Alternatives to Testimonial and Physical Proof

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 555-574

ALTERNATIVES

TO PROOF

CHAPTER 18

ALTERNATIVES TO

TESTIMONIAL AND

PHYSICAL PROOF

§18:01 New York Trial Notebook 18-2

ALTERNATIVES

TO PROOF

I. JUDICIAL NOTICE

A. GENERAL POINTS

§18:01 Definition

Judicial notice is a great evidentiary device

that allows counsel to establish simple matters of

law or fact without the need to present testimony.

Judicial notice has been defined as that “mode of

ascertainment by judicial authority of matters of

universal knowledge without having such matters

established by evidence in the individual case.”

[Murray v. Donlan, 77 AD2d 337, 433 NYS2d

184 (2d Dept 1980) (judicial notice not allowed of

purported fact that a car with functioning brakes

could be stopped at a certain distance. No evidentiary

basis for the stopping distance was established).]

§18:02 Effect

Things noticed judicially are conclusively

established and the jury is bound to accept them

as true without the necessity of establishing their

truth. [Murray v. Donlan, 77 AD2d 337, 433

NYS2d 184 (2d Dept 1980).]

§18:03 Categories

Judicial notice may be loosely divided into two

categories: notice of law and notice of facts.

[§§18:04–18:09 Reserved]

B. JUDICIAL NOTICE OF LAW

§18:10 Mandatory Notice Without

Request

“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.” [CPLR §4511(a).]

CPLR §4511(a) allows a New York judge

to take judicial notice of the laws of any state in

the country whether it is codified or part of the

common law of that state.

The “common law” includes the pronouncements

of the state courts. For example, in Wells v. State

of New York, 130 Misc2d 113, 121, 495 NYS2d

591, 597 (Sup Ct Steuben County 1985), affirmed

134 AD2d 874, 521 NYS2d 604 (4th Dept 1987),

the trial court judicially noticed the Court of

Appeals recognition in Spier v. Barker, 35 NY2d

444, 445, 523 NE2d 164, 363 NYS2d 916 (1974),

of the fact that seat belts save lives. The Court of

Appeals having taken judicial notice of this “fact”

in a judicial decision, the “fact” became part of the

state’s common law.

Pursuant to CPLR 4511(a) the court is obliged

to accord notice to sister-state law whether pleaded

or not and whether advance notice is given or not.

[Gevinson v. Kirkeby-Natus Corp., 26 AD2d 71,

270 NYS2d 989 (1st Dept 1966).] This rule has been

modified to the extent that sister-state law must be

identified in a bill of particulars as an aide to the

court and litigants. [See, e.g., Vagelos v. Robinson,

37 AD2d 544, 322 NYS2d 384 (1st Dept 1971)

(judicial notice of New Jersey traffic ordinances).]

Judicial notice of the law of sister states is

particularly important when choice of law principles

dictate that the law of the foreign state be applied in the

case at hand. Of course, the first step is to determine

whether there is an actual conflict of law between

jurisdictions. [Matter of Allstate Insurance (Stolarz-

New Jersey Manufacturers Insurance Co.), 81 NY2d

219, 597 NYS2d 904 (1993) (Court of Appeals

engages in an extensive conflict of laws analysis in

an appeal from a proceeding to stay arbitration in an

automobile insurance policy dispute).]

In Hamilton v. Miller, 23 NY3d 592, 992 NYS2d

190 (2014), Supreme Court properly denied plaintiff’s

motion for judicial notice of 42 USC §4851, which

contained findings justifying legislation aimed at

reducing lead. “What [plaintiff] really wanted was to

have Supreme Court take judicial notice of the fact

that exposure to lead paint can cause injury. To be

sure, a court may take judicial notice of facts which

are capable of immediate and accurate determination

by resort to easily accessible sources of indisputable

accuracy [quotation marks and cite omitted]. But

general causation, at least in scientifically complex

cases, is not such a fact. [Plaintiff] needs to prove,

through scientific evidence, that exposure to lead-

based paint can cause the injuries of which he