Burnett v. City of New York/New York City Department of Environmental Protection
- Ronnie Abrams
- 1:24-cv-08725
- U.S. District Court · Southern District of New York
- 2
In Burnett v. City of New York, Judge Cave granted reconsideration in part, allowing exhibits to remain for judicial-notice review during dismissal briefing.
Tracy Burnett and the City Defendants, including the City of New York/New York City Department of Environmental Protection, Cecil McMaster, Michael Shum, and Michael Weinberg. The ruling allows Burnett’s request for judicial notice of her exhibits to be considered with the motion to dismiss.
What happened
In Burnett v. City of New York/New York City Department of Environmental Protection, Tracy Burnett asked the court to reconsider an earlier order striking her declaration and more than 1,000 pages of exhibits.
The court had struck those materials because they were submitted late and without permission. The City Defendants did not oppose Burnett’s reconsideration motion.
Judge Sarah L. Cave granted the motion to the extent that the earlier order was vacated in part. The declaration and exhibits were no longer stricken, so Burnett’s request that the court take judicial notice of them could be considered along with the City Defendants’ motion to dismiss.
The detailed version
- Burnett v. City of New York/New York City Department of Environmental Protection · No. 1:24-cv-08725
- Ronnie Abrams
- Aug. 20, 2025
Background
The City of New York/New York City Department of Environmental Protection, Cecil McMaster, Michael Shum, and Michael Weinberg moved to dismiss Tracy Burnett’s complaint. While that motion was pending, Burnett filed a declaration from her counsel with ten exhibits totaling more than 1,000 pages and asked the court to take judicial notice of them. She filed the materials without notice to or permission from the court.
The City Defendants asked the court to strike the declaration and exhibits. On July 22, 2025, the court granted that request and struck the materials because they were untimely and Burnett had not sought permission to submit them. Burnett then moved for reconsideration, and the City Defendants did not oppose that motion.
Court’s reasoning
The court explained that, when deciding a motion to dismiss, it generally may consider only the complaint’s factual allegations, documents attached to or incorporated into the complaint, and matters appropriate for judicial notice. Requests to take judicial notice of outside documents are ordinarily considered when the court evaluates the motion to dismiss.
Ruling
The court granted Burnett’s reconsideration motion to the extent that it vacated the July 22 order in part. Burnett’s declaration and exhibits were no longer stricken, allowing her request for judicial notice of those exhibits to be considered together with the motion to dismiss. The court did not state that it was taking judicial notice of the exhibits or rule on the motion to dismiss. The clerk was directed to close the reconsideration-motion docket entry, ECF No. 79.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.