Opinion
EC2020-31955
10-26-2020
MGD-5 Doe, Plaintiff, v. Argyle Central School District, ARGYLE CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION, ARGYLE CENTRAL HIGH SCHOOL, JOHN AND JANE DOE 1-30, Defendants.
Michael G. Dowd, Lake Success Girvin and Ferlazzo, P.C., Albany (Daniel S. L. Rubin of counsel), for defendants.
Michael G. Dowd, Lake Success Girvin and Ferlazzo, P.C., Albany (Daniel S. L. Rubin of counsel), for defendants. Robert J. Muller, J.
Plaintiff commenced this action against defendants pursuant to pursuant to the New York Child Victims Act (hereinafter the CVA) (see CPLR § 214-g) by the filing of a summons and complaint on August 19, 2020. Presently before the Court is plaintiff's motion by Order to Show Cause filed simultaneous with the summons and complaint for permission to proceed under the pseudonym "MGD-5 Doe." There is no request that the record be sealed, and the motion indicates that plaintiff's identity will be disclosed in paper discovery "not to be filed publicly."
Plaintiff submits a complaint verified by counsel which describes the sexual abuse plaintiff allegedly suffered at the hands of the now-deceased principal of Argyle Central High School from the fall of 1rmation that 982 to the winter of 1987. Plaintiff also submits the affirmation of counsel and the affidavit of David G. Heffler, M.A., LMHC, Ph.D., a licensed Mental Health Counselor. This latter affidavit is a generic document, sworn to even before this action was commenced, apparently having been submitted to other Courts weighing these same issues. It is of no probative value as it is not the product of any interview of plaintiff and is useless to the inquiry at hand. Counsel likewise lacks any personal knowledge and, as such, his affirmation is just as useless (see 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]). Try as they might each affirmation ineffectually outlines in general terms beliefs that trauma suffered by victims of sexual abuse, the social stigma they experience, and the harm that disclosure of their identity would cause are presumed. Indeed, some Courts have granted anonymity under the assumption that undoubtedly such risks of harm are axiomatic or, stated otherwise, are self-evident (see e.g. Twersky v Yeshiva University, NYLJ [online] August 17, 2020 [Sup Ct, New York County 2020]; Doe v Archdiocese of New York, Sup Ct, NY County, Nov. 4, 2019, Silver, J., index No. 950049/2019; Doe v Kara, Sup Ct, Queens County, Sept. 22, 2019, Silver, J., index No. 714910/2019; compare HCVAWCR-Doe v Roman Catholic Archdiocese of NY, 2020 NY Slip Op 50966[U] at *3; Doe v McFarland, 66 Misc 3d 604, 613 [Sup Ct, Rockland County 2019]; 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]).
Plaintiff's reply in further support of the motion includes, for the first time, an affidavit from plaintiff — which the Court has considered after granting defendants permission to submit a sur-reply (see Eujoy Realty Corp. v Van Wagner Communications, LLC, 22 NY3d 413, 422 [2013]). Although this Court does not embrace such careless motion practice, denying the motion without prejudice to renewal would be wasteful of judicial resources — particularly where, as here, any prejudice to defendants has been remedied and addressed by the authorized sur-reply.
Plaintiff thus indicates he still resides near the school district and that disclosure would cause further "anxiety and shame if . . . neighbors and community members learned of [the] abuse," that in 20 years of marriage these events, until recently, were never shared with his wife and that "severe emotional stress" would result from a public disclosure. Plaintiff also recounts "struggle[s] with substance abuse for years as a result of this [alleged conduct]," which clashes have been punctuated with considerations of suicide — and such overt acts as have been graphically described.
"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 prejudice to defendant" (Anonymous v Lerner, 124 AD3d 487, 487 [2015] [internal quotation marks and citations omitted]; accord Doe v Roman Catholic Archdiocese of New York, 2019 NY Slip Op 51216[U] at *4). "Claims of public humiliation and embarrassment . . . are not sufficient grounds for allowing a plaintiff to proceed anonymously" (Doe v Roman Catholic Archdiocese of New York, 2019 NY Slip Op 51216[U] at *4; see Anonymous v Lerner, 124 AD3d at 487). "Other factors considered by the [C]ourts include whether . . . plaintiff's situation is compelling, involves highly sensitive matters, including social stigmatization, or involves real danger of physical harm" (Doe v Roman Catholic Archdiocese of New York, 2019 NY Slip Op 51216[U] at *4; see Doe v New York Univ., 6 Misc 3d 866, 879 [Sup Ct, NY County 2004]). Notably, "[t]he party seeking anonymity is required to provide evidence corroborating the allegations in support of the request" (Doe v Good Samaritan Hosp., 65 Misc 3d 987, 989 [Sup Ct, Nassau County 2019]; accord Doe v MacFarland, 66 Misc 3d at 623). Plaintiff's belated affidavit in compelling fashion achieves this end.
The specific factors that check this analysis from drifting into a reactive disclaimer of the Court's obligation to "exercise its deliberative and discretionary function, and not grant anonymity indiscriminately to all CVA plaintiffs in a wholesale fashion, [as if it were] a ministerial function" (HCVAWCR-Doe v Roman Catholic Archdiocese of NY, 2020 NY Slip Op 50966[U] at *3) include plaintiff's continued residence in this small rural community, concealing the alleged suffering from a wife of nearly two decades, and persisting anxieties severe enough that plaintiff considered suicide on several occasions. The substance of plaintiff's sworn testimony therefore substantially outweighs "the customary and constitutionally embedded presumption of openness in judicial proceedings" ("J. Doe No. 1" v CBS Broadcasting Inc., 24 AD3d 215, 215 [2005]).
NOW, therefore having considered the summons and complaint dated August 19, 2020; the supporting affirmation of Michael G. Dowd, Esq. dated August 19, 2020, together with Exhibits "A" through "D" attached thereto, with Exhibit "A" being the supporting affidavit of David G. Heffler, M.A., LMHC, Ph.D., sworn to February 6, 2020; the opposing affirmation of Daniel S. L. Rubin, Esq. dated September 16, 2020, together with Exhibits "A" through "E" attached thereto; the reply affirmation of Michael G. Dowd, Esq. dated September 22, 2020, together with Exhibit "1" attached thereto, with this Exhibit being plaintiff's redacted affidavit, sworn to September 18, 2020; and the sur-reply affirmation by permission of Daniel S. L. Rubin, Esq., dated October 9, 2020, it is hereby
ORDERED, that plaintiff's motion to proceed under the pseudonym "MGD-5 Doe" is granted, and the caption in this matter shall remain the same; 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 identity and other pertinent identifying information to defendants within ten (10) days of the date of e-filing of this Decision and Order; and it is further
ORDERED, that any relief not specifically addressed has been considered and is expressly denied.
This constitutes the Decision and Order of the court.
The original of this Decision and Order has been e-filed by the Court. Counsel for plaintiff is directed to obtain a filed copy of the Decision and Order for service with notice of entry upon counsel for defendants in accordance with CPLR 5513. Dated: October 26, 2020 Lake George, New York __________ ROBERT J. MULLER, J.S.C. ENTER: