Visentin v Haldane Cent. School Dist.

[*1] Visentin v Haldane Cent. School Dist. 2004 NY Slip Op 50936(U) Decided on February 10, 2004 Supreme Court, Putnam County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 10, 2004
Supreme Court, Putnam County

JOHN VISENTIN, Plaintiff, -against- JOHN DiNATALE as THE SUPERINTENDENT OF THE HALDANE CENTRAL SCHOOL DISTRICT in his official capacity and individually, MARGARET O'SULLIVAN, THE PUTNAM COUNTY NEWS AND RECORDER, BRIAN O'DONNELL and PCN&R, INC. (publisher of the Putnam County News and Recorder), MELANIE FERRIS and DOREEN FERRIS, Defendants.



633/02



Jerold S. Slate, Esq.

303 Mill Street

Poughkeepsie, NY 12601

Jonathan B. Bruno, Esq.

Kaufman, Borgeest & Ryan

99 Park Avenue, 19th Floor

New York, NY 10016

Henry R. Kaufman, Esq.

11 East 44th Street

Suite 900

New York, NY 10017

Melanie Ferris

33 Bertha Blvd.

Beacon, NY 12508

Doreen Ferris

14 Constitution Drive

Cold Spring, NY 10516

David E. McCraw, Esq.

Legal Department

The New York Times Company

229 W. 43rd Street

New York, NY 10036

Fred L. Shapiro, J.

The following papers, numbered 1 to 5, read on this motion by the New York Times Company, Newsday, Inc., The Associated Press, The Hearst Corporation, Gannett Satellite Information Network, Inc. and Ottaway Newspapers, Inc. (collectively and hereafter, the "News Organizations") for an order pursuant to CPLR 1012 and 1013 and the inherent power of the Court granting them intervenor status in this proceeding for the limited purpose of enforcing the public's right of access; vacating a protective order entered on or about December 3, 2002; and directing that no document required to be filed with this Court be placed under seal absent a further order of the Court upon a proper showing by a party movant.

Notice of Motion, Complaint

in Intervention and Memorandum

in Support 1-3

Memorandum of Law in Opposition 4

Reply Memorandum 5

Upon the foregoing papers, it is ordered that this motion for intervention is denied.

The underlying defamation action was brought by plaintiff John Visentin, a high school English teacher, against, among others, his former employer, Haldane Central School District [*2]and its Superintendent, John DiNatale (hereafter, the "School Defendants"). Also named as defendants were the local newspaper, the Putnam County News and Recorder, its publisher Brian O'Donnell and PCN&R, Inc. and reporter Margaret O'Sullivan (collectively, the "Newspaper Defendants") after an article concerning plaintiff's termination from that employment appeared in a front page article on May 9, 2001.

During the discovery phase of this action, the parties entered a "Protective Order, Confidential Stipulation and Agreement," which was so ordered by a Justice of the Supreme Court on November 27, 2002. The stipulation broadly allowed any party to "designate as 'confidential' any material it reasonably and in good faith believes to contain [confidential, private or privileged] information." Pursuant to this stipulation, plaintiff designated all documents as confidential, including all papers submitted in connection with the pending motions for summary judgment, unsealing of the records [FN1] and this motion for intervention, effectively insulating the entire record from public access.

As a result of the foregoing sealing the News Organizations seek to intervene in the matter for the "limited purpose of enforcing the public's right of access" to the proceedings. They predicate their request for relief upon CPLR 1012 and 1013, provisions authorizing intervention as of right and by permission, respectively. If granted intervenor status, the News Organizations would become a party for all purposes (Matter of Greater New York Health Care Facilities Assn. V DeBuono, 91 NY2d 716, 720). Plaintiff opposes the motion.

The News Organizations have failed to demonstrate that intervention as of right is appropriate here. The only applicable section of CPLR 1012, subdivision (a)(2),[FN2] authorizes such intervention "[w]hen representation of the person's interest by the parties is or may be inadequate and the person is or may be bound by the judgment." The proposed intervenors contend that the named Newspaper Defendants cannot adequately represent the broader public interest in unsealing since they signed the stipulation, agreeing to the broad sealing of documents. However, the stipulation contains a provision allowing any party, upon notice and for good cause shown, to apply for modification of the stipulation - the precise relief that the named Newspaper Defendants now seek. In any event, dispositively, there is no doubt that the News Organizations, which had no involvement in publishing the disputed article, would not be bound by the judgment in this defamation action (Long Island Lighting Co. v Assessor of Town of Huntington, 251 AD2d 331 [2d Dep't 1998]).

