Opinion
# 2021-058-008 Claim No. 135895 Motion No. M-96516
03-18-2021
J.B. v. STATE OF NEW YORK
Herman Law By: Scott Michael Duguin, Esq. Hon. Letitia James, New York State Attorney General By: Elizabeth A. Gavin, Esq., Assistant Attorney General
Synopsis
Motion for leave to prosecute Child Victim's Act claim under a pseudonym denied without prejudice; Claimant failed to present specific details of her current circumstances to support application to proceed pseudonymously.
Case information
| UID: | 2021-058-008 |
| Claimant(s): | J.B. |
| Claimant short name: | J.B. |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 135895 |
| Motion number(s): | M-96516 |
| Cross-motion number(s): | |
| Judge: | CATHERINE E. LEAHY-SCOTT |
| Claimant's attorney: | Herman Law By: Scott Michael Duguin, Esq. |
| Defendant's attorney: | Hon. Letitia James, New York State Attorney General By: Elizabeth A. Gavin, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 18, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
On January 28, 2021, Claimant filed this Claim pursuant to the Child Victims Act to recover damages for alleged sexual misconduct perpetrated at Hudson River State Hospital (see Claim No. 135985). Claimant moves by order to show cause for leave to prosecute this Claim using the pseudonym "J.B.", Claimant's initials. The undersigned signed the Order to Show Cause bringing on the motion. By letter dated March 12, 2021, Defendant advised that it has no objection to Claimant proceeding under a pseudonym.
"[T]he legislature did not provide for parties who file cases seeking redress for child sexual abuse under the Child Victims Act (or otherwise) to presumptively proceed anonymously or pseudonymously" (Doe v MacFarland, 66 Misc 3d 604, 614 [Sup Ct, Rockland County 2019]; see HCVAWCR-Doe v Roman Catholic Archdiocese of N.Y., 68 Misc 3d 1215[A], 2020 NY Slip Op 50966[U], at *3 [Sup Ct, Westchester County 2020]). "The determination of whether to allow a [claimant] to proceed anonymously requires the court to use its discretion in balancing [the claimant's] privacy interest against the presumption in favor of open trials and against any potential prejudice to [the] defendant" (Anonymous v Lerner, 124 AD3d 487, 487 [1st Dept 2015] [internal quotation marks and citations omitted]). "'[E]ven where parties seek to stipulate to such relief, the trial court should not pro forma approve an anonymous caption, but should exercise its discretion to limit the public nature of judicial proceedings sparingly and then, only when unusual circumstances necessitate it'" (Applehead Pictures LLC v Perelman, 80 AD3d 181, 192 [1st Dept 2010], quoting Anonymous v Anonymous, 27 AD3d 356, 361 [1st Dept. 2006]; see HCVAWCR-Doe, 2020 NY Slip Op 50966[U], at *4 ["(i)t is not unusual for the parties to stipulate to allowing plaintiff to proceed under a pseudonym, but standing alone, it is not enough. It is the court that is tasked with such decision, and . . . that obligation cannot be delegated to the litigants or court staff in derogation of the court's duty]; see also Doe v Roman Catholic Archdiocese of N.Y., 64 Misc 3d 1220[A], 2019 NY Slip Op 51216[U], at *4 [Sup Ct, Westchester County 2019]).
"The party seeking anonymity is required to provide evidence corroborating the allegations in support of the request" (Doe v Good Samaritan Hosp., 66 Misc 3d 444, 448 [Sup Ct, Nassau County 2019] [internal quotation marks and citation omitted]). In HCVAWCR-Doe v Roman Catholic Archdiocese of N.Y., Westchester County Supreme Court Justice Charles D. Wood expounded "that to be granted anonymity [in a case brought pursuant to the Child Victims Act], 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."
(HCVAWR-Doe, 2020 NY Slip Op 50966[U], at *3-4; see A.S. v Adirondack Camp, 69 Misc 3d 1212 [A], 2020 NY Slip Op 51266[U], at *1-2 [Sup Ct, Washington County 2020]).
Courts have held that "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 are not sufficiently compelling" alone to permit a plaintiff to proceed anonymously (A.S. v Adirondack Camp, 70 Misc 3d 1219[A], 2021 NY Slip Op 50147[U], at *2 [Sup Ct, Washington County 2021]).
In the exercise of discretion, the Court concludes that the affidavits submitted by Claimant and her Counsel in support of this application lacks specific details of Claimant's current circumstances to support the request to proceed pseudonymously. Specifically, Claimant alleges "I reasonably fear further psychological injury" (Claimant's Affidavit¶ 6). Said statement is devoid of any unique, personal rationale requiring anonymity (see Doe v Smith, 189 FRD 239, 243 [ED NY 1998] [denying motion seeking leave to proceed under a pseudonym where the plaintiff generally alleged she would suffer mental anguish if her name were publicized and presented "no evidence of the nature, level, or intensity of the mental injury that such stigmatization would cause her"]). Claimant has "failed to overcome the presumption of openness axiomatic to our justice system by presenting the exceptional situation where her privacy interests outweighed the defendant's and the public's interest in public proceedings" (Doe v Smith, 105 F Supp 40, 42 [ED NY 1999]). Consequently, the Court denies the motion. However, the denial is without prejudice to afford Claimant an additional opportunity to make a sufficient evidentiary showing to proceed pseudonymously (see Adirondack Camp, 2020 NY Slip Op 51266[U], at *2).
Accordingly, it is hereby:
ORDERED Claimant's Motion M-96516 is DENIED, without prejudice; and it is further
ORDERED Claimant shall provide the Court with Claimant's full name within twenty (20) days of the filing of this Decision and Order so that the caption can be amended in accordance with this Decision and Order.
March 18, 2021
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims The Court considered the following in deciding this motion. (1) Order to Show Cause, filed March 4, 2021. (2) Affirmation of Scott Michael Duquin, Esq., in Support of Application, dated January 27, 2021. (3) Claim No. 135895, filed January 28, 2021. (4) Claimant's Affidavit, sworn to on January 27, 2021. (5) Letter of Elizabeth A. Gavin, Esq., Assistant Attorney General, dated March 12, 2021.