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Elliott Scheinberg Elliott Scheinberg

A memorandum of law has no evidentiary value and may only be included in the record on appeal as evidence of issue preservation. DiLorenzo v. Windermere Owners, 2020 NY Slip Op 06837 (2020) and DiLorenzo v. Windermere Owners, 189 A.D.3d 664 (1st Dept. 2020), bring up that a memorandum of law may preserve an issue for appeal. By way of background, a line of cases from the Fourth Department has held that “a memorandum of law has no evidentiary value and, indeed, is properly included in a record on appeal for the sole purpose of establishing that an issue has been preserved for [appellate] review.” Brown v. Smith, 85 A.D.3d 1648, 1649 (4th Dept. 2011). Byrd v. Roneker, 90 A.D.3d 1648, 1649 (4th Dept. 2011); Lloyd v. Town of Greece Zoning Bd. of Appeals (Appeal No. 2), 292 A.D.2d 818 (4th Dept. 2002). “Unsworn allegations of fact in a memorandum of law are without probative value and no issue of preservation of a legal issue is presented,” for which reason “the court properly settled to exclude the plaintiff’s memorandum of law.” Zawatski v. Cheektowaga-Maryvale Union Free School Dist., 261 A.D.2d 860 (4th Dept. 1999), lv. denied 94 N.Y.2d 754 (1999).

Recently, in Town of W. Seneca v. Kideney Architects, P.C., 187 A.D.3d 1509 (4th Dept. 2020), the Fourth Department held that Supreme Court erred in denying that branch of the motion to settle the record on appeal in that the court excluded, inter alia, “the memoranda of law, which may be included only for the limited purpose of determining whether the contentions on appeal are preserved for [appellate] review.”

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