Opinion
506 Index No. 652358/22 Case No. 2023-00181
06-20-2023
Jenica PAULSON, Plaintiff-Appellant, v. John PAULSON, Defendant-Respondent, Jeffrey Bortnick, Defendants.
Cohen Clair Lans Greifer & Simpson LLP, New York (Robert S. Cohen of counsel), for appellant. Blank Rome LLP, New York (Samuel D. Levy of counsel), for respondents.
Cohen Clair Lans Greifer & Simpson LLP, New York (Robert S. Cohen of counsel), for appellant.
Blank Rome LLP, New York (Samuel D. Levy of counsel), for respondents.
Webber, J.P., Oing, Gesmer, Gonza´lez, Pitt–Burke, JJ.
Order, Supreme Court, New York County (Louis L. Nock, J.), entered January 10, 2023, which granted defendant husband's motion to close the courtroom for oral argument on the motions to dismiss the complaint in this action, unanimously reversed, on the law, with costs, and the motion denied.
The motion court did not provide the public and the press adequate notice of the husband's courtroom closure request. Because it directed the parties to file their submissions on the application for courtroom closure by email, the submissions were not reflected on "the publicly maintained docket entries," as required ( Application of The Herald Co., 734 F.2d 93, 102–103 [2d Cir.1984] ; see also Matter of Herald Co. v. Weisenberg, 59 N.Y.2d 378, 383, 465 N.Y.S.2d 862, 452 N.E.2d 1190 [1983] ; Matter of New York Times Co. v. Demakos, 137 A.D.2d 247, 252, 529 N.Y.S.2d 97 [2d Dept. 1988] ).
We also reverse on substantive grounds. "Public access to court proceedings is strongly favored, both as a matter of constitutional law ... and as statutory imperative ( Judiciary Law § 4 )" ( Anonymous v. Anonymous, 263 A.D.2d 341, 342, 705 N.Y.S.2d 339 [1st Dept. 2000] ). In the order appealed here, the motion court improperly read an exception into the "statutory imperative" of N.Y. Judiciary Law § 4 that does not exist. The first part of that statute, entitled "Sittings of courts to be public," states: "The sittings of every court within this state shall be public, and every citizen may freely attend the same ..." The only exceptions to this rule are set forth in the statute's next sentence: "except that in all proceedings and trials in cases for divorce, seduction, rape, assault with intent to commit rape, criminal sexual act, bastardy or filiation, the court may, in its discretion, exclude therefrom all persons who are not directly interested therein, excepting jurors, witnesses, and officers of the court" (see also 1 Carmody–Wait 2d § 2:271 [March 2023 Update] ["Absent exceptional circumstances, a judge or justice has no discretion whether a judicial proceeding is open to the public"]).
Here, the motion court used its discretion to insert another, unwritten category of cases into the statutory exception: proceedings that could entail arguments that implicate documents filed under seal. We find its decision to do so to have been improper (see Matter of James Q., 32 N.Y.3d 671, 679, 96 N.Y.S.3d 159, 120 N.E.3d 358 [2019] ["Where the Legislature has chosen to temper or abrogate the presumption of openness, it has done so in specific language, and these exceptions have been strictly construed by the courts" (internal quotation marks omitted)]). Even if, as the husband emphasizes, the right of access is "not absolute" (e.g. Danco Labs. v. Chemical Works of Gedeon Richter, 274 A.D.2d 1, 6, 711 N.Y.S.2d 419 [1st Dept. 2000] ), the motion court's approach – closing a courtroom to public access on grounds that the proceedings implicate documents previously filed under seal – has been rejected by the Court of Appeals (see Matter of Capital Newspapers Div. of Hearst Corp. v. Moynihan, 71 N.Y.2d 263, 272, 525 N.Y.S.2d 24, 519 N.E.2d 825 [1988] ; see also People v. Gomez, 103 Misc.2d 352, 353, 425 N.Y.S.2d 776 [Sup. Ct., Ontario County 1980] ;
Matter of Child A, 45 Misc.3d 1017, 994 N.Y.S.2d 832 [Sur. Ct., Nassau County 2014] ; Matter of Doe, 16 Misc.3d 714, 842 N.Y.S.2d 200 [Sur. Ct., N.Y. County 2007] ).
Moreover, the courtroom closure precedents cited by the motion court and the husband are inapposite for various reasons, including because they arise from situations where courtrooms were closed on other grounds, such as to protect a criminal defendant's rights (e.g. Matter of Gannett Co. v. De Pasquale, 43 N.Y.2d 370, 401 N.Y.S.2d 756, 372 N.E.2d 544 [1977], affd 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 [1979] ; Matter of Daily News, L.P. v. Wiley, 126 A.D.3d 511, 6 N.Y.S.3d 19 [1st Dept. 2015] ); entailed pretrial discovery, not courtroom proceedings (e.g. Matter of Westchester Rockland Newspapers, Inc. v. Marbach, 66 A.D.2d 335, 413 N.Y.S.2d 411 [2d Dept. 1979] ); relied on statutes inapplicable here (e.g. Matter of Astor, 13 Misc.3d 1203[A], 2006 WL 2546192 [Sup. Ct., N.Y. County 2006] ); fall within the express exceptions of Judiciary Law § 4 (e.g. Chait v. Chait, 292 A.D.2d 215, 740 N.Y.S.2d 9 [1st Dept. 2002] ); or altogether do not contend with the unambiguous language of Judiciary Law § 4 – a statute whose applicability here is unquestioned (e.g. Giuffre v. Dershowitz, 2021 WL 5233551 [S.D.N.Y. Nov. 10, 2021] ; Lynch v. Southampton Animal Shelter Foundation, Inc., 2012 WL 13109966 2012,*2 [E.D.N.Y. July 10, 2012, No. CV 10–297] ).
We note that the husband's withdrawal of his objection to the closure in this instance is not dispositive. Moreover, to the extent he argues the proceedings at issue are not entitled to the presumption of public access because they are pretrial or because they are scheduled at the court's discretion, his arguments find no support in the text of Judiciary Law § 4.
We also find the motion court to have improperly ordered courtroom closure on the basis of speculative harm to the parties’ daughters. Its determination relied on Lisa C–R v. William R, 166 Misc.2d 817, 635 N.Y.S.2d 449 [Sup. Ct., N.Y. County 1995] ), but that case, which concerned public access to a pretrial deposition, was a divorce case, and thus among the express exceptions of Judiciary Law § 4.