to request it. The notice must be given in the pleadings or prior to the presentation of any evidence at the trial. However, a court may require or permit other notice.[6]
Whether a matter is judicially noticed or proof is taken, every matter specified in CPLR 4511 must be determined by the judge or referee and included in his findings or charged to the jury. The findings or jury charge is subject to review on appeal as a finding or charge on a matter of law.[7]
In considering whether a matter of law should be judicially noticed, and in determining the matter of law to be judicially noticed, the court may consider any testimony, document, information or argument on the subject, whether offered by a party or discovered through its own research.[8]
Whether or not judicial notice is taken, a printed copy of a statute or other written law or a proclamation, edict, decree or ordinance by an executive contained in a book or publication, purporting to have been published by a government or commonly admitted as evidence of the existing law in the judicial tribunals of the jurisdiction where it is in force, is prima facie evidence of that law. The unwritten or common law of a jurisdiction may be proved by witnesses or printed reports of cases of the courts of the jurisdiction.[9]
New York case law does not clearly define the procedural aspects of judicial notice. [10] Sometimes judicial notice is taken at the request of the parties and sometimes it is taken, sua sponte, by the court. The cases have consistently stated that the taking of judicial notice lies in the court's discretion.[11]
A court may only apply judicial notice to matters of common and general knowledge, well established and authoritatively settled, not doubtful or uncertain. The test is whether sufficient notoriety attaches to the fact to make it proper to assume its existence without proof.[12] Judicial notice of a fact is only proper where there are “adjudicative facts” which are commonly known to exist. “Adjudicative facts” are defined as “propositions of general knowledge which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy”. [13] For a court to take judicial notice of a fact, the source of the underlying information must be of “indisputable reliability”.[14] It “would seem to be an abuse of judicial discretion, to refuse to judicially notice a notorious and indisputable fact.” [15]
The Court may also take judicial notice of the orders and certain documents in the court files.[16] The taking of judicial notice of matters of fact in the court's own files is restricted to undisputed portions of such files. The mere presence of such items in the file does not authorize their admissibility pursuant to judicial notice. [17]
The Appellate Division, Second Department has held that it was not error for the court to take judicial notice of the defendant's net worth statements in the court file which he was required to file pursuant to Domestic Relations Law §236.[18] The Appellate Division, Third Department has held that a court may not take judicial notice of the factual material in the parties worth statements and financial affidavits in the court file. [19]
It is improper for the court to undertake an independent internet investigation which may include articles and other materials that fall short of what may be judicially noticed.[20]
While a court may take judicial notice of its records and files, it may “not take judicial notice of a fact’ which [i]s controverted” Thus, the mere presence of a document in a court file does not mean that judicial notice may be taken. [21]
Courts may take judicial notice of a record in the same court of either the pending matter or of some other action involving the parties. [22] They may also take judicial notice of its own prior proceedings.[23]
Judicial notice can provide a foundation for admitting the records of a particular business into evidence when the records are so patently trustworthy as to be self-authenticating.[24]
Judicial notice may be taken at any time by an Appellate Court. The Court of Appeals took judicial notice on appeal and reversed a plaintiff's judgment because his version of events was physically impossible.[25] The Appellate Division has taken, judicial notice, on appeal, of the fact that a particular date was a public holiday.[26]
The Appellate Division may take judicial notice on appeal of: (a) the orders of rulings of courts of other jurisdictions; [27] (b) matters of public record, including the file in the same court of either the pending matter or some other action;[28] (c) prior orders involving the same parties; [29] (d) records of Federal Courts; [30] (e) records of other New York Courts; [31] (f) the history of litigation between the parties arising from the same transaction;[32] (g) the record in a related case where fragmented treatment of the cases gave rise to the anomalous presence in one record on appeal of critical evidence absent from the other record on appeal;[33] and (h) records before it, and of the court's decision on prior appeal, and of records in prior action involving same parties and subject-matter.[34]
An appellate court may even consider matters outside the record on appeal where there are special circumstances which bear on the pending appeal. [35] It may even consider matters occurring after the trial and after the argument of the appeal.[36]
[1] Prince, Richardson on Evidence (Farrell) 10th Ed. rev. § 8.
[2] Prince, Richardson on Evidence § 2-201 (Farrell 11th Ed.).
[3] CPLR § 4511.
[4] CPLR 4511 (a).
[5] See CPLR 4511 (b)
[6] See CPLR 4511 (b).
[7] See CPLR 4511 (c)
[8] See CPLR 4511 (d).
[9] See CPLR 4511 (d).
[10] See Prince, Richardson on Evidence § 2-201 (Farrell 11th Ed.)
[11] Hunter v. New York, Ontario and Western R.R. Co., 116 N.Y. 615, 621, 23 N.E. 9, 10 (1889).
[12] Carter v. Metro N. Assoc., 255 A.D.2d 251, 251, 680 N.Y.S.2d 239 [1998]; see Prince, Richardson On Evidence § 2–201 [11th Ed. Farrell]).
