Opinion
EC2020-31880
02-26-2021
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.
Herman Law, New York (Jeff Herman of counsel), for plaintiff. E. Stewart Jones Hacker Murphy, LLP, Troy (James E. Hacker of counsel) for defendant. Robert J. Muller, J.
Plaintiff moves to renew this Court's denial of 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 at defendant's business — a private, as opposed to governmental entity — in the summer of 1988, and discloses matters of "the utmost intimacy." By prior Order this Court denied the requested relief because it was supported only with counsel's affirmation and an unverified complaint, neither of which provided any personal knowledge of the facts presented therein. Conspicuously absent was plaintiff's own affidavit.
This denial was without prejudice to renew, with a cross motion by defendant also denied without prejudice to renew (69 Misc 3d 1212[A], 2020 NY Slip Op 51266[U] [Sup Ct, Warren County 2020]). Defendant now opposes this renewal motion and renews its prior cross motion to seal the court records pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 216.1 and, or grant it anonymity because "the inclusion of [its] name in the pleadings, a factor over which [it] [has] no control, [may] subject[ it] to the same concerns voiced by plaintiff of harassment or ridicule" (Doe v MacFarland, 66 Misc 3d 604, 628-629 [Sup Ct, Rockland County 2019]), thus putting the continued operation of its summer camp in jeopardy.
The motion to renew is supported by counsel's affidavit, executed in Florida, together with plaintiff's affidavit, also executed in Florida. Neither contain the certificate of conformity required under CPLR 2309 (c). Since New York permits the filing of a certificate of conformity nunc pro tunc, by which the affidavits could be rendered admissible, in the interest of judicial economy the defects will be overlooked (see CPLR 2001). The renewal motion also includes a properly sworn affidavit from Dr. Marilyn Luber, a clinical psychologist, who opines that her "client" will suffer harm in the event of disclosure. The parameters of this "client" relationship are undisclosed. With neither foundation nor curriculum vitae the Court cannot assess the affiant's qualifications to formulate an opinion. Be that as it may, the content of plaintiff's own affidavit is more problematic.
Initially, the Court notes that "[a] motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221 [e] [2]) and, further, "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [3] [emphasis added]). "The requirement that a motion for renewal be based on new facts is a flexible one, and it is within the court's discretion to grant renewal upon facts known to the moving party at the time of the original motion "if the movant offers a reasonable excuse for the failure to present those facts on the prior motion" (Matter of Defendini, 142 AD3d 500, 502 [2016] [citations and internal quotation marks omitted] [emphasis added]). No excuse at all is offered.
The Court is willing to overlook noncompliance with the CPLR rules governing out of state affidavits. It is not, however, prepared to acquiesce in plaintiff's failure to adhere to the imperatives of CPLR 2221 (e) (2) and, on this basis, plaintiff's motion to renew is denied.
The Court further observes that the new facts on the motion include plaintiff's indication of residency in Rockingham, New Hampshire, which is nearly 200 miles from the county of venue. Plaintiff also attests to a fear of further psychological injury if his or her name appears in "local and national news publications accessible to [his or her] family, friends, employer and co-workers who live and work within the New York, New Jersey, and Pennsylvania area . . . ." Plaintiff makes no suggestion that any such risk could occur in New Hampshire.
The complaint alleges plaintiff is a resident of Pennsylvania.
The Court finds these averments equivocal and lacking clarity as to whether any of these described individuals share any geographic proximity to the county of venue, whether the plaintiff has ever — or those sought to be shielded from these facts, has ever — or may continue to reside in any reasonable proximity to the venued county. Or, for that matter, what is it about the plaintiff's identity that would make these allegations — appalling as they are — so newsworthy as to attract an audience as wide as New Jersey, Pennsylvania, and all of New York? There is no allegation that the press has taken an interest in this case or that either party is a celebrity likely to attract media interest.
Such "boilerplate, broad based statement[s] that disclosing . . . identity as a sexual abuse survivor may cause harm to . . . employment, family and social life in [plaintiff's present] community, and [plaintiff] may suffer further mental anguish, trauma, humiliation, re-victimization, and additional emotional harm" (HCVAWCR-Doe v Roman Catholic Archdiocese of NY, 68 Misc 3d 1215[A], 2020 NY Slip Op 50966[U], *4 [Sup Ct, Westchester County 2020]) are not sufficiently compelling when navigating the balance between plaintiff's privacy interest and the presumption in favor of open trials and potential prejudice to defendant.
