Every appellate attorney knows that appellate courts only review submissions that were presented to the trial court below (except in narrow circumstances) -- nothing outside of the record. The recent appeal in Walker v. City of New York really drives that point home, rejecting the plaintiff's request for the Court to take judicial notice of an affidavit filed in a submission that was unrelated to the motion on appeal.
The plaintiff in Walker was attempting to vacate a dismissal of his action. In support of the vacatur motion, the plaintiff failed to submit to the trial court an affidavit of a medical expert to opine on the merits of the malpractice action. To avoid the consequences of this failure, the plaintiff requested that the Court take judicial notice of a medical expert affidavit that was filed in support of a prior motion for leave to serve a late notice of claim. In an excellent discussion of judicial notice in the context of appellate review, the Appellate Division, Second Department refused to do so. The Court noted that the affidavit, which contained disputed facts, was not the type of factual material of which it could take judicial notice.
Thank you to the excellent blawg New York Legal Update for calling my attention to the appeal (see post here).
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