Legal Question in Appeals and Writs in New York

Re: what facts can be included with an appeal to the second department

New facts that have not been presented to the court below (i.e., the trial-level court, known in New York as the Supreme Court) CANNOT be presented to the Second Department (or any appellate-level court) by either party. All facts discussed in the briefs or at oral argument must appear in the record on appeal. The record on appeal is limited to the documents and testimony that were before the court that made the original decision that is the subject of the appeal. If the appeal follows a trial, it is generally necessary to order a copy of the trial transcript so that it may be included in the record. Also, when discussing facts in your brief, each factual statement must be supported by a citation to the record, in the form of "R __." (For example: The plaintiff testified that he was going 35 mph when his vehicle was struck by a red car. (R. 43) Jim Smith, an accident reconstruction expert, testified that the skid marks at the accident scene were consistent with an impact occurring at between 30-40 mph. (R. 104)).