In re Scuderi

Appellate Division of the Supreme Court of New York

In re Scuderi

247 A.D.2d 393, 668 N.Y.S.2d 472, 1998 N.Y. App. Div. LEXIS 883

Appellate Division of the Supreme Court of the State of New York·Decided February 2, 1998·Published·Cited by 4 cases

Opinion

Motion by Elizabeth Scuderi-Apuzzo on appeals from three orders of the Surrogate’s Court, Nassau County, all dated October 17, 1996, to strike from the appellant’s reply brief the last paragraph at the bottom of page 1, the second paragraph of page 9 (including footnote number 2) through the first full paragraph of page 10, footnote number 4 on page 13, and the entire appendix attached to the reply brief, on the ground that this material refers to matter dehors the record. By decision and order on [394]*394motion of this Court dated June 5, 1997, the motion was held in abeyance and referred to the Justices hearing the appeals for determination upon the argument or submission of the appeals.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeals, it is

Ordered that the motion is granted, and the above mentioned portions of the brief and appendix are deemed stricken and have not been considered in the determination of the appeals.

While this Court may take judicial notice of matters of public record (see, Matter of Chasalow v Board of Assessors, 176 AD2d 800; Brandes Meat Corp. v Cromer, 146 AD2d 666), it would be improper to consider evidence of the shareholder’s derivative action commenced by the respondents herein after the issuance of the orders which are the subject of those appeals (see, Gintell v Coleman, 136 AD2d 515; Allstate Ins. Co. v Hertz Corp., 119 AD2d 612).

Joy, J. P., Krausman, Florio and Mc-Ginity, JJ., concur.

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Motion by Elizabeth Scuderi-Apuzzo on appeals from three orders of the Surrogate’s Court, Nassau County, all dated October 17, 1996, to strike from the appellant’s reply brief the last paragraph at the bottom of page 1, the second paragraph of page 9 (including footnote number 2) through the first full paragraph of page 10, footnote number 4 on page 13, and the entire appendix attached to the reply brief, on the ground that this material refers to matter dehors the record. By decision and order on [394]*394motion of this Court dated June 5, 1997, the motion was held in abeyance and referred to the Justices hearing the appeals for determination upon the argument or submission of the appeals.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeals, it is

Ordered that the motion is granted, and the above mentioned portions of the brief and appendix are deemed stricken and have not been considered in the determination of the appeals.

While this Court may take judicial notice of matters of public record (see, Matter of Chasalow v Board of Assessors, 176 AD2d 800; Brandes Meat Corp. v Cromer, 146 AD2d 666), it would be improper to consider evidence of the shareholder’s derivative action commenced by the respondents herein after the issuance of the orders which are the subject of those appeals (see, Gintell v Coleman, 136 AD2d 515; Allstate Ins. Co. v Hertz Corp., 119 AD2d 612).

Joy, J. P., Krausman, Florio and Mc-Ginity, JJ., concur.

In re Scuderi, 247 A.D.2d 393, 668 N.Y.S.2d 472, 1998 N.Y. App. Div. LEXIS 883 (N.Y. Ct. App. 1998).

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