"The minimal threshold to be met requires plausible and actual, not speculative harm, and the unique personal reasons that a plaintiff should not disclose his or her identity to the public" (id. at *3). This does not mean that plaintiff must give the horrendous details of the alleged sexual abuse in the application, but some real facts about plaintiff's current circumstances must be provided — where he or she lives, his or her social circumstances, employment, family, and other relevant information (see id. at *3-4). "The mere fact that the internet exists, is . . . of no value to the [C]ourt. On the other hand, a highly compelling factor might be that the plaintiff has a child or grandchild currently in [proximity to location of the alleged] abuse" (id. at *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 at 613). In this instance the Court has previously ordered that plaintiff's identity be revealed to defendant. Nonetheless, it is unlikely this has ended the potential for prejudice to defendants in the framework of their efforts to undertake a proper investigation.
There may be a plethora of uncertainties hatched from the status of a court-ordered anonymity. By way of illustration, "[a]re defendants in actions where plaintiff has been granted the right to use a pseudonym permitted to reveal the plaintiff's true name while locating and interviewing potential witnesses?" (Doe v McFarland, 66 Misc 3d at 628). --------
The cross motion seeking anonymity for defendant is denied since that same relief is not, by this decision, shared by the plaintiff. It would be absurdly inconsistent and lopsided to rule otherwise.
Insofar as defendant's sealing request is concerned, Uniform Rules for Trial Courts (22 NYCRR) § 216.1 (a) provides that "a [C]ourt shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof," and requires the Court to "consider the interests of the public as well as of the parties." "The presumption of the benefit of public access to Court proceedings takes precedence and sealing of Court papers is permitted only to serve compelling objectives, such as when the need for secrecy outweighs the public's right to access, e.g., in the case of trade secrets" (Doe v McFarland, 66 Misc 3d at 619; see Danco Labs. v Chemical Works of Gedeon Richter, 274 AD2d 1, 6-7 [2000]).
Embarrassment, damage to reputation and the general desire for privacy do not constitute good cause to seal court records (see Liapakis v Sullivan, 290 AD2d 393, 394 [2002]; Matter of Benkert, 288 AD2d 147, 147 [2001]; Matter of Hofmann, 284 AD2d 92, 94 [2001]; Visentin v Haldane Cent. School Dist., 4 Misc 3d 1018[A], 2004 NY Slip Op 50937[U], *3 [Sup Ct, Putnam County 2004]).
Perhaps Doe v Doe (189 AD3d 406 [2020]) presents an instructive example of just how reluctant Appellate Courts are to seal a record. In the underlying case plaintiff alleged assault, sexual assault, rape, gender-motivated violence and gross negligence, filing a criminal complaint which the New York County District Attorney's Office declined to prosecute. In the civil action that ensued plaintiff proposed by Order to Show Cause to proceed as "Jane Doe." The trial court, sua sponte, decided to remove and replace the defendant's name with "John Doe," which plaintiff opposed. Ultimately the trial court ordered the caption as "Doe v. Doe" and further ordered that the entire file be under seal. While endorsing the appropriateness of plaintiff proceeding anonymously the Appellate Division reversed the sua sponte caption change holding "[t]he matter should not be sealed" (id. at 407).
Although plaintiff's deficient motion papers have prevented this Court from granting the renewal motion seeking anonymity for reasons already discussed, that failing opens no sustainable path to conclude that defendant's understandable need, or wish, for secrecy outweighs the public's right to access.
Plaintiff is hereby directed to divulge his or her full name to the Court within ten (10) days of the date of service of this Decision and Order with notice of entry thereon, and an Order amending the caption will thereafter be issued in accordance with the determination set forth herein.
NOW, upon reviewing e-filed documents listed by NYSCEF as documents numbered 28 through 37, and upon the foregoing analysis, it is hereby
ORDERED that plaintiff's motion is denied in its entirety; and it is further
ORDERED that defendant's cross motion is denied in its entirety; and it is further
ORDERED that plaintiff shall divulge his or her full name to the Court within ten (10) days of the date of service of this Decision and Order with notice of entry thereon, and an Order amending the caption will thereafter be issued in accordance with the determination set forth herein.
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: February 26, 2021 Lake George, New York ROBERT J. MULLER, J.S.C. ENTER: