Thomas R. Newman
A fundamental tenet of appellate practice is that the rights of the litigants are to be determined solely on the basis of materials contained between the covers of the record on appeal. With some rare exceptions discussed below, it is a serious breach of appellate decorum to refer to matters outside the record. Counsel who do so run the risk of being reprimanded by the court during oral argument and in a subsequent published opinion.
References in briefs to material not contained in the record may be stricken on motion made by the opposing party and, if granted, this may blemish the offending counsel’s reputation for integrity and reliability before the panel that will decide the appeal. The court may also deny costs to a prevailing party whose brief contained references to matters outside the record. Topal v. Pace University, 167 A.D.2d 387 (2d Dept. 1990) ("since the appendix to the defendant’s brief contains documents dehors the record, the defendant is denied costs on appeal"). This may amount to a significant loss for the prevailing party, far in excess of the $250 statutory costs (CPLR §8203[a]), because the party awarded costs is also entitled to recover its taxable disbursements, including the reasonable cost of printing the record on appeal and briefs. CPLR §8301(a)(6),
It is also improper to annex to a brief affidavits or exhibits that were not presented to the trial court and properly made part of the record on appeal. In City of New York v. Grosfeld Realty Co., 173 A.D.2d 436 (2d Dept. 1991), the court "note[d] with disfavor the attempt on the part of the appellant’s attorneys to submit on this appeal an affidavit specifically rejected by the Supreme Court and, therefore, not properly part of the record on this matter." The First and Second Departments expressly prohibit the attachment of unauthorized materials to an appellate brief. Rule 600.10(d)(1)(iii) of the First Department provides that "[u]nless authorized by the court, briefs to which are added or appended any matter, other than specifically authorized by this rule, shall not be accepted for filing." The rule permits an addendum containing "statutes, rules, regulations, etc." Rule 600.10(d)(1)(i). In the Second Department, Rule 670.10.3(h) similarly provides what materials may be included in an addendum to the brief, e.g., decisions, statutes, cases, etc., cited in the brief that are not published or otherwise readily available, and states that "[u]nless otherwise authorized by order of the court, briefs may not contain maps, photographs, or other addenda."
It is, therefore, important to know what documents constitute the record on appeal, and the starting point is CPLR 5526, which prescribes the content and form of the record on appeal. However, not to be overlooked are the Rules of the Court of Appeals and each of the four departments of the Appellate Division that contain specific provisions concerning what must be included. They should always be reviewed before compiling the record or an appendix, if that method is being used (see CPLR 5528). Legal printers will be glad to assist you in compiling the record on appeal or appendix.
On appeal from a final judgment, the record must include a statement pursuant to CPLR 5531 describing the action, the notice of appeal, a copy of the judgment appealed from, the judgment roll as defined in CPLR 5017(b), including the summons and pleadings, the corrected transcript of the lower court proceedings, relevant exhibits, any orders sought to be reviewed and any opinions in the case. If the appeal is taken from an interlocutory order, the contents of the record are basically the same except that the judgment roll need not be included.
While not prohibited, memoranda of law and deposition transcripts are not required and, generally, not included in the record on appeal because the legal arguments made in memoranda to the trial court can be repeated (or expanded upon) in the brief on appeal. However, memoranda of law are included in the record when they are relevant to an issue of preservation of a point argued on the appeal. See, e.g., Lloyd v. Town of Greece Zoning Bd. of Appeals, 292 A.D.2d 818 (4th Dept.), lv. den. 98 N.Y.2d (2002) (“petitioners’ memorandum of law dated June 22, 2000 is included in the record on appeal for the purpose of determining preservation only”). A party may also wish to include it memorandum of law in the record if it is in danger of exceeding page limits for its brief and wishes to incorporate by reference, so not to waive, additional arguments that were previously made at length in the memorandum.
