Can the parties to an appeal stipulate to omit matter from or add matter to the material that constitutes the record on appeal from an order or judgment?
The content of the record on appeal is fixed by CPLR 5526 and the parties cannot stipulate to add to or subtract from the material specified by the statute. The parties may stipulate to omit the reproduction of exhibits in a printed record or appendix but the originals of those exhibits, unless of a bulky or dangerous nature, must be filed with the clerk at the time the appellant’s brief is filed (22 NYCRR 670.10.2[b][6]). Only the material specified in CPLR 5526 may be included in a printed record or appendix; the parties may not add to a record or appendix any matter that was not before the court of original instance and considered by it in making the order or judgment appealed from. In very limited circumstances a motion may lie to expand the record to take cognizance of documentary evidence, the existence and accuracy of which is not or cannot be disputed, or to take judicial notice of matters of public record (see Brandes Meat Corp. v Cromer, 146 AD2d 666, 667).
