In an interim order, a judge (Julian, J.) took judicial notice of scientific evidence concerning secondhand tobacco smoke to justify a conclusion that it is “a dangerous carcinogen and poses other significant health risks sufficient to order that both parents maintain a smoke-free environment.” The 13-year-old son, Nicholas, had complained about maternal smoking during his court-ordered visitations. Citing the child’s exposure to secondhand smoke as putting him “at increased risk to develop asthma, reduced lung function, coronary artery disease, lung cancer, and respiratory disorders,” the court issued an order “to the extent practical that each parent maintain a smoke-free environment for Nicholas at all times in home and car, and wherever possible and practical, in other circumstances.” See Caher, J., “Court Bars Mom From Smoking Around Child,” New York Law Journal, March 25, 2002, 1.
In a case renamed DeMatteo v. DeMatteo, Supreme Court of New York, Oneida County, 749 N.Y.S. 2d 671, 2002 N.Y. Misc. LEXIS 1324, the plaintiff “opposed the proposed judicial notice and demanded a hearing, submitting certain documentary evidence to support her position that the Court should not take judicial notice of the articles, texts, and medical facts proposed in said Decision and Interim Order.” In an order dated October 9, 2002, the court concluded that § 1399 of the Public Health Law, which was enacted in 1989, declares ETS to be a public health risk. “Because the 1986 Report of the Surgeon General was extensively relied upon by the New York State Legislature and the Governor, the Court takes Judicial Notice of those specific facts and conclusions quoted above in the Memorandum of Approval.” However, the “Plaintiff should be entitled to dispute the decade-old finding by the Legislature with subsequently developed scientific facts, but the Plaintiff will have the burden of proof.” The “Court holds pending a hearing, that the best interests of this child are served by limiting his exposure to ETS.” See Caher, J., “Mother Has Right to Dispute Evidence of Health Hazard from Second-Hand Smoke,” New York Law Journal, October 22, 2002, 1.
(Sup. Ct. Oneida Co. (NY) 2002). 740 N.Y.S.2d 811, 2002 N.Y. Misc. LEXIS 164, 2002 WL 465079, 17.2 TPLR 2.123.