[13] Weinstein, Korn & Miller, New York Civil Practice, § 4511.02 (2d Ed. 2005) (citing Unif. R. Evid. 9(2))].
[14] Crater Club v. Adirondack Park Agency, 86 A.D.2d 714, 715, 446 N.Y.S.2d 565 (3d Dept.1982) (“judicial notice is improper since the contents of the letter are neither of common knowledge or determinable ‘by resort to…sources of indisputable accuracy’ ”); Miriam Osborn Mem'l Home Ass'n v. Assessor of City of Rye, 9 Misc. 3d 1019, 1024-25, 800 N.Y.S.2d 909, 913 (Sup. Ct. 2005)
[15] Prince, Richardson on Evidence § 2-201 (Farrell 11th Ed.).
[16] Casson v. Casson, 107 A.D.2d 342, 486 N.Y.S.2d 191 (1st Dep’t 1985). (“Even though a copy of defendant's answer is not contained in the instant record on appeal, the records of this court contain a copy, in view of the fact that, as mentioned supra, the Family Court result was appealed to us (appeal number 1764 of January 1978). It is hornbook law that “a court may take judicial notice of its own records (Richardson, Evidence [10th Ed], § 652)” Weinberg v Hillbrae Bldrs., 58 AD2d 546 [1st Dept 1977]). Thus, we will make reference in this opinion to relevant documents in that prior record on appeal, and now a part of our official records”).
[17] Ptasznik v. Schultz, 247 A.D.2d 197, 679 N.Y.S.2d 665 (2d Dep't 1998) (“It is improper for the court to consider an affidavit in the Supreme Court's file that had not been marked or introduced into evidence before the summations. The taking of judicial notice of the court's own files is restricted to undisputed portions of such files. The judicial notice doctrine, does not authorize the introduction, during summation, of an affidavit that happened to be in the court's file, where no evidentiary foundation had been laid for the affidavit and it attested to disputed facts.” The court observed that "[c]ourt files are often replete with letters, affidavits, legal briefs, privileged or confidential data, in camera materials, fingerprint records, probation reports, as well as depositions that may contain unredacted gossip and all manner of hearsay and opinion”. The mere presence of such items in the file does not authorize their admissibility pursuant to judicial notice.)
In Walker ex rel. Velilla v. City of New York, 46 A.D.3d 278, 282, 847 N.Y.S.2d 173, 176-77 (1st Dept. 2007) the Appellate Division held that while a court may take judicial notice of its records and files, it may “not take judicial notice of a ‘fact’ which [i]s controverted”. Thus, the mere presence of a document in a court file does not mean that judicial notice properly can be taken of any factual material asserted in the document. It pointed out that the Second Department observed in Ptasznik, 247 A.D.2d at 199, 679 N.Y.S.2d 665: “Court files are often replete with letters, affidavits, legal briefs, privileged or confidential data, in camera materials, fingerprint records, probation reports, as well as depositions that may contain unredacted gossip and all manner of hearsay and opinion.”
[18] In Baumgardner v. Baumgardner, 98 A.D.3d 929, 951 N.Y.S.2d 64 (2d Dept., 2013) the Appellate Division found no merit to the plaintiff's contention that the Supreme Court erred in taking judicial notice of the defendant's net worth statements which had been filed with the court pursuant to section 236 of the Domestic Relations Law and 22 NYCRR 202.16(b).
[19] In Halse v Halse, 93 A.D.3d 1003, 940 N.Y.S.2d 353 (3d Dept., 2012) the Appellate Division pointed out in a footnote that although defendant filed a statement of net worth with Supreme Court in 2008, it was not proper for the court to take judicial notice of the factual material contained therein (citing Matter of Grange v. Grange, 78 A.D.3d 1253, 1255 [2010]).
In Matter of Grange v. Grange, 78 A.D.3d 1253, 1255, 910 N.Y.S.2d 304 (3d Dept 2010) the Appellate Division held that Family Court erred in taking judicial notice of the contents of financial disclosure affidavits filed with Family Court in 1999, which were neither offered nor admitted into evidence at any of the hearings. The mere presence of those documents in the court file does not mean that judicial notice properly can be taken of any factual material asserted therein.
[20] In HSBC Bank v Taher, 104 A.D.3d 815, 962 N.Y.S.2d 301 (2d Dept., 2013) the Appellate Division reminded the Supreme Court Justice of his obligation to remain abreast of and be guided by binding precedent. It also cautioned the Justice that his independent internet investigation of the plaintiff's standing that included newspaper articles and other materials that fall short of what may be judicially noticed, and which was conducted without providing notice or an opportunity to be heard by any party was improper and should not be repeated.
[21] Weinberg v. Hillbrae Bldrs., Inc., 58 A.D.2d 546, 546, 396 N.Y.S.2d 9 [1977] (court could not take judicial notice of process server's affidavit, which was in court file, where issue raised regarding whether service of summons was properly effected).
