Opinion
INDEX NO. 155961/2020
11-12-2020
JANE DOE, Plaintiff, v. JOHN DOE, Defendant.
NYSCEF DOC. NO. 21 PRESENT: HON. KATHRYN E. FREED Justice MOTION SEQ. NO. 001
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20 were read on this motion to/for AMEND CAPTION/PLEADINGS.
In this tort action, plaintiff moves, by order to show cause, to prosecute this action under a pseudonym. Defendant opposes the motion and, in the alternative, requests that he be permitted to proceed under a pseudonym in the event plaintiff's motion is granted. After oral argument, and after a review of the motion papers and the relevant statutes and case law, the motion is decided as follows.
FACTUAL AND PROCEDURAL BACKGROUND:
Plaintiff claims that, in or around August 2019, when she was 20 years of age, she began working for defendant's family as a nanny and that the latter verbally and sexually abused and raped her. In her complaint against defendant, filed in July 2020, plaintiff, suing under the pseudonym Jane Doe, alleged, inter alia, claims of sexual discrimination and retaliation under the New York State Human Rights Law and the New York City Human Rights Law, intentional infliction of emotional distress, and assault and battery. Doc. 2.
Curiously, although the complaint (Doc. 2) is listed in NYSCEF as having been filed July 24, 2020, the document itself bears a stamp reflecting that it was filed August 4, 2020.
In August 2020, plaintiff filed the instant order to show cause seeking to proceed under a pseudonym, including the redaction of her name from the affidavit she submits in support of the motion. Docs. 6, 9. In their affidavit and affirmation submitted in support of the motion, respectively, plaintiff and her attorney assert that plaintiff should be permitted to proceed under a pseudonym on the grounds that this case involves issues of a highly sensitive and personal nature; that, by revealing her identity, plaintiff, an aspiring dancer, actress, and model, could be deterred from prosecuting this claim since it could stigmatize her in those industries; and that proceeding under her actual name could cause her further psychological harm. Docs. 4 and 6. Plaintiff also submits the affidavit of her treating licensed master social worker, who represents that "the potential consequences of filing under [plaintiff's] legal name are so great that it would be unsafe for [plaintiff] to access and exercise her legal right to redress without the protection of anonymity afforded by the court." Doc. 7 at par. 13.
In opposition to the motion, defendant and his attorney submit an affidavit and affirmation (Docs. 14 and 15, respectively), asserting that the motion must be denied because, among other things, it would cause him "vast prejudice" and since plaintiff has not demonstrated good cause for sealing her affidavit. Alternatively, defendant requests that this Court permit him to proceed under the pseudonym John Doe in the event plaintiff's motion is granted.
This Court notes that defendant's opposition papers are mistakenly labeled in NYSCEF as having been filed in opposition to a "cross motion" and not in opposition to plaintiff's order to show cause. Docs. 14-15. Additionally, although plaintiff submits reply papers, she was not given permission to do so. Docs. 9, 17-19.
LEGAL CONCLUSIONS:
The determination of whether to allow a plaintiff to proceed anonymously requires the court to "use its discretion in balancing plaintiff's privacy interest against the presumption in favor of open trials and against any potential prejudice to defendant" (Anonymous v Lerner, 124 AD3d 487 citing Stevens v Brown, 2012 NY Misc LEXIS 3340, 2012 NY Slip Op 31823[U], *8-9 [Sup Ct, NY County 2012], citing Doe v Szul Jewelry, Inc., 2008 NY Misc LEXIS 8733, 2008 NY Slip Op 31382[U], *11 [Sup Ct, NY County 2008]). Thus, the court considers the following factors: [1] [w]hether the justification asserted . . . is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of a sensitive and highly personal nature; [2] whether the party seeking anonymity has an illegitimate ulterior motive; [3] the extent to which the identity of the litigant has been kept confidential; [4] whether identification poses a risk of mental or physical harm, harassment, ridicule, or personal embarrassment; [5] whether the case involves information of the utmost intimacy; [6] whether the action is against a governmental or private entity; [7] the magnitude of the public interest in maintaining confidentiality or knowing the party's identity; [8] whether revealing the identity of the party will dissuade the party from bringing the lawsuit; [9] whether the opposition to anonymity has an illegitimate basis; [and] [10] [] whether the other side will be prejudiced by use of the pseudonym. (Szul, id. 2008 N.Y. Misc. LEXIS 8733 at *16-17).Doe v Spencer Cox Clinic, 59 Misc 3d 1210(A), 2018 NY Slip Op 50461(U), *1-2 (Sup Ct, NY County 2018).
Here, there is no question that plaintiff seeks to preserve privacy in a case of a sensitive and highly personal nature involving matters of the utmost intimacy; there is no indication that plaintiff has an illegitimate ulterior motive in seeking to preserve her privacy; plaintiff's identity has thus far been kept confidential in this matter; plaintiff's treating social worker opines that plaintiff's mental state may be adversely affected if she has to divulge her identity in this action; this action is not against a governmental agency and, thus, there is no need for increased transparency; there are no compelling factors militating in favor of the public's need to know plaintiff's identity; plaintiff and her social worker represent that she (plaintiff) may be hesitant to proceed with this unless she proceeds under a pseudonym; and defendant has failed to establish that he would be prejudiced in plaintiff were permitted to proceed under a pseudonym. Thus, this Court, in its discretion, determines that plaintiff may proceed under the pseudonym Jane Doe.
Defendant's request that he be permitted to proceed under a pseudonym if plaintiff is allowed to do so is denied insofar as he did not seek this affirmative relief by way of cross motion. See CPLR 2214(b); 2215.
Therefore, in light of the foregoing, it is hereby:
ORDERED that plaintiff's motion to file a complaint and proceed herein under a pseudonym, rather than in her legal name, and to proceed throughout this action under such pseudonym, rather than in her own name, is granted, nunc pro tunc; and it is further
ORDERED that in any documents or anywhere Plaintiff's real name appears in this action, it shall be redacted or referred to by the pseudonym "Jane Doe"; and it is further
ORDERED that plaintiff serve a copy of this decision, with notice of entry, upon defendant within 20 days of this Court's decision and order; and it is further
ORDERED that plaintiff personally serve defendant with the complaint within 20 days of this Court's decision and order; and it is further
ORDERED that defendant shall answer the complaint or otherwise move or appear within the time prescribed by the CPLR; and it is further
ORDERED that said information shall only be shared between the parties to this litigation notwithstanding any consent to share agreed to by plaintiff; and it is further
ORDERED that this constitutes the decision and order of this Court. 11/12/2020
DATE
/s/ _________
KATHRYN E. FREED, J.S.C.