Anonymous v Duane Reade Inc.

[*1] Anonymous v Duane Reade Inc. 2005 NY Slip Op 51977(U) [10 Misc 3d 1056(A)] Decided on October 7, 2005 Supreme Court, Kings County Jacobson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 7, 2005
Supreme Court, Kings County

Anonymous, Plaintiff,

against

Duane Reade Inc., Defendant.



7541/04

Laura Jacobson, J.

Defendant moves for an order pursuant to CPLR 3211(a)(7) dismissing plaintiff's amended verified complaint for failure to state a cause of action. Plaintiff cross moves for an order (1) amending the caption nunc pro tunc to substitute Anonymous in place and instead of the plaintiff's name and directing the clerk of the court to amend the captions of all papers in this action, pursuant to Judicial Law section 2-b(3); (2) sealing the public record of this action pursuant to 22 NYCRR 216.1.

This is an action for damages for injuries allegedly sustained on May 25, 2003, when plaintiff's HIV- positive status was allegedly mentioned aloud and repeated by defendant's employee, in response to plaintiff's request to fill his prescriptions. Plaintiff alleges that he was caused to be embarrassed, humiliated and publicly outed as a person suffering from HIV. [*2]

On a motion to dismiss for failure to state a cause of action the sole criteria is whether from the complaint's four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law (see Operative Cake Corp. V. Nassour, _AD3d_, 2005 WL 2292373 [2nd Dept. 2005]). The facts pleaded are presumed true and the plaintiff is granted every favorable inference (see Mayers v. Sanders, 264 AD2d 827 [2nd Dept. 1999]). Contrary to defendant's assertions, the complaint alleges a cognizable claim for breach of fiduciary duty. Moreover, plaintiff has established that he is entitled to amend the caption to proceed anonymously. However, the court granting a party the right to proceed anonymously is not the equivalent of sealing the record (see Doe v. Bellmore Merrick Cent. High School Dist., 1 Misc 3d 697 [2003]). Here, plaintiff has failed to establish sufficient grounds to warrant sealing of the record (see Anonymous v. Anonymous, 158 AD2d 296 [1st Dept. 1990]).

Accordingly, defendant's motion to dismiss is denied. Plaintiff's motion is granted to the extent that plaintiff is granted leave to amend the pleadings to proceed in this action anonymously.

This constitutes the decision and order of this court.

____________________

Laura Jacobson, JSC