[22] Matter of Lane v Lane, 68 AD3d 995, 892 N.Y.S.2d 130 (2 Dept 2009) (The Family Court properly took judicial notice of an earlier neglect proceeding brought against the mother in the Family Court, Richmond County. “In New York, courts may take judicial notice of a record in the same court of either the pending matter or of some other action’ ”).
In Spooner-Boyke v. Charles, 121 A.D.3d 1120, 995 N.Y.S.2d 583 (2d Dept., 2014), Family Court found that the mother committed family offenses, and issued an order of protection directing the mother to stay away from the child. The Appellate Division reversed. It found that Family Court improperly rejected the mother's request that it take judicial notice of the determination in the parties' prior custody proceeding, in the same court, in which the father admittedly made false allegations. That proceeding, and the court's findings regarding the father, were relevant to the court's assessment of the father's credibility in this matter.
[23] In re Terrance L. 276 A.D.2d 699, 714 N.Y.S.2d 357 (2d Dept, 2000) (Family Court did not make inappropriate use of judicial notice during the appellant's parental termination proceeding. It was within the court's power to take such notice of its own prior proceedings. “A court may take judicial notice of prior judicial proceedings though in a different court and involving different parties (see, Fisch, N.Y.Evidence § 1065, at 602-603 [2d Ed]). However, the manner in which it was done here, sua sponte, after the conclusion of the fact-finding hearing, was inappropriate in that respondents had no opportunity to challenge either the accuracy or relevance of the judicially noticed facts.”)
[24] In Elkiam v Elkiam (1991, 1st Dept) 176 AD2d 116, 574 NYS2d 2, the Appellate Division held that the court properly admitted into evidence certain records of the husband's European bank accounts without any foundation testimony. The court stated that judicial notice can provide a foundation for admitting the records of a particular business when the records are so patently trustworthy as to be self-authenticating. In this case the bank records were procured by the husband, under a court order, from the banks that created them, and thus their authenticity could not be seriously challenged.
[25] Hunter v. New York, Ontario and Western R.R. Co., 116 N.Y. 615, 621, 23 N.E. 9, 10 (1889).
[26] Persing v. Coughlin, 214 A.D.2d 145, 632 N.Y.S.2d 366 (4th Dep't 1995).
[27] See Peo ex rel Rosenberg v Rosenberg, 160 AD2d 327, 553 NYS2d 734 (1 Dept 1990) (“…although the Supreme Court did not have before it the decision by the Superior Court of California, this court may take judicial notice of the ruling of a court in another jurisdiction. (See, Hunter v New York, Ontario & W. R. R. Co., 116 NY 615; CPLR 4511 [a]). For us not to give recognition to the California case would merely operate to delay the determination of a custody dispute whose expeditious conclusion is essential to the best interest of the young children. Thus, based solely upon the fact that California has declined to assume jurisdiction, it is appropriate that New York now hear the proceeding. “)
[28] Martin v. Mieth, 35 NY2d 414, 417, 362 N.Y.S.2d 853 (1974) (“...we consider the entire record which was before the Appellate Division, including the inconsistent and contradictory affidavits of plaintiff's counsel.”); Chateau Rive Corp. v. Enclave Development Associates, 22 AD3d 445, 802 N.Y.S.2d 366, 367 (2d Dept. 2005) (“we exercise our discretion in this matter and enlarge the joint record by taking judicial notice of the recorded deeds, maps, and site plans referable to those parcels, which, as public documents, evince indicia of authenticity and reliability.”) ; Matter of Hartman, 47 AD2d 624, 365 N.Y.S.2d 182 (1st Dept. 1975) (reference to Civil Court action; 'it is an accurate information and a public record,...'); Allen v. Strough 301 A.D.2d 11, 752 N.Y.S.2d 339 (2 Dept. 2002) (“In New York, courts may take judicial notice of a record in the same court of either the pending matter or of some other action.”); Rossbach v. Rosenblum, 260 App Div 206, 20 N.Y.S.2d 725, 728 (1st Dept.), affd 284 N.Y. 745 (1940). Sam & Mary Hous. Corp. v. Jo/Sal Mkt. Corp., 100 A.D.2d 901, 903, 474 N.Y.S.2d 786, affd. 64 N.Y.2d 1107, 490 N.Y.S.2d 185, 479 N.E.2d 821; Matter of Currier, 300 N.Y. 162, 170, 90 N.E.2d 18; Matter of Ordway, 196 N.Y. 95, 89 N.E. 474; Prince, Richardson on Evidence § 30, at 18 [10th Ed.].
