Summary
In Anonymous v Lerner (124 AD3d 487 [4th Dept 2015]) the court acknowledged that "plaintiff's allegations concerning the negligent and fraudulent transmission of genital herpes, a sexually transmitted disease, implicates a substantial privacy right" (id, citing Jane Doe.1 v CBS Broadcasting, Inc., 24AD3d 215 [1st Dept 2005]).
Summary of this case from Doe v. YoungOpinion
2015-01-20
ANONYMOUS, Plaintiff–Appellant, v. William LERNER, Defendant–Respondent.
Levine & Blit, PLLC, New York (Matthew J. Blit of counsel), for appellant. Cohen Clair Lans Greifer & Thorpe LLP, New York (Robert S. Cohen of counsel), for respondent.
Levine & Blit, PLLC, New York (Matthew J. Blit of counsel), for appellant. Cohen Clair Lans Greifer & Thorpe LLP, New York (Robert S. Cohen of counsel), for respondent.
Order, Supreme Court, New York County (Debra A. James, J.), entered March 12, 2014, which granted defendant's motion to compel plaintiff to be named in the action, unanimously affirmed, without costs.
While plaintiff's allegations concerning the negligent and fraudulent transmission of genital herpes, a sexually transmitted disease, implicates a substantial privacy right ( cf. ‘ ‘J. Doe No. 1” v. CBS Broadcasting, Inc., 24 A.D.3d 215, 806 N.Y.S.2d 38 [1st Dept.2005] ), “the trial court should ... exercise its discretion to limit the public nature of judicial proceedings ‘sparingly’ and ‘then, only when unusual circumstances necessitate it’ ” (Anonymous v. Anonymous, 27 A.D.3d 356, 361, 814 N.Y.S.2d 21 [1st Dept.2006] [citation omitted] ).
The determination of whether to allow a plaintiff to proceed anonymously requires the court to “use its discretion in balancing plaintiffs privacy interest against the presumption in favor of open trials and against any potential prejudice to defendant” (Stevens v. Brown, 2012 N.Y. Slip Op. 31823[U], 2012 WL 2951181, *9 [Sup.Ct., N.Y. County 2012], citing Doe v. Szul Jewelry, Inc., 2008 N.Y. Slip Op. 31382[U], at 15 [Sup.Ct., N.Y. County May 13, 2008] ).
The trial court did not improvidently exercise its discretion in finding that plaintiff's privacy concerns were outweighed by, inter alia, the fact that the action was brought against an individual defendant, relates to his private life and reputation, and puts plaintiff's credibility at issue ( see Doe v. Shakur, 164 F.R.D. 359, 361 at n. 1 [S.D.N.Y.1996]; cf. Doe v. Szul Jewelry, Inc., 2008 N.Y. Slip Op. 31382[U] [Sup.Ct., N.Y. County 2008] ), and undermined by her reporting her story to the media before serving defendant with process ( see Doe v. Kidd, 19 Misc.3d 782, 789, 860 N.Y.S.2d 866 [Sup.Ct., N.Y. County 2008] ). “[C]laims of public humiliation and embarrassment ... are not sufficient grounds for allowing a plaintiff ... to proceed anonymously” (Doe v. Shakur, 164 F.R.D. at 362; Doe v. New York Univ., 6 Misc.3d 866, 879, 786 N.Y.S.2d 892 [Sup.Ct., N.Y. County 2004]; cf. Doe v. Kolko, 242 F.R.D. 193 [E.D.N.Y.2006] ). TOM, J.P., SAXE, FEINMAN, CLARK, KAPNICK, JJ., concur.