“Judicial Notice” is a process which may be used to have certain matters accepted at trial as established, without the necessity of formal proof. It comes in two forms: (1) judicial notice of facts; and (2) judicial notice of law. See generally, Guide to NY Evidence, Article 2; Federal Rule of Evidence 201.
Judicial Notice of Facts
As to judicial notice of fact, the New York Appellate Division, First Department, has explained:
A court may only apply judicial notice to matters of common and general knowledge, well established and authoritatively settled, not doubtful or uncertain. The test is whether sufficient notoriety attaches to the fact to make it proper to assume its existence without proof. The fact at issue must be generalized knowledge as is so notorious as not to be the subject of reasonable dispute.
Carter v Metro North Associates, No. 1873, 255 A.D.2d 251, 251, 680 N.Y.S.2d 239, 240, 1998 N.Y. Slip Op. 10266, 1998 WL 811335 (N.Y.A.D. 1 Dept., Nov. 24, 1998) (internal quotation marks, bracketing, and citations omitted) (holding that the lower court “erred in circumventing the requirement for evidence concerning the particular animal by purporting to take judicial notice of the vicious nature of the [pit bull dog] breed as a whole”).
Examples of items of which courts have taken judicial notice include the content of the Internet Movie Database (IMDb) (Piuggi v. Good for You Productions LLC, 2024 WL 3274638 n.10 (S.D.N.Y. July 2, 2024); decisions in underlying court proceedings (John J. Hop Wah v. Cyrus Vance, 2024 WL 3598441 (S.D.N.Y. July 30, 2024); etc.
A specific statute, CPLR 4532-b, governs judicial notice of certain information derived from web mapping services.
Judicial Notice of Law
Judicial notice of law is governed by New York Civil Practice Law and Rules (CPLR) 4511.
The New York Court of Appeals recently explained:
At common law, courts did not judicially notice foreign law. Rather, parties were required to plead and prove it as a matter of fact (see Croker v. Croker, 252 N.Y. 24, 26, 168 N.E. 450 [1929]; Hanna v. Lichtenhein, 225 N.Y. 579, 582, 122 N.E. 625 [1919]). In 1943, the legislature enacted former Civil Practice Act § 344–a, which allowed courts discretion to take judicial notice of the law of a sister state or foreign country. It made foreign law determinations questions of law for the judge to decide, rather than fact for the jury, providing that foreign law “shall be determined by the court or referee and included in its findings, or charged to the jury as the case may be” (former Civil Practice Act § 344–a). In 1963, former Civil Practice Act § 344–a was replaced by CPLR 4511. Subdivision (b) provides that “[e]very court may take judicial notice … of … the laws of foreign countries or their political subdivisions.” “Judicial notice shall be taken of [such] matters … if a party requests it, furnishes the court sufficient information to enable it to comply with the request, and has given each adverse party notice of [their] intention to request it” (CPLR 4511[b]). “Whether a matter is judicially noticed, or proof is taken, every matter specified in [CPLR 4511] shall be determined by the judge … [,] included in [their] findings or charged to the jury … [,][and] subject to review on appeal as a finding or charge on a matter of law” (id. § 4511[c]). “In considering whether a matter of law should be judicially noticed and in determining the matter of law to be judicially noticed, the court may consider any testimony, document, information[,] or argument on the subject, whether offered by a party or discovered through its own research” (id. § 4511[d]).
CPLR 4511 gives courts “substantial flexibility in determining whether to take judicial notice of foreign law and ascertaining its content” (Vincent C. Alexander, Practice Commentaries [McKinney’s Cons Laws of NY, CPLR C4511]). As the statutory language notes, a court must take judicial notice of foreign law upon request and if the court is furnished with sufficient information to do so; otherwise, a court may take judicial notice of foreign law in its discretion (see Lerner v. Karageorgis Lines, 66 N.Y.2d 479, 487–488, 497 N.Y.S.2d 894, 488 N.E.2d 824 [1985]). However, the actual content of foreign law is treated as a question of law (CPLR 4511[c]; Rosman v. Trans World Airlines, 34 N.Y.2d 385, 392, 358 N.Y.S.2d 97, 314 N.E.2d 848 [1974]; Gevinson v. Kirkeby–Natus Corp., 26 A.D.2d 71, 74, 270 N.Y.S.2d 989 [1st Dept. 1966]). Indeed, the “construction of foreign law is a legal question that may be appropriate for summary resolution when sufficient information based on documentary and other evidence is presented” (Sea Trade Mar. Corp. v. Coutsodontis, 111 A.D.3d 483, 484, 978 N.Y.S.2d 115 [1st Dept. 2013]; see also Rosman, 34 N.Y.2d at 392, 358 N.Y.S.2d 97, 314 N.E.2d 848).
A court should consider the merits of expert affidavits and other submitted materials, make a determination as to their sufficiency, and take judicial notice of foreign law as it deems appropriate. In making this “sufficiency” determination, a court must consider not just the materials submitted by the party making the request, but those materials provided by the non-requesting party in opposition, including contrary authority or material which supports their own request. While the court, in its discretion, might defer decision on the motion and choose to hold a hearing so that it may conduct additional inquiry into the foreign law question, we hold that such a hearing is not mandated as a matter of course. Nothing in the text of CPLR 4511 or other CPLR provisions purports to require a hearing when there is a dispute as to the content of foreign law so long as the court has “sufficient information” to determine that law without one. Indeed, the idea that a hearing is required and a motion to dismiss must be denied or deferred every time there is some dispute regarding foreign law contravenes CPLR 4511’s goal of treating foreign law as a legal issue, rather than a factual one. Nonetheless, a court taking judicial notice of foreign law should always endeavor to provide detailed findings as to what the law of the foreign jurisdiction is and how it applies to the case at hand in order to facilitate appellate review (see CPLR 4511[c]).
Eccles v. Shamrock Capital Advisors, LLC, No. 49, 2024 N.Y. Slip Op. 02841, 2024 WL 2331737 (N.Y. Ct. App. May 23, 2024) (upholding lower court’s determination that it had sufficient information to take judicial notice of Scots law).