[29] Lobotsky v. Lobotsky, 103 A.D.2d 799, 477 N.Y.S.2d 433 (2d Dep’t 1984) (“The respondent wife previously sued the appellant husband for a divorce and ancillary relief in the Supreme Court, Westchester County, in which action the husband's amended answer asserted as an affirmative defense the fact that at the time of the ceremonial marriage of the parties the wife was not free to marry. We have examined the papers in the divorce action currently on file in the office of the County Clerk of Westchester County bearing index No. 3343/82 and we take judicial notice of the contents thereof.“)
[30] George v. Time, Inc., 259 A.D. 324, 19 N.Y.S.2d 385 (1st Dep’t 1940), judgment aff’d, 287 N.Y. 742, 39 N.E.2d 941 (1942) (judicial notice taken of orders and judgments in New Jersey federal courts in related litigation. “We may take judicial notice of the fact that a ‘final‘ decree was thereafter entered in the United States District Court; that Victor Talking Machine Company again appealed to the Circuit Court of Appeals; that the Circuit Court after reviewing the entire record finally determined it could see no reason for departing from its conclusion on the merits of the controversy as to the authorship of the song as set forth in its prior opinion…and that plaintiff petitioned the United States Supreme Court for certiorari which was denied.”)
[31] People v. Continental Cas. Co., 301 N.Y. 79, 82, 92 N.E.2d 898 (1950) (Court of Appeals took judicial notice of the minutes of proceedings held in the Court of General Sessions, which were not part of the record on appeal); People v. Simari, 25 A.D.2d 485, 266 N.Y.S.2d 584 (4th Dep’t 1966), order aff’d, 29 A.D.2d 920, 290 N.Y.S.2d 189 (4th Dep’t 1968) ( judicial notice taken of the records of the Erie County Surrogate’s Court); See, also, Slater v. Slater, 208 A.D. 567, 204 N.Y.S. 112, affirmed 240 N.Y. 557, 148 N.E. 703 (1925), (“The court will take judicial notice of its own decisions.”) ; Rossbach v. Rosenblum (1 Dept. 1940) 260 A.D. 206, 20 N.Y.S.2d 725, affirmed 284 N.Y. 745, 31 N.E.2d 509.( Where exhibits consisting of the record of proceedings in former action, though excluded from evidence upon present trial, were documents which were part of the records of the court, the court would take judicial notice that the documents were correctly set forth in such exhibits for identification.)
[32] Leather Development Corp. v. Dun & Bradstreet, Inc., 15 A.D.2d 761, 224 N.Y.S.2d 513 (1st Dep’t 1962)
[33] Allen v. Strough, 301 A.D.2d 11, 752 N.Y.S.2d 339 (2 Dept. 2002)
[34] Susquehanna Silk Mills v. Rebora, 238 A.D. 100, 263 N.Y.S. 858 (1 Dept. 1933), reversed on other grounds 263 N.Y. 539, 189 N.E. 687.
[35] See Matter of Michael B, 80 NY2d 299, 590 NYS2d 60 (“Appellant's request that we ignore these new developments and simply grant him custody, because matters outside the record cannot be considered by an appellate court, would exalt the procedural rule--important though it is--to a point of absurdity, and reflect no credit on the judicial process. ...Indeed, changed circumstances may have particular significance in child custody matters... This Court would therefore take notice of the new facts and allegations to the extent they indicate that the record before us is no longer sufficient for determining appellant's fitness and right to custody of Michael...and remit the matter to Family Court for a new hearing and determination of those issues.”)
[36] In Interrante v. Rozzi, 26 A.D.3d 704, 809 N.Y.S.2d 663 (3d Dep't 2006) following trial Supreme Court awarded plaintiff a judgment of divorce and directed equitable distribution of the marital assets. In May 2004, the court stayed that decision and order pending an accounting of the marital assets and did not enter a judgment of divorce. The court also ruled that an October 1999 restraining order was still in effect and that defendant was in violation of it. The Appellate Division affirmed. It observed that both the record and defendant's admissions as reflected in a Supreme Court order issued subsequent to the May 2004 order fully supported the court's finding that the restraining order continued in force and effect, and that defendant knowingly violated that order. Contrary to defendant's argument that the subsequent order may not be considered, an incontrovertible official document, even though it is dehors the record, may be considered on appeal for the purpose of sustaining a judgment. Given defendant's admitted misappropriation of marital assets, it held that Supreme Court did not abuse its discretion in granting plaintiff leave for an accounting prior to entry of judgment.
Judicial notice has been defined as “the knowledge which a judge will officially take of a fact although no evidence to prove that fact has been introduced at trial”. [1] It has been written that the term refers to two distinct phenomena. In one sense it describes the decision that certain facts need not be proved; in the other, it refers to the power (at times, obligation) of a court to apply some principle of law, even though that principle has not been briefed or argued by the parties. In New York, the rules governing judicial notice of facts have developed through the common law process. Judicial notice of law is governed by CPLR 4511.[2]
Under New York statutory law the scope of judicial notice is limited to judicial notice of law. The statute does not mention the scope of judicial notice of facts, which is found in case law.[3]
The Civil Practice Law and Rules provides that every court shall take judicial notice without request of the common law, constitutions and public statutes of the United States and of every state, territory and jurisdiction of the United States and of the official compilation of codes, rules and regulations of the state except those that relate solely to the organization or internal management of an agency of the state and of all local laws and county acts.[4]
In addition, every court may take judicial notice without request of private acts and resolutions of the congress of the United States and of the legislature of the state; ordinances and regulations of officers, agencies or governmental subdivisions of the state or of the United States; and the laws of foreign countries or their political subdivisions.[5]
Judicial notice shall be taken of private acts and resolutions of the congress of the United States and of the legislature of the state; ordinances and regulations of officers, agencies or governmental subdivisions of the state or of the United States; and the laws of foreign countries or their political subdivisions if a party requests it, furnishes the court sufficient information to enable it to comply with the request, and has given each adverse party notice of his intention to request it. The notice must be given in the pleadings or prior to the presentation of any evidence at the trial. However, a court may require or permit other notice.[6]
Whether a matter is judicially noticed or proof is taken, every matter specified in CPLR 4511 must be determined by the judge or referee and included in his findings or charged to the jury. The findings or jury charge is subject to review on appeal as a finding or charge on a matter of law.[7]
In considering whether a matter of law should be judicially noticed, and in determining the matter of law to be judicially noticed, the court may consider any testimony, document, information or argument on the subject, whether offered by a party or discovered through its own research.[8]
Whether or not judicial notice is taken, a printed copy of a statute or other written law or a proclamation, edict, decree or ordinance by an executive contained in a book or publication, purporting to have been published by a government or commonly admitted as evidence of the existing law in the judicial tribunals of the jurisdiction where it is in force, is prima facie evidence of that law. The unwritten or common law of a jurisdiction may be proved by witnesses or printed reports of cases of the courts of the jurisdiction.[9]
New York case law does not clearly define the procedural aspects of judicial notice. [10] Sometimes judicial notice is taken at the request of the parties and sometimes it is taken, sua sponte, by the court. The cases have consistently stated that the taking of judicial notice lies in the court's discretion.[11]
A court may only apply judicial notice to matters of common and general knowledge, well established and authoritatively settled, not doubtful or uncertain. The test is whether sufficient notoriety attaches to the fact to make it proper to assume its existence without proof.[12] Judicial notice of a fact is only proper where there are “adjudicative facts” which are commonly known to exist. “Adjudicative facts” are defined as “propositions of general knowledge which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy”. [13] For a court to take judicial notice of a fact, the source of the underlying information must be of “indisputable reliability”.[14] It “would seem to be an abuse of judicial discretion, to refuse to judicially notice a notorious and indisputable fact.” [15]
The Court may also take judicial notice of the orders and certain documents in the court files.[16] The taking of judicial notice of matters of fact in the court's own files is restricted to undisputed portions of such files. The mere presence of such items in the file does not authorize their admissibility pursuant to judicial notice. [17]
The Appellate Division, Second Department has held that it was not error for the court to take judicial notice of the defendant's net worth statements in the court file which he was required to file pursuant to Domestic Relations Law §236.[18] The Appellate Division, Third Department has held that a court may not take judicial notice of the factual material in the parties worth statements and financial affidavits in the court file. [19]
It is improper for the court to undertake an independent internet investigation which may include articles and other materials that fall short of what may be judicially noticed.[20]
While a court may take judicial notice of its records and files, it may “not take judicial notice of a fact’ which [i]s controverted” Thus, the mere presence of a document in a court file does not mean that judicial notice may be taken. [21]
Courts may take judicial notice of a record in the same court of either the pending matter or of some other action involving the parties. [22] They may also take judicial notice of its own prior proceedings.[23]
Judicial notice can provide a foundation for admitting the records of a particular business into evidence when the records are so patently trustworthy as to be self-authenticating.[24]
Judicial notice may be taken at any time by an Appellate Court. The Court of Appeals took judicial notice on appeal and reversed a plaintiff's judgment because his version of events was physically impossible.[25] The Appellate Division has taken, judicial notice, on appeal, of the fact that a particular date was a public holiday.[26]
The Appellate Division may take judicial notice on appeal of: (a) the orders of rulings of courts of other jurisdictions; [27] (b) matters of public record, including the file in the same court of either the pending matter or some other action;[28] (c) prior orders involving the same parties; [29] (d) records of Federal Courts; [30] (e) records of other New York Courts; [31] (f) the history of litigation between the parties arising from the same transaction;[32] (g) the record in a related case where fragmented treatment of the cases gave rise to the anomalous presence in one record on appeal of critical evidence absent from the other record on appeal;[33] and (h) records before it, and of the court's decision on prior appeal, and of records in prior action involving same parties and subject-matter.[34]
An appellate court may even consider matters outside the record on appeal where there are special circumstances which bear on the pending appeal. [35] It may even consider matters occurring after the trial and after the argument of the appeal.[36]
[1] Prince, Richardson on Evidence (Farrell) 10th Ed. rev. § 8.
