United States: The Record And Matter Outside It

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").

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions