Marshall v Fleming, 2018 NY Slip Op 03441 [1st Dept. 2018]

We take judicial notice of the subsequent decisions in the Australian action, the contents of which are undisputed (see CPLR 4511[b]; Matter of Kevin McK. v Elizabeth A.E., 111 AD3d 124, 133 [1st Dept 2013]). The decisions reflect that on August 24, 2017, the New South Wales Supreme Court (Payne, J.), issued a posttrial verdict in defendants' favor, dismissed the amended statement of claim, and directed plaintiffs to pay defendants' costs of the proceedings (see Marshall v Fleming [2017] NSWSC 1107). By order dated December 5, 2017, Justice Payne, inter alia, directed plaintiffs to pay defendants' costs of the trial, 50% of the costs of defendants' September 7, 2017 motion, and the costs of defendants' October 23, 2017 motion (see Marshall v Fleming, [No 2] [2017] NSWSC 1679).


Medical Reports: 22 NYCRR 202.17 [Ct. App.]

CPLR 3121(a)

CPLR 3101

CPLR 4411

22 NYCRR 202.17(b)(1)

Hamilton v Miller, 2014 NY Slip Op 04230 [2014]

In most personal injury cases, disclosure under this rule is straightforward. The injured plaintiff goes to the doctor for diagnosis and treatment. The doctor drafts a report. The plaintiff turns over the report to the defendant.

This case is more complicated. Plaintiffs allegedly suffered lead poisoning as children. Now adults, plaintiffs allege that their childhood exposure to lead caused them numerous injuries. It appears from the dearth of medical evidence in the record that plaintiffs may never have been treated for or diagnosed with many of the alleged injuries. This raises the question of what plaintiffs must disclose in order to comply with rule 202.17 (b) (1).

Plaintiffs argue that the rule requires them to turn over only those reports that currently exist from providers who have "previously treated or examined" them. They argue that they are not required to document or create medical evidence of every alleged injury. To the extent that plaintiffs are arguing that the rule does not obligate them to hire a medical provider to examine them and create a report solely for purposes of the litigations, we agree. Requiring a personal injury plaintiff to hire a medical professional to draft a report purely to satisfy 22 NYCRR 202.17 (b) (1) could make it prohibitively expensive for some plaintiffs to bring legitimate personal injury suits. Some plaintiffs may not be able to afford a medical examination or may not even have access to a doctor. Plaintiffs therefore need only produce reports from medical providers who have "previously treated or examined" them.

To the extent, however, that plaintiffs claim that they need to turn over only those medical reports that currently exist, we disagree. The rule obligates plaintiffs to provide comprehensive reports from their treating and examining medical providers — the reports "shall include a recital of the injuries and conditions as to which testimony will be offered at the trial" (22 NYCRR 202.17 [b] [1]) [emphasis added]). Plaintiffs therefore cannot avoid disclosure simply because their treating or examining medical providers have not drafted any reports within the meaning of rule 202.17 (b) (1) (see Ciriello v Virgues, 156 AD2d 417, 418 [2d Dept 1989] ["[T]he fact that a report never was prepared does not obviate the party's obligation under the rules"]; Davidson v Steer/Peanut Gallery, 277 AD2d 965, 965 [4th Dept 2000]; Pierson v [*3]Yourish, 122 AD2d 202, 203 [2d Dept 1986]). If plaintiffs' medical reports do not contain the information required by the rule, then plaintiffs must have the medical providers draft reports setting forth that information (see id.)[FN2]. If that is not possible, plaintiffs must seek relief from disclosure and explain why they cannot comply with the rule (see 22 NYCRR 202.17 [j]).

We conclude therefore that Supreme Court abused its discretion in requiring plaintiffs to provide medical evidence ofeach alleged injury or otherwise be precluded from offering evidence of that injury at trial. Supreme Court's motivation for granting that relief is understandable. Plaintiffs' counsel filed boilerplate bills of particulars and then did not disclose medical records substantiating the alleged injuries. To that end, plaintiffs should amend their respective bills of particulars to reflect those injuries actually sustained. Nonetheless, although Supreme Court had wide, inherent discretion to manage discovery, foster orderly proceedings, and limit counsel's gamesmanship (see Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954 [1998]), the ordered relief exceeded the court's power.

