In our December 6, 2006, column in the New York Law Journal, we discussed the general rule that appellate review is limited by the record made in the court below and, with few exceptions, documents and other factual material that were not submitted to the court of original instance will not be considered on appeal.

This month we look at those exceptions.

The Exceptions

The principal exceptions are (i) matters of which the appellate court can take judicial notice, including papers filed and prior proceedings in the appellate court as well as in the court below, (ii) incontrovertible documentary evidence, the existence and accuracy of which is not disputed, and (iii) incontestable physical facts.

• Judicial notice. An appellate court may take judicial notice of matters of public record, including the following: lower court records showing the date an indictment was dismissed, [FN1] the record in the same court of either the pending matter or some other action, [FN2] official Executive memoranda, such as a governor's letter and filed regulations of the Department of Transportation, [FN3] transcript of proceedings before a county court judge, [FN4] and census data from the State Statistical Yearbook. [FN5]
  
  The appellate court is likely to take judicial notice where it 'would help to speed resolution of the situation.' [FN6] Thus, in Crawford v. Merrill, Lynch, Pierce, Fenner & Smith, [FN7] the Court of Appeals explained that it had departed from the 'general rule' that it 'may not consider matters de hors the record, 'because 'if it were followed in this case it would prolong the appeal and accomplish little else.'
  
  The plaintiff does not deny the existence of these rules [of the New York Stock Exchange], or claim that the quoted text is inaccurate or incomplete. Thus, our acceptance of them would not generate factual questions which must first be resolved by other courts. On the other hand, our consideration of them at this time would finally conclude this protracted litigation and return the case, at last, to the arbitrators where it should have begun four years ago. Under these circumstances we believe a narrow exception to the general rule should be recognized; not in order to accommodate the litigants but rather to relieve the courts of an unnecessary burden and to give some impetus to the policy favoring speedy resolution of arbitrable controversies.
• Incontrovertible documentary evidence. This type of evidence includes such things as judgment rolls, 'recorded deeds, maps and site plans...which, as public documents, evince indicia of authenticity and reliability,' [FN8] a certificate of the secretary of state attesting to the dissolution of a corporation, [FN9] a notice of determination of tax due, [FN10] and similar documents where neither the authenticity nor the accuracy of the document is disputed. While, generally, this type of evidence will be considered for the purpose of sustaining an order or judgment, an appellate court may take judicial notice of it 'even for the purposes of modifying or reversing the order under review.' [FN11]
• Incontestable physical facts. Hunter v. New York, O&W R.R. Co. [FN12] was a personal injury action against a railroad by a brakeman who was injured while, he claimed, he was riding on top of a boxcar in a sitting position as it went through a tunnel. The jury returned a verdict for plaintiff which was affirmed by the Appellate Division. The Court of Appeals reversed the judgment and granted a new trial. The court took judicial notice of the 'size and height of the human frame, and doing so we know that the plaintiff's head could not have reached to a height sufficient to come in contact with the [tunnel] arch.' To sustain the judgment, the court would have had to assume that plaintiff was nearly nine feet tall. This it was unwilling to do, finding that '[h]istory records no authenticated instance of men attaining such height,' [FN13] and stating:

  It has been said that an appellate court will not take judicial notice of facts not proven on the trial for the purpose of reversing a judgment. While all reasonable intendments should be indulged in to support a judgment, the court is not called upon to assume the existence of a fact which is contrary to the ordinary course of nature, solely because the party raising the question did not give oral testimony upon it at trial....
  
  Here the finding which must exist to support the judgment, is so far contrary to our general knowledge, and so far outside of common occurrence, that it may, in the absence of further proof, be regarded as contrary to nature, and hence, untrue, and substantial justice will be done by reversing the judgment and granting a new trial.
  
  Upon such trial, if the plaintiff was a giant in stature, or if, as claimed by the learned counsel for respondent, the space above the car was less than I have stated, such facts may be made clear. [FN14]

  Judicial notice has also been taken of the fact of death, when established by a copy of the decedent's death certificate, [FN15] the layout and physical characteristics of the New York City subway system, which the judge daily rode to work, [FN16] and distances between places. [FN17]
• Scientific literature. An appellate court may also take judicial notice of the existence of a body of scientific literature. [FN18] Federal Rule of Evidence 201(b) allows the court to take judicial notice of facts from 'sources whose accuracy cannot reasonably be questioned.' FedREvid 803(18) permits admission of statements contained in 'published treatises, periodicals, or pamphlets on a subject of...science...established as a reliable authority...by judicial notice.' However, '[b]efore an appellate court takes judicial notice it should advise the parties so they can object or furnish helpful documents.' [FN19]

It should be borne in mind that while an appellate court may receive evidence that comes within one of these recognized categories of exceptions to the general rule that the appeal must be decided on the basis of the facts presented to the court below, it need not do so. The decision whether to consider such evidence is discretionary. That being so, the importance of having a fully protected record in which all of the relevant evidence has been submitted to the court below should be obvious.

In addition to taking judicial notice of the foregoing matters of fact, CPLR 4511(a) requires that '[e]very 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 that state.... Judicial notice shall be taken of matters specified in this subdivision if a party requests it, furnishes the court sufficient information for it to comply with the request, and has given each adverse party notice of his intention to request it.'

Appellate Court

Therefore, even though counsel may have been remiss in not bringing a relevant statute or regulation to the attention of the trial court, the appellate court is bound to consider it when it is appropriately called to its attention on appeal.

Thomas R. Newman is of counsel to Duane Morris and author of New York Appellate Practice (Matthew Bender). Steven J. Ahmuty Jr. is a partner at Shaub, Ahmuty, Citrin & Spratt. They are both members of the American Academy of Appellate Lawyers.

1. FN1. Long v. State, 7 NY2d 269, 275, 819 N.Y.S.2d 679, 683 (2006).
2. FN2. Martin v. Mieth, 35 NY2d 414, 417, 362 N.Y.S.2d 853 (1974); Chateau Rive Corp. v. Enclave Development Associates, 22 AD3d 445, 802 N.Y.S.2d 366, 367 (2d Dept. 2005); 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,...'); Rossbach v. Rosenblum, 260 AppDiv 206, 20 N.Y.S.2d 725, 728 (1st Dept.), affd 284 N.Y. 745 (1940).
3. FN3. Rex Paving Corp. v. White, 139 AD2d 176, 183 n.2, 531 N.Y.S.2d 831, 835 (3d Dept 1988).
4. FN4. People v. Post Standard Co., 13 NY2d 185, 191, 245 N.Y.S.2d 377 (1963).
5. FN5. Affronti v. Crosson, 95 NY2d 713, 720, 723 N.Y.S.2d 757, 761 (2001).
6. FN6. Matter of Hartman, 47 AD2d 624, 365 N.Y.S.2d 182 (1st Dept. 1975).
7. FN7. 35 NY2d 291, 299, 361 N.Y.S.2d 140, 146 (1974).
8. FN8. Chateau Rive Corp. v. Enclave Development Associates, 22 AD3d 445, 802 N.Y.S.2d 366, 367 (2d Dept. 2005).
9. FN9. Brandes Meat Corp. v. Cromer, 146 AD2d 666, 537 N.Y.S.2d 177, 178-79 (2d Dept. 1989).
10. FN10. State v. Peerless Ins. Co., 117 AD2d 370, 371, 503 N.Y.S.2d 448, 451 (3d Dept. 1986).
11. FN11. Brandes Meat Corp. v. Cromer, 146 AD2d 666, 667, 537 N.Y.S.2d 177, 178 (2d Dept. 1989); Crawford v. Merrill, Lynch, Pierce, Fenner & Smith, 35 NY2d 291, 299, 361 N.Y.S.2d 140, 146 (1974).
12. FN12. 116 NY 615, 623-624 (1899).
13. FN13. 116 NY at 623.
14. FN14. 116 NY at 624.
15. FN15. Johnson v. Morgenthau, 160 F3d 897 (2d Cir. 1998).
16. FN16. Penthouse International, Ltd. v. Koch, 599 FSupp 1338 (SDNY 1984).
17. FN17. Williams v. Kerr Glass Mfg. Co., 630 FSupp 266 (EDNY 1986).
18. FN18. Browning-Ferris Industries of South Jersey, Inc. v. Muszynski, 899 F2d 151 (2d Cir. 1990); FedREvid 201.
19. FN19. Browning-Ferris Industries of South Jersey, Inc. v. Muszynski, 899 F2d 151 (2d Cir. 1990); FedREvid 201(e) (opportunity to be heard). 3/7/2007 NYLJ 3, (col. 1)

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