CPLR R. 4511(b) When judicial notice may be taken without request; when it shall be taken on request.
Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 2009 NY Slip Op 00351 (App. Div., 2nd)
We are asked to determine whether the definition of diagnosis and
procedure codes adopted by the United States Department of Health and
Human Services (hereinafter HHS) as part of its regulatory authority
may be a proper subject for judicial notice under CPLR 4511. If so, we
must also determine whether the defined diagnostic codes, in and of
themselves, permit a finding that a patient's hospital care and
treatment is wholly outside the scope of no-fault automobile coverage.
Until now, we are not aware of any appellate court that has addressed
the issue of whether the diagnosis and procedure codes key of the
United States. government can be judicially noticed by courts, so that
it may then be used to decipher no-fault billing forms.…
CPLR 4511(b) provides that upon request of a party, a court may take
judicial notice of federal, state, and foreign government acts,
resolutions, ordinances, and regulations, including those of their
officers, agencies, and governmental subdivisions. While the concept of
judicial notice is elastic (see Richardson on Evidence § 52
[10th ed]) and applicable to a wide range of subject matter, official
promulgations of government appear to be particularly appropriate for
judicial notice, given the manner that CPLR 4511 expressly singles them
out for such treatment.
Judicial notice has never been strictly limited to the
constitutions, resolutions, ordinances, and regulations of government,
but has been applied by case law to other public documents that are
generated in a manner which assures their reliability. Thus, the
concept has been applied to census data (see Affronti v Crosson, 95 NY2d 713, 720; Buffalo Retired Teachers 91-94 Alliance v Board of Educ. for City School Dist. of City of Buffalo, 261 AD2d 824, 825; Mackston v State of New York, 126 AD2d 710), agency policies (see Matter of Albano v Kirby, 36 NY2d 526, 532), certificates of corporate dissolution maintained by the Secretary of State (see Brandes Meat Corp. v Cromer, 146 AD2d 666, 667), the resignation of public officials (see Matter of Soronen v Comptroller of State of N.Y., 248 AD2d 789, 791; Matter of Maidman, 42 AD2d 44, 47), legislative proceedings (see Outlet Embroidery Co. v Derwent Mills, 254 NY 179, 183), legislative journals (see Browne v City of New York, 213 App Div 206, 233), the consumer price index (see Sommers v Sommers, 203 AD2d 975, 976; City of Hope v Fisk Bldg. Assoc., 63 AD2d 946, 947), the location of real property recorded with a clerk (see Andy Assoc. v Bankers Trust Co., 49 NY2d 13, 23-24), death certificates maintained by the Department of Health (see Matter of Reinhardt, 202 Misc 424, 426), and undisputed court records and files (see e.g. Perez v New York City Hous. Auth., 47 AD3d 505; Walker v City of New York, 46 AD3d 278, 282; Matter of Khatibe v Weill, 8 AD3d 485; Matter of Allen v Strough, 301 AD2d 11, 18). Even material derived from official government websites may be the subject of judicial notice (see Munaron v Munaron, 21 Misc [*5]3d 295 [Sup Ct Westchester County 2008]; Parrino v Russo, 19 Misc 3d 1127[A] [Civ Ct Kings County 2008]; Nairne v Perkins, 14 Misc 3d 1237[A] [Civ Ct Kings County 2008]; Proscan Radiology of Buffalo v Progressive Cas. Ins. Co., 12 Misc 3d 1176[A] [Buffalo City Ct 2006]).
White Plains Hospital argues that the code key available on the
HHS website does not qualify for judicial notice, by relying upon the
language of this Court in Ptasznik v Schultz (247 AD2d 197). In Ptasznik, then-Justice
Albert Rosenblatt defined the test for judicial notice as "whether the
fact rests upon knowledge or sources so widely accepted and
unimpeachable that it need not be evidentiarily proven" (id. at 198, citing Hunter v New York, Ontario & W.R.R. Co., 116
NY 615). White Plains Hospital maintains that code numbers which
require deciphering do not constitute general information widely
accepted by the average lay person. However, Ptasznik discusses
specifically, and the universe of case law recognizes generally, two
disjunctive circumstances where information may be judicially noticed.
The first is when information "rests upon knowledge [that is] widely accepted" (Ptasznik v Schultz, 247 AD2d at 198 [emphasis added]) such as calendar dates, geographical locations, and sunrise times (id. at 198). The second "rests upon . . . sources [that are] widely accepted and unimpeachable" (id. [emphasis added]), such as reliable uncontested governmental records.
Here, the diagnosis and procedure codes key maintained by the
United States Government on its HHS website is of sufficient
authenticity and reliability that it may be given judicial notice. The
accuracy of the codes key is not contested by White Plains Hospital,
and is not subject to courtroom factfinding (see Affronti v Crosson, 95
NY2d at 720). The fact that the code system might not be readily
understood by the lay public is of no significance, as the information
is proffered for judicial notice not on the basis of being generally
understood by the public, but rather, on the basis of its reliable
We hold, therefore, that the diagnosis and procedure codes key
published by the United States Government on its HHS website may
properly be given judicial notice (see CPLR 4511[b]), as the key is reliably sourced and its accuracy not contested.
The bold is mine.