If your record on appeal is inadequate, you are seriously jeopardizing your client’s case since courts will not always be as magnanimous as the Appellate Division, First Department, was in Liggio v. Liggio, 53 A.D.2d 543 (1st Dept. 1976), where the court remanded for a new trial "so that the parties can fully present their positions in this family dispute. This course is preferable to acting in reliance on the sparse state of the present record." If there is something that you feel will be important for an appellate court to know, if the case ever gets that far, then, if a document, you must include it in your motion papers or offer it in evidence at trial and, if excluded, have it marked for identification. If important testimony of one of your witnesses is excluded, you must make an offer of proof if you want to get that testimony before the appellate court.
The only exceptions to the rule that it is improper for the appellate court to consider material not in the record are where (1) it is something of which the court can take judicial notice, and (2) it is incontrovertible documentary evidence of a type that cannot be changed and the credibility of which is not open to question. This is generally limited to judgment rolls, recorded deeds, certificates of naturalization, income tax returns, and the like.
However, while a court on appeal "may receive further evidence under extremely limited circumstances, e.g., ‘record evidence’ in support of a judgment ... reception of even such limited ‘record’ evidence is ‘never allowed’ on appeal for the purpose of ‘reversing a judgment.’" Tippetts-Abbett-McCarthy-Stratton v. New York State Thruway Authority, 15 A.D.2d 598, 599 (3d Dept. 1961); Matter of Dwyer, 57 A.D.2d 772, 772-73 (1st Dept. 1977).
There is an exception to every rule, and Hunter v. New York, O. & W. R.R. Co., 116 N.Y. 615, 623-24 (1889) is it. The court refused to sustain a judgment where, to do so, it would have had to assume that the plaintiff was nearly, if not fully, nine feet tall. It took judicial notice “of the fact that a man could not strike his head against an obstruction four feet and seven inches above the place on which he was sitting, and that being so, the negligence of the defendant was not established ... . Here the finding, which must exist to support the judgment, is so 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.”
If the appeal is to the Appellate Division, bear in mind that the Appellate Division is the "Appellate Division of the Supreme Court" and it "is hornbook law that a court may take judicial notice of its own records." Casson v. Casson, 107 A.D.2d 342, 343 (1st Dept. 1985) (the court referred in its opinion "to relevant documents in [a] prior record on appeal ... now a part of our official records"). This means that the Appellate Division can take judicial notice of everything in the trial court’s file, including exhibits. Musick v. 330 Wythe Ave. Assoc., 41 A.D.3d 675, 676 (2d Dept. 2007) ("Here, the Supreme Court, in effect, took judicial notice of an appraisal of the fair market value at the time of the breach of a comparable condominium unit that the defendant had submitted to the Supreme Court as an exhibit relative to an earlier application regarding an undertaking. Courts may take judicial notice of their own prior proceedings and records, including exhibits"). And, they may even do so sua sponte after trial. Musick v. 330 Wythe Ave. Assoc., 41 A.D.3d 675; Rothstein v. City Univ. of N.Y., 194 A.D.2d 533, 534 (1993) ("We find that in taking judicial notice of New York City Building Code §27-532 (a) (7) (g), without notice and after trial, the court did not significantly prejudice the defendant by denying it a full and fair opportunity to defend").
The Court of Appeals can also take judicial notice of its own records as well as the records and proceedings in the lower courts. In People v. Continental Casualty Co., 301 N.Y. 79, 82 (1950), the court took judicial notice of the minutes of proceedings in the Court of General Sessions to which its attention had been called by the District Attorney’s brief. In People v. Post Standard Co., 13 N.Y.2d 187, 191 (1963), a criminal contempt case, the court took judicial notice of "the transcript of the proceedings before the County Judge, which became a part of the indictment by reference." And in Martin v. Mieth, 35 N.Y.2d 414, 417 (1974), the Court of Appeals considered "the entire record which was before the Appellate Division, including the inconsistent and contradictory affidavits of plaintiff’s counsel").
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.
Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.