Opinion
Index No. 653683/2022 Motion Seq. No. 002
04-03-2023
In the Matter of INTERMEDIATE CAPITAL GROUP, INCORPORATED and INTERMEDIATE CAPITAL GROUP, PLC, Petitioners, v. CHARLES ROSSE, Respondent.
Unpublished Opinion
PART 56M
MOTION DATE 01/11/2023
DECISION + ORDER ON MOTION
HON. JOHN J. KELLEY, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 002) 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 were read on this motion to/for SEAL
In this disposed proceeding to confirm an arbitration award, the respondent moves pursuant to 22 NYCRR 216.1 to seal the petition and final arbitration award that had been filed in this proceeding and uploaded as docket entry numbers 1 and 3, respectively, to the New York State Court Electronic Filing system. Although the petitioners agreed not to oppose the motion, and in fact did not oppose the sealing of these records, the motion nonetheless is denied.
A brief outline of the petitioner's contentions is set forth in the petition, as well as in the parties' submissions in support of and in response to the petition. In short, the respondent, who was employed by the petitioners, sought recovery for money he claimed that they owed to him. The arbitrator found in favor of the petitioners. In the instant proceeding, the petitioners sought to confirm the award. In a stipulation dated December 5, 2022, the respondent agreed to refrain from opposing the petition, and the petitioners in turn stipulated to refrain from opposing the respondent's instant sealing motion. In and order and judgment dated March 17, 2023, the court granted the petition and confirmed the award. In this motion, the respondent contends that the claims that he made are of a sensitive nature, suggests that the petition and arbitration award that had been filed in this proceeding might reveal information that is sensitive or embarrassing to himself, and asserts that those documents might subject him to adverse consequences if open to public scrutiny. These contentions are insufficient to support the respondent's request for a sealing order.
22 NYCRR 216.1(a) provides, in relevant part, that
"[e]xcept where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records .. . except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties."
"[T]here is a broad presumption that the public is entitled to access to judicial proceedings and court records" (Mosallem v Berenson, 76 A.D.3d 345, 348 [1st Dept 2010]). Although the public's right to access is not absolute (see Danco Labs, v Chemical Works of Gedeon Richter, Ltd., 214 A.D.2d 1, 6 [1st Dept. 2000]), "[t]he 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" (Applehead Pictures, LLC v Perelman, 80 A.D.3d 181, 191 [1st Dept 2010]; see Matter of East 51st St. Crane Collapse Litig., 106 A.D.3d 473, 474 [1st Dept 2013]; Danco Labs, v Chemical Works of Gedeon Richter, Ltd., 214 A.D.2d at 6; see also Schulte Roth & label, LLP v Kassover, 80 A.D.3d 500, 501-502 [1st Dept 2011]). As the Appellate Division, First Department, has explained, it has "been reluctant to allow the sealing of court records" (Gryphon Dom. VI, LLCvAPP Intl. Fin. Co., B.U., 28 A.D.3d 322, 324 [1st Dept 2006]; see Matter of Holmes v Winter, 110 A.D.3d 134, 138 [1st Dept 2013], revd other grounds 22 N.Y.3d 300 [2013]; Mosallem v Berenson, 76 A.D.3d at 350; see generally Davis v Nyack Hosp., 130 A.D.3d 455, 456 [1st Dept 2015]; Matter of Brownstone, 191 A.D.2d 167, 168 [1st Dept 1993]).
"Thus, the court is required to make its own inquiry to determine whether sealing is warranted, and the court will not approve wholesale sealing of [court] papers, even when both sides to the litigation request sealing" (Applehead Pictures, LLC v Perelman, 80 A.D.3d at 192 [citations omitted] [emphasis added]; see Gryphon Dom. VI, LLCvAPP Intl. Fin. Co., B.U., 28 A.D.3d at 324; Liapakis v Sullivan, 290 A.D.2d 393, 394 [1st Dept 2002]; Matter of Hofmann, 284 A.D.2d 92, 93 [1st Dept 2001] [denying request to seal court records despite the parties' confidentiality agreement]).
The party seeking to seal court records has the burden of establishing "good cause" for the sealing order (Mancheski v Gabelli Group Capital Partners, 39 A.D.3d 499, 502 [2d Dept 2007]). "Since confidentiality is the exception," the movant must establish that "public access to the documents at issue will likely result in harm to a compelling interest of the movant and that no alternative to sealing can adequately protect the threatened interest" (id. [citations omitted]). This court has discretion, on a case-by-case basis, to determine if good cause exists (see id.). Hence, where a party fails to show the existence of a compelling reason to seal a record, sealing should be denied (see Daw's v Nyack Hosp., 130 A.D.3d at 456).
Neither a party's embarrassment nor a general desire for privacy is sufficient, of itself, to establish good cause for sealing a court file (see Matter of Holmes v Winter, 110 A.D.3d at 138; Mosallem v Berenson, 76 A.D.3d at 351; Liapakis v Sullivan, 290 A.D.2d at 394; Matter of Benkert, 288 A.D.2d 247, 247 [1st Dept 2001]; Matter of Hofmann, 284 A.D.2d at 93; State of New York ex rel. Aniruddha Banerjee v Moody's Corp., 54 Misc.3d 705, 708 [Sup Ct, N.Y. County 2016]).
Conclusory claims of the need for confidentiality, based on the alleged adverse consequences arising from public access to certain documents, and even the existence of a confidentiality agreement between the parties, are insufficient bases upon which to seal court records (see Heng Ren Silk Rd. Invs. LLC v Duff & Phelps, LLC, 203 A.D.3d 659, 660 [1st Dept 2022] [conclusory statements that defendant might be subject to draconian penalties if it were found to be in violation of the Chinese Data Security Law by filing a confidential valuation report with a United States court are insufficient to establish good cause for sealing]; Norddeutsche Landesbank Girozentrale v Tilton, 165 A.D.3d 447, 448-449 [1st Dept 2018] [although the disclosures that the defendants sought to seal involved sensitive financial information that related to information contained in tax returns, their request for a sealing order was properly denied, since those documents were not actual tax returns, and did not involve trade secrets or information that could result in a competitive disadvantage to defendants]; Matter of Benkert, 288 A.D.2d at 247; Matter of Hofmann, 284 A.D.2d at 93; Matter of Tram Thuy Nguyen, NYLJ, Feb. 23, 2016, at 22, col 6, 2016 NYLJ LEXIS 2391 [Sur Ct, N.Y. County, Feb. 18, 2016]; Matter of Golden, NYLJ, Jul. 16, 2015, at 24, col 1 [SurCt, N.Y. County]; Matter of Brown, NYLJ, Apr. 10, 2013, at 23, col 6 [Sur Ct, Kings County]; Matter of Soltesz, NYLJ, Jun. 29, 2015, at 25 [Sur Ct, Bronx County]). The court notes that, in any event, the parties remain bound by any confidentiality agreement into which they entered or will enter, as that is a binding contract subject to generally applicable rules of contract construction (see generally Garda United States v Sun Capital Partners, 194 A.D.3d 545, 547-548 [1st Dept 2021]). Furthermore, the remedy for preventing the potential for significant embarrassment is to permit a party to proceed anonymously (see Doe v Yeshiva Univ., 195 A.D.3d 565, 566 [1st Dept 2021]), an option that the respondent did not elect here.
Inasmuch as the respondent has made no showing of good cause as to why the petition and arbitration award should be sealed in this proceeding, his motion must be denied.
Accordingly, it is
ORDERED that the motion is denied.
This constitutes the Decision and Order of the court.