Supreme Court also granted relief beyond that contemplated by rule 22 NYCRR 202.17 (b) (1) by requiring plaintiffs to produce, prior to the defense examination, a medical report causally relating plaintiffs' injuries to lead paint exposure or be precluded from offering proof of such injuries at trial. The rule requires that the medical reports "include a recital of the injuries and the conditions as to which testimony will be offered at the trial, . . . including a [*4]description of the injuries, a diagnosis, and a prognosis." There is no requirement that medical providers causally relate the injury to the defendant's negligence or, in this case, the lead paint exposure.

If determining causation requires evidence from a medical professional, causation is more appropriately dealt with at the expert discovery phase and pursuant to CPLR 3101 (d). If defendants wish to expedite expert discovery, they can move in Supreme Court for amendment of the scheduling orders. Should plaintiffs fail to produce any evidence of causation, then defendants can move for and obtain summary judgment.

Supreme Court properly denied plaintiff Hamilton's CPLR 4511 motion to take judicial notice of 42 USC § 4851. That provision contains Congress's findings justifying legislation aimed at reducing lead — findings such as: "at low levels, lead poisoning in children causes intelligence quotient deficiencies, reading and learning disabilities, impaired hearing, reduced attention span, hyperactivity, and behavior problems;" and "the Federal Government must take a leadership role in building the infrastructure—including an informed public, State and local delivery systems, certified inspectors, contractors, and laboratories, trained workers, and available financing and insurance—necessary to ensure that the national goal of eliminating lead-based paint hazards in housing can be achieved as expeditiously as possible" (42 USC § 4851 [2], [8]). Hamilton apparently sought judicial notice of the federal provision in order to avoid having to prove general causation — that lead paint exposure can cause some or all of his alleged injuries.

CPLR 4511 allows a court to take notice of federal and foreign state law, not facts, that is relevant to a proceeding (CPLR 4511; Pfleuger v Pfleuger, 304 NY 148, 151 [1952]). The congressional findings in support of legislation seeking to reduce amounts of lead in homes, though codified in a federal statute, are not "law" that is relevant to Hamilton's case. Taking judicial notice of them under CPLR 4511 would be inappropriate.

What Hamilton 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" (People v Jones, 73 NY2d 427, 431 [1989] [internal quotation marks omitted]). But general causation, at least in scientifically complex cases, is not such a fact. Hamilton needs to prove, through scientific evidence, that exposure to lead-based paint can cause the injuries of which he complains (see Parker v Mobile Oil Corp., 7 NY3d 434, 448 [2006]). He cannot avoid that burden simply because Congress, in statutory preambles, has opined on the dangers of lead-based paint.Accordingly, in each case, the order of the Appellate Division should be modified, without costs, by remitting to Supreme Court for further [*5]proceedings in accordance with this opinion and, as so modified, affirmed, and the certified question answered in the negative.

Judicial Notice CPLR 4511

CPLR R. 4511(b) When judicial notice may be taken without request; when it shall be taken on request.

Mendoza v Mortlen Realty Corp., 2011 NY Slip Op 07520 (1st Dept., 2011)

The evidence submitted by defendants in opposition to the motion was insufficient to raise a factual issue to defeat summary judgment. Although defendants contend that the court improperly considered documents submitted by plaintiffs to rebut the argument that the building is not a multiple dwelling because they were unauthenticated and/or uncertified, defendants failed to preserve this issue for appellate review (see DiLeo v Blumberg, 250 AD2d 364, 366 [1998]). Were we to review this issue, we would find that the motion court properly considered the certificate of occupancy as well as printouts from the website of the New York City Department of Housing Preservation and Development which established that the building had been classified as a multiple dwelling (see CPLR 4511(b); Elkaim v Elkaim, 176 AD2d 116 [1991], appeal dismissed 78 NY2d 1072 [1991]).

CPLR R. 4511(b)

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.