C. v. New York State and Local Retir

Filing 89

REPLY TO OPPOSITION [84], on behalf of Appellant Mary Jo C., FILED. Service date 09/14/2011 by CM/ECF.[391121][89] [11-2215]

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

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X

MARY JO C.
Plaintiff-Appellant,
-against-

REPLY DECLARATION
Docket No. 11-2215

NEW YORK STATE AND LOCAL
RETIREMENT SYSTEM,
CENTRAL ISLIP PUBLIC LIBRARY,
Defendants-Appellees.

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X

WILLIAM M. BROOKS, certifies the truth of the following pursuant
to 28 U.S.C. § 1746:
1.

I am the attorney for plaintiff-appellant Mary Jo C. and submit

this reply declaration in response to the declaration in opposition by Harris
Zakarin ("Zakarin Decl."), the attorney for the Central Islip Public Library
("Library"), and in further support the appellant's motion for leave to file a
supplemental appendix consisting of the minutes of a state administrative
proceeding relevant to this lawsuit.
2.

The Library argues that while a court may take judicial notice

regarding proceedings that took place before a state administrative tribunal,
it may not do so to establish the truth of the matter. Zakarin Decl., T[ 19
(citing Network Communications, Inc. v. City ofNew York, 458 F.3d 150,

157 (2d Cir. 2006). In Network Cbmmunications, this Court held that it may
not take judicial notice of the truth of the matter set forth in the other legal
proceeding, but may for the purpose of determining what was stated in the
other proceeding. See id.
3.

The appellant seeks to provide material from the administrative

proceeding in question to permit this Court to take judicial notice of
statements made in that proceeding, a purpose that the Library acknowledges
is proper. The proceeding below was a motion to dismiss at the pleading
stage.

At this stage, the district court was not concerned with the truth of

any allegations; only that allegations were made. Hence, what are relevant
are allegations about the extent of the disability from which appellant Mary
Jo C. suffered. Thus, statements made in the administrative proceeding
about the extent of the disability from which Mary Jo C. suffered are matters
of which this Court may take judicial notice, as they are allegations only.
4.

Furthermore, the Library first opposes the inclusion of the

minutes of the state administrative proceeding on the ground that
Fed.R.App.P. 30 does not authorize the inclusion of the minutes from the
joint appendix. However, the Library is apparently aware that the joint
appendix may include matters not expressly authorized by the Rules of
Appellate Procedure. This is so because Fed.R.App.P. 30(a)(2) specifically

excludes from the joint appendix memoranda of law unless they have
independent relevance. However, the Library asked to have the memoranda
of law submitted below included as part of the joint appendix. The appellant
acceded to this request.
5.

Finally, the Library argues that no precedent exists for filing a

supplemental appendix for judicially noticed material. However, it is wellsettled that a party may file a supplemental appendix. See, e.g., Salama v.
Our Lady of Victory Hosp., 5 14 F.3d 2 17,222 (2d Cir. 2008); Lucaj v.
Gonzalez, 425 F.3d 203,206 (2d Cir. 2005); McCann v. Royal Group, 77
Fed. Appx. 552, 554 (2d Cir. 2003); City of New York v. Minetta, 262 F.3d
169, 175 (2d Cir. 2001). No one will seriously dispute that an appendix
contains matters arguably pertinent for resolution of any appeal that is before
this Court. If these are matters of which this Court may take judicial notice,
no reason exists for excluding them.
WHEREFORE, I respectfully request that this Court grant leave to the
appellant to file a supplemental appendix that consists of the minutes of an
administrative proceeding of which this Court can, and may choose to, take
judicial notice.
Dated: Central Islip, New York
September 14,2011

L A% M. BROOKS
L /i
WILLIAM
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