Opinion
EC2020-31880
10-26-2020
A.S., Plaintiff, v. Adirondack Camp, Defendant. Herman Law, New York (Jeff Herman of counsel), for plaintiff. E. Stewart Jones Hacker Murphy, LLP, Troy (James E. Hacker of counsel) for defendant.
Plaintiff moves by Order to Show Cause for leave to file and prosecute a complaint using an initials-only designation on the grounds that this action, brought pursuant to the New York Child Victims Act (hereinafter the CVA) (see CPLR § 214-g), alleges child sexual abuse and discloses matters of "the utmost intimacy." Defendant opposes the motion and cross-moves to seal the court records pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 216.1 and, or, grant anonymity to defendant.
Plaintiff's motion is supported with counsel's affirmation, which is devoid of any personal knowledge. The Court has, however, reviewed the unverified complaint which alleges that plaintiff "fears embarrassment and further psychological damage if his identity . . . were to become publicly known," and notes this matter arises from the alleged sexual assault of plaintiff, then a minor, by an employee of defendant summer camp. Counsel's supporting affirmation does indicate, however, they shall disclose the plaintiff's full name to defendant - intending to conceal the identity from the public only.
Since prior to the enactment of the CVA, a party seeking anonymity has been required to provide evidence corroborating the allegations in support of such request (see People v P.V., 64 Misc 3d 344, 345 n 1 [Crim Ct, Queens County 2019]; Deer Consumer Prods., Inc. v Little, 35 Misc 3d 374, 390 [Sup Ct, NY County 2012]; see also Doe v Stegall, 653 F 2d 180, 186 [5th Cir 1981]; Doe v Smith, 105 F Supp 2d 40, 43-44 [ED NY 1999]). In HCVAWCR-Doe v Roman Catholic Archdiocese of NY (68 Misc 3d 1215[A], 2020 NY Slip Op 50966[U] [Sup Ct, Westchester County 2020]), the Court expounds upon this requirement, stating as follows:
"[T]o be granted anonymity, a plaintiff must present the merits of their claim and their specific reasons for seeking anonymity. This requires more than a bare-bones affidavit with little or no detail regarding plaintiff's contacts with the county of venue or the immediate vicinity, and the other specified factors. The minimal threshold to be met requires plausible and actual, not speculative harm, and the unique personal reasons that
the plaintiff should not disclose his or her identity to the public. That does not mean giving the horrendous details of the alleged sexual abuse for the application, but it does require some real facts about the plaintiff's current circumstances - where he or she lives, and social circumstances, employment, family, and other information, if relevant. The mere fact that the plaintiff has a relative of unspecified sanguinity who lives in or near the county of venue, is of little or no value to the court. The mere fact that the internet exists, is also of no value to the court. On the other hand, a highly compelling factor might be that the plaintiff has a child or grandchild currently in the school system or church parish in which the abuse arose" (id. at 3-4; see Applehead Pictures, LLC v Perelman, 80 AD3d 181, 192 [2010]; Anonymous v Anonymous, 27 AD3d 356, 361 [2006]; Doe v Good Samaritan Hosp., 66 Misc 3d 444, 446-447 [Sup Ct, Nassau County 2019]; Doe v New York & Presbyt. Hosp., 2018 NY Slip Op 31587[U], *3 [Sup Ct, NY County 2018]; Doe v Roman Catholic Archdiocese of New York, 64 Misc 3d 1220[A], 2019 NY Slip Op 51216[U], *4 [Sup Ct, Westchester County 2019]; Doe v McFarland, 66 Misc 3d 604, 613 [Sup Ct, Rockland County 2019]).
This evidentiary showing is necessary for the Court to balance - as it must - " 'plaintiff's privacy interest against the presumption in favor of open trials and against any prejudice to defendant' " (Doe v Roman Catholic Archdiocese of New York, 2019 NY Slip Op 51216[U] at *4, quoting Anonymous v Lerner, 124 AD3d 487, 487 [2015] [internal quotation marks and citations omitted]; see Doe v Szul Jewelry, Inc., 2008 NY Slip Op 31382[U], *15 [Sup Ct, NY County 2008]). In this regard, it must be noted "' 'that the primary function of a pleading is to apprise an adverse party of the pleader's claim[ and a]bsent such notice, a defendant is prejudiced by its inability to prepare a defense to the plaintiff's allegations' " (Doe v Roman Catholic Archdiocese of New York, 2019 NY Slip Op 51216[U] at *4, quoting Cole v Mandell Food Stores, Inc., 93 NY2d 34, 40 [1999] [internal quotation marks and citations omitted]). The rationale then "for the disclosure of a plaintiff's name in a complaint . . . is grounded in the basic due process rights of notice and an opportunity to be heard" (Doe v Roman Catholic Archdiocese of New York, 2019 NY Slip Op 51216[U] at *4-5).
Here, plaintiff has failed to offer any specific evidence that proceeding publicly would create fear, embarrassment, and further psychological damage. The Court finds this threadbare submission derisive of the basic due process rights of notice and an opportunity to be heard and, as such, declines to find that plaintiff's privacy interest outweighs the presumption in favor of open trials and potential prejudice to defendant. The motion is therefore denied - without prejudice - the Court informed by the astute reflection that "[i]n all practices there is a bonus for the litigant who leaves time for trouble" (David D. Siegel & Patrick M. Connors, New York Practice § 231A at 442 [6th ed 2018]).
The cross motion is likewise denied without prejudice.
NOW, upon the foregoing analysis and upon review of the Affirmation of Jeff Herman, Esq., dated July 29, 2020 and accompanied by the unverified summons and complaint, and the opposing Affidavit also in support of the cross motion of James E. Hacker, Esq., sworn to August 24, 2020, and the opposing Affidavit of Shawn Carraher, sworn to August 22, 2020 it is hereby
ORDERED that plaintiff's motion is denied without prejudice; and it is further
ORDERED that, in the event plaintiff has not already done so, plaintiff is to divulge his or her legal name and other pertinent identifying information to defendant within ten (10) days of service of this Decision and Order with notice of entry thereon; the entry into NYSCEF of this Decision and Order; and it is further
ORDERED that defendant's cross motion is denied without prejudice; and it is further ORDERED that any relief not specifically addressed has nonetheless been considered and is expressly denied.
The above constitutes the Decision and Order of this Court.
The original of this Decision and Order has been e-filed by the Court. Counsel for defendant is directed to obtain a filed copy of the Decision and Order for service with notice of entry upon counsel for plaintiff in accordance with CPLR 5513. Dated: October 26, 2020 Lake George, New York __________s/__________ ROBERT J. MULLER, J.S.C. ENTER: