During the bench trial of this action, the Court was called upon to rule on an objection to the use of extrinsic evidence during the cross-examination of Plaintiff's witness purportedly to contradict the response of the witness regarding findings on an unrelated action. Defendants' counsel sought to introduce a final judicial decision for the purpose of impeaching the credibility of the witness on a collateral matter. Plaintiff's counsel objected on the basis of the collateral evidence rule.

Plaintiff's witness was questioned during cross examination regarding findings made by the Bankruptcy Court based upon the witness' testimony in that unrelated case. Defendants' counsel offered a certified copy of the decision in that case "for credibility purposes", which counsel argued could be judicially noticed by this Court. The witness was not questioned about his own actions in allegedly signing false reports and causing "improper payment... in connection with debt... owed to the bank", but was asked whether the Bankruptcy Court had made such [*2]findings following a trial at which the witness had testified. Counsel was permitted to use the decision, which was not admitted in evidence, to refresh the witness' recollection concerning the finding of the Bankruptcy Court. When the witness resisted counsel's characterization of the purported findings, Defendants' Counsel offered the Bankruptcy Court's decision in evidence.

Although the Court may take judicial notice of prior judicial proceedings from another court involving different parties (Matter of Justin EE, 153 AD2d 772, 774 [3d Dept 1989]), where, as here, factual information is sought to be judicially noticed, such information must be relevant to the issues on trial. Counsel is not asking the Court to take judicial notice of the law, as would be required pursuant to CPLR 4511 (see Pfleuger v Pfleuger, 304 NY 148, 151 [1952]), but is seeking to use the factual determination of another tribunal on an unrelated matter solely to impeach the witness.

The general rule permits cross-examination "with respect to specific immoral, vicious, or criminal acts which have a bearing on the witness's credibility." (Badr v Hogan 75 NY2d 629, 634 [1990] citing People v Schwartzman, 24 NY2d 241 [1969]). However, where the witness denies wrongdoing, although he or she may be questioned further, extrinsic evidence is not admissible to prove the collateral facts raised. (Id. at 252-254). As in Badr, Defendants' Counsel did not merely continue to question the witness, but sought to introduce, through judicial notice, factual determinations totally unrelated to the matter before this Court. In fact, Defendants' counsel did not even directly ask the witness about his own actions, but, in an attempt to evade the collateral evidence rule, questioned the witness about a specific ruling in the bankruptcy proceeding and sought to introduce a certified copy of the Bankruptcy Judge's decision upon the witness's challenge to counsel's characterization of the ruling, essentially eliciting hearsay evidence regarding collateral facts through the findings of the Bankruptcy Court. Defendants' counsel was permitted to use the decision solely to refresh the witness' recollection, as is permissible, but the decision itself is clearly inadmissable as extrinsic proof offered for the sole purpose of contradicting testimony on a collateral issue. (See Badr v Hogan). Plaintiff's objection is sustained.

ENTER,

Carolyn E. Demarest

J. S. C.