A basic rule of appeal proceedings is that the appeal record contains only documents that were before the trial court and that counsel may not refer to matters outside the record or to “Dehors” (Dehors) (see Citibank, NA v. Kerszko203 AD 3d 42, 53 [2d Dept. 2022]). Ultimately, the appeal is about a review of what has already happened and not a repetition of the court proceedings. For this reason, practitioners often succeed in striking off-file offending matters that are unlawfully included in files, pleadings, or appendices (see e.g. West 125Th St. Realty LLC v. Chosen Realty Corp.227 AD3d 431, 432 [1st Dept 2024]).
In addition, lawyers who report new developments at the hearing may be reprimanded. However, there are exceptions to the general rule.
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Matters outside of records
An appeal court may take judicial notice of certain facts (see Matter of Albany v. Kirby36 NY2d 526, 532 [1975]) and the laws referred to in CPLR 4511 and may take into account certain irrefutable documentary evidence (see Crawford v. Merrill Lynch, Pierce, Fenner & Smith35 NY2d 291, 298-300 [1974]). A further exception was created for cases where the welfare of children is at stake in custody proceedings. First pronounced in Matter of Michael B.80 NY2d 299, 317-318 (1992), this narrow exception has been applied in hundreds of cases since then. However, the case law is somewhat opaque as to the manner in which relevant matters should be presented to the Court of Appeal.
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