[2] Prince, Richardson on Evidence § 2-201 (Farrell 11th Ed.).
[3] CPLR § 4511.
[4] CPLR 4511 (a).
[5] See CPLR 4511 (b)
[6] See CPLR 4511 (b).
[7] See CPLR 4511 (c)
[8] See CPLR 4511 (d).
[9] See CPLR 4511 (d).
[10] See Prince, Richardson on Evidence § 2-201 (Farrell 11th Ed.)
[11] Hunter v. New York, Ontario and Western R.R. Co., 116 N.Y. 615, 621, 23 N.E. 9, 10 (1889).
[12] Carter v. Metro N. Assoc., 255 A.D.2d 251, 251, 680 N.Y.S.2d 239 [1998]; see Prince, Richardson On Evidence § 2–201 [11th Ed. Farrell]).
[13] Weinstein, Korn & Miller, New York Civil Practice, § 4511.02 (2d Ed. 2005) (citing Unif. R. Evid. 9(2))].
[14] Crater Club v. Adirondack Park Agency, 86 A.D.2d 714, 715, 446 N.Y.S.2d 565 (3d Dept.1982) (“judicial notice is improper since the contents of the letter are neither of common knowledge or determinable ‘by resort to…sources of indisputable accuracy’ ”); Miriam Osborn Mem'l Home Ass'n v. Assessor of City of Rye, 9 Misc. 3d 1019, 1024-25, 800 N.Y.S.2d 909, 913 (Sup. Ct. 2005)
[15] Prince, Richardson on Evidence § 2-201 (Farrell 11th Ed.).
[16] Casson v. Casson, 107 A.D.2d 342, 486 N.Y.S.2d 191 (1st Dep’t 1985). (“Even though a copy of defendant's answer is not contained in the instant record on appeal, the records of this court contain a copy, in view of the fact that, as mentioned supra, the Family Court result was appealed to us (appeal number 1764 of January 1978). It is hornbook law that “a court may take judicial notice of its own records (Richardson, Evidence [10th Ed], § 652)” Weinberg v Hillbrae Bldrs., 58 AD2d 546 [1st Dept 1977]). Thus, we will make reference in this opinion to relevant documents in that prior record on appeal, and now a part of our official records”).
[17] Ptasznik v. Schultz, 247 A.D.2d 197, 679 N.Y.S.2d 665 (2d Dep't 1998) (“It is improper for the court to consider an affidavit in the Supreme Court's file that had not been marked or introduced into evidence before the summations. The taking of judicial notice of the court's own files is restricted to undisputed portions of such files. The judicial notice doctrine, does not authorize the introduction, during summation, of an affidavit that happened to be in the court's file, where no evidentiary foundation had been laid for the affidavit and it attested to disputed facts.” The court observed that "[c]ourt files are often replete with letters, affidavits, legal briefs, privileged or confidential data, in camera materials, fingerprint records, probation reports, as well as depositions that may contain unredacted gossip and all manner of hearsay and opinion”. The mere presence of such items in the file does not authorize their admissibility pursuant to judicial notice.)
In Walker ex rel. Velilla v. City of New York, 46 A.D.3d 278, 282, 847 N.Y.S.2d 173, 176-77 (1st Dept. 2007) the Appellate Division held that while a court may take judicial notice of its records and files, it may “not take judicial notice of a ‘fact’ which [i]s controverted”. Thus, the mere presence of a document in a court file does not mean that judicial notice properly can be taken of any factual material asserted in the document. It pointed out that the Second Department observed in Ptasznik, 247 A.D.2d at 199, 679 N.Y.S.2d 665: “Court files are often replete with letters, affidavits, legal briefs, privileged or confidential data, in camera materials, fingerprint records, probation reports, as well as depositions that may contain unredacted gossip and all manner of hearsay and opinion.”
[18] In Baumgardner v. Baumgardner, 98 A.D.3d 929, 951 N.Y.S.2d 64 (2d Dept., 2013) the Appellate Division found no merit to the plaintiff's contention that the Supreme Court erred in taking judicial notice of the defendant's net worth statements which had been filed with the court pursuant to section 236 of the Domestic Relations Law and 22 NYCRR 202.16(b).
[19] In Halse v Halse, 93 A.D.3d 1003, 940 N.Y.S.2d 353 (3d Dept., 2012) the Appellate Division pointed out in a footnote that although defendant filed a statement of net worth with Supreme Court in 2008, it was not proper for the court to take judicial notice of the factual material contained therein (citing Matter of Grange v. Grange, 78 A.D.3d 1253, 1255 [2010]).
In Matter of Grange v. Grange, 78 A.D.3d 1253, 1255, 910 N.Y.S.2d 304 (3d Dept 2010) the Appellate Division held that Family Court erred in taking judicial notice of the contents of financial disclosure affidavits filed with Family Court in 1999, which were neither offered nor admitted into evidence at any of the hearings. The mere presence of those documents in the court file does not mean that judicial notice properly can be taken of any factual material asserted therein.
[20] In HSBC Bank v Taher, 104 A.D.3d 815, 962 N.Y.S.2d 301 (2d Dept., 2013) the Appellate Division reminded the Supreme Court Justice of his obligation to remain abreast of and be guided by binding precedent. It also cautioned the Justice that his independent internet investigation of the plaintiff's standing that included newspaper articles and other materials that fall short of what may be judicially noticed, and which was conducted without providing notice or an opportunity to be heard by any party was improper and should not be repeated.
[21] Weinberg v. Hillbrae Bldrs., Inc., 58 A.D.2d 546, 546, 396 N.Y.S.2d 9 [1977] (court could not take judicial notice of process server's affidavit, which was in court file, where issue raised regarding whether service of summons was properly effected).
[22] Matter of Lane v Lane, 68 AD3d 995, 892 N.Y.S.2d 130 (2 Dept 2009) (The Family Court properly took judicial notice of an earlier neglect proceeding brought against the mother in the Family Court, Richmond County. “In New York, courts may take judicial notice of a record in the same court of either the pending matter or of some other action’ ”).
In Spooner-Boyke v. Charles, 121 A.D.3d 1120, 995 N.Y.S.2d 583 (2d Dept., 2014), Family Court found that the mother committed family offenses, and issued an order of protection directing the mother to stay away from the child. The Appellate Division reversed. It found that Family Court improperly rejected the mother's request that it take judicial notice of the determination in the parties' prior custody proceeding, in the same court, in which the father admittedly made false allegations. That proceeding, and the court's findings regarding the father, were relevant to the court's assessment of the father's credibility in this matter.
[23] In re Terrance L. 276 A.D.2d 699, 714 N.Y.S.2d 357 (2d Dept, 2000) (Family Court did not make inappropriate use of judicial notice during the appellant's parental termination proceeding. It was within the court's power to take such notice of its own prior proceedings. “A court may take judicial notice of prior judicial proceedings though in a different court and involving different parties (see, Fisch, N.Y.Evidence § 1065, at 602-603 [2d Ed]). However, the manner in which it was done here, sua sponte, after the conclusion of the fact-finding hearing, was inappropriate in that respondents had no opportunity to challenge either the accuracy or relevance of the judicially noticed facts.”)
[24] In Elkiam v Elkiam (1991, 1st Dept) 176 AD2d 116, 574 NYS2d 2, the Appellate Division held that the court properly admitted into evidence certain records of the husband's European bank accounts without any foundation testimony. The court stated that judicial notice can provide a foundation for admitting the records of a particular business when the records are so patently trustworthy as to be self-authenticating. In this case the bank records were procured by the husband, under a court order, from the banks that created them, and thus their authenticity could not be seriously challenged.
[25] Hunter v. New York, Ontario and Western R.R. Co., 116 N.Y. 615, 621, 23 N.E. 9, 10 (1889).
[26] Persing v. Coughlin, 214 A.D.2d 145, 632 N.Y.S.2d 366 (4th Dep't 1995).
[27] See Peo ex rel Rosenberg v Rosenberg, 160 AD2d 327, 553 NYS2d 734 (1 Dept 1990) (“…although the Supreme Court did not have before it the decision by the Superior Court of California, this court may take judicial notice of the ruling of a court in another jurisdiction. (See, Hunter v New York, Ontario & W. R. R. Co., 116 NY 615; CPLR 4511 [a]). For us not to give recognition to the California case would merely operate to delay the determination of a custody dispute whose expeditious conclusion is essential to the best interest of the young children. Thus, based solely upon the fact that California has declined to assume jurisdiction, it is appropriate that New York now hear the proceeding. “)
[28] Martin v. Mieth, 35 NY2d 414, 417, 362 N.Y.S.2d 853 (1974) (“...we consider the entire record which was before the Appellate Division, including the inconsistent and contradictory affidavits of plaintiff's counsel.”); Chateau Rive Corp. v. Enclave Development Associates, 22 AD3d 445, 802 N.Y.S.2d 366, 367 (2d Dept. 2005) (“we exercise our discretion in this matter and enlarge the joint record by taking judicial notice of the recorded deeds, maps, and site plans referable to those parcels, which, as public documents, evince indicia of authenticity and reliability.”) ; Matter of Hartman, 47 AD2d 624, 365 N.Y.S.2d 182 (1st Dept. 1975) (reference to Civil Court action; 'it is an accurate information and a public record,...'); Allen v. Strough 301 A.D.2d 11, 752 N.Y.S.2d 339 (2 Dept. 2002) (“In New York, courts may take judicial notice of a record in the same court of either the pending matter or of some other action.”); Rossbach v. Rosenblum, 260 App Div 206, 20 N.Y.S.2d 725, 728 (1st Dept.), affd 284 N.Y. 745 (1940). Sam & Mary Hous. Corp. v. Jo/Sal Mkt. Corp., 100 A.D.2d 901, 903, 474 N.Y.S.2d 786, affd. 64 N.Y.2d 1107, 490 N.Y.S.2d 185, 479 N.E.2d 821; Matter of Currier, 300 N.Y. 162, 170, 90 N.E.2d 18; Matter of Ordway, 196 N.Y. 95, 89 N.E. 474; Prince, Richardson on Evidence § 30, at 18 [10th Ed.].
[29] Lobotsky v. Lobotsky, 103 A.D.2d 799, 477 N.Y.S.2d 433 (2d Dep’t 1984) (“The respondent wife previously sued the appellant husband for a divorce and ancillary relief in the Supreme Court, Westchester County, in which action the husband's amended answer asserted as an affirmative defense the fact that at the time of the ceremonial marriage of the parties the wife was not free to marry. We have examined the papers in the divorce action currently on file in the office of the County Clerk of Westchester County bearing index No. 3343/82 and we take judicial notice of the contents thereof.“)
[30] George v. Time, Inc., 259 A.D. 324, 19 N.Y.S.2d 385 (1st Dep’t 1940), judgment aff’d, 287 N.Y. 742, 39 N.E.2d 941 (1942) (judicial notice taken of orders and judgments in New Jersey federal courts in related litigation. “We may take judicial notice of the fact that a ‘final‘ decree was thereafter entered in the United States District Court; that Victor Talking Machine Company again appealed to the Circuit Court of Appeals; that the Circuit Court after reviewing the entire record finally determined it could see no reason for departing from its conclusion on the merits of the controversy as to the authorship of the song as set forth in its prior opinion…and that plaintiff petitioned the United States Supreme Court for certiorari which was denied.”)
[31] People v. Continental Cas. Co., 301 N.Y. 79, 82, 92 N.E.2d 898 (1950) (Court of Appeals took judicial notice of the minutes of proceedings held in the Court of General Sessions, which were not part of the record on appeal); People v. Simari, 25 A.D.2d 485, 266 N.Y.S.2d 584 (4th Dep’t 1966), order aff’d, 29 A.D.2d 920, 290 N.Y.S.2d 189 (4th Dep’t 1968) ( judicial notice taken of the records of the Erie County Surrogate’s Court); See, also, Slater v. Slater, 208 A.D. 567, 204 N.Y.S. 112, affirmed 240 N.Y. 557, 148 N.E. 703 (1925), (“The court will take judicial notice of its own decisions.”) ; Rossbach v. Rosenblum (1 Dept. 1940) 260 A.D. 206, 20 N.Y.S.2d 725, affirmed 284 N.Y. 745, 31 N.E.2d 509.( Where exhibits consisting of the record of proceedings in former action, though excluded from evidence upon present trial, were documents which were part of the records of the court, the court would take judicial notice that the documents were correctly set forth in such exhibits for identification.)
[32] Leather Development Corp. v. Dun & Bradstreet, Inc., 15 A.D.2d 761, 224 N.Y.S.2d 513 (1st Dep’t 1962)
[33] Allen v. Strough, 301 A.D.2d 11, 752 N.Y.S.2d 339 (2 Dept. 2002)
[34] Susquehanna Silk Mills v. Rebora, 238 A.D. 100, 263 N.Y.S. 858 (1 Dept. 1933), reversed on other grounds 263 N.Y. 539, 189 N.E. 687.
[35] See Matter of Michael B, 80 NY2d 299, 590 NYS2d 60 (“Appellant's request that we ignore these new developments and simply grant him custody, because matters outside the record cannot be considered by an appellate court, would exalt the procedural rule--important though it is--to a point of absurdity, and reflect no credit on the judicial process. ...Indeed, changed circumstances may have particular significance in child custody matters... This Court would therefore take notice of the new facts and allegations to the extent they indicate that the record before us is no longer sufficient for determining appellant's fitness and right to custody of Michael...and remit the matter to Family Court for a new hearing and determination of those issues.”)
[36] In Interrante v. Rozzi, 26 A.D.3d 704, 809 N.Y.S.2d 663 (3d Dep't 2006) following trial Supreme Court awarded plaintiff a judgment of divorce and directed equitable distribution of the marital assets. In May 2004, the court stayed that decision and order pending an accounting of the marital assets and did not enter a judgment of divorce. The court also ruled that an October 1999 restraining order was still in effect and that defendant was in violation of it. The Appellate Division affirmed. It observed that both the record and defendant's admissions as reflected in a Supreme Court order issued subsequent to the May 2004 order fully supported the court's finding that the restraining order continued in force and effect, and that defendant knowingly violated that order. Contrary to defendant's argument that the subsequent order may not be considered, an incontrovertible official document, even though it is dehors the record, may be considered on appeal for the purpose of sustaining a judgment. Given defendant's admitted misappropriation of marital assets, it held that Supreme Court did not abuse its discretion in granting plaintiff leave for an accounting prior to entry of judgment.
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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