The News Organizations similarly have not demonstrated that intervention by permission is the appropriate vehicle for review of their claims under the circumstances (see Coopersmith v Gold, 156 Misc 2d 594, 600 [motion to intervene by news media converted to motion [*3]to vacate sealing order pursuant to CPLR 5015]). CPLR 1013 allows the court to permit any person to intervene "when the person's claim or defense and the main action have a common question of law or fact." In exercising its discretion to grant intervention under this statute, "the court shall consider whether the intervention will unduly delay the determination of the action or prejudice the substantial rights of any party" (CPLR 1014). In assessing whether the exercise of discretion favors intervention, courts consider, among other factors, the extent to which the proposed intervenor has a "real and substantial interest in the outcome of the proceeding" (Plantech Housing, Inc. v Conlan, 74 AD2d 920 [2d Dep't 1980], appeal dismissed 51 NY2d 862; see also St. Joseph's Hosp. Health Center v Department of Health, 224 AD2d 1008; Alexander, Practice Commentaries, McKinneys Consol Laws of NY, Book 7B, CPLR 1013, p. 183). Proposed intervenors cannot demonstrate such a substantial common interest with either party.

Indeed, the unavailability and inappropriateness of intervention under these circumstances is best demonstrated by review of the proposed pleading submitted by the News Organizations on this motion as required by CPLR 1014 (Alexander, Practice Commentaries, McKinneys Consol. Laws of New York, Book 7B, CPLR 1014, pp. 195-196). The purpose of the pleading requirement is to demonstrate that the proposed intervenor has a real, direct and substantial interest in the outcome of the proceeding (In re Petroleum Research Fund, 3 AD2d 1 [1st Dep't 1956]). A review of the proposed complaint here demonstrates that it does not contain a claim or defense that is related to the subject matter of this defamation action (Kaczmarek v Shoffstall, 119 AD2d 1001 [4th Dep't 1986]). Thus, since intervenors are granted full party status, the inappropriateness of the News Organizations' presence as

parties to this action is eminently apparent.[FN3] Accordingly, the motion for permissive intervention is denied.

In denying intervention, the Court is mindful of the fact that the relief sought here by the intervenors - unsealing of court records - has been achieved by the motion of the named defendants in an order of this Court issued today. Accordingly, the Court is satisfied that adequate alternatives to a grant of intervention exist to ensure that the significant interest in providing public access to the courts has been safeguarded (see e.g. Kaczmarek v Shoffstall, 119 AD2d 1001, supra). Indeed, by order dated November 13, 2003, the Court unsealed the papers submitted in connection with the named Newspaper Defendants' motion to unseal, precisely to "enable potential amicus curiae" - presumably the proposed intervenors here - "to consider whether to make any filings in connection with the motion to unseal." Having invited argument on the sealing issue by media organizations pursuant to 22 NYCRR Rule 216.1, the Court has ensured that their interests would be adequately protected without the necessity of granting intervenor status. The Court has, in fact, considered the arguments of the news media in granting the named Newspaper Defendants' motion to unseal. [*4]

Many of the cases cited by the proposed intervenors in support of this motion to intervene are distinguishable, since they either involve applications by the media to intervene in Article 78 proceedings (see e.g., Matter of Ladone v Lerner, 135 AD2d 535 [media request for audio-visual coverage of criminal trial pursuant to Judiciary Law §218 and 22 NYCRR part 131) or involve Article 78 proceedings initiated by the media to obtain records, or review sealing orders or courtroom closures (see e.g. Matter of Associated Press v Owens, 160 AD2d 902; see also Matter of Herald Co., Inc. v Weisenberg, 89 AD2d 224, aff'd 59 NY2d 378; Matter of New York Times Co. v City of New York Fire Dep't., 195 Misc 2d 119). Intervention in Article 78 proceedings is governed by CPLR 7802(d), which, as the Court of Appeals has recently explained, provides a more liberal basis for intervention than CPLR 1013 (Matter of Greater New York Health Care Facilities Assn. v DeBuono, 91 NY2d 716, 720, supra; see also Matter of White v. Incorporated Village of Plandome Manor, 190 AD2d 854 [2d Dep't 1993], lv denied 83 NY2d 752; Matter of New York Times Co. v City of New York Fire Dep't., 195 Misc 2d 119, 122, supra). The proposed intervenors also cite cases involving the more leniently-worded Federal intervention statute, Rule 24(a) of the Federal Rules of Civil Procedure, which provides that intervention shall be granted as of right when the applicant "claims an interest" relating to the subject matter of the action and that interest is not adequately protected by the existing parties (see e.g. In re NASDAQ Market-Makers Antitrust Litigation, 164 FRD 346 [SDNY 1996] [LA Times had "interest relating to" the action since they were covering this story on NASDAQ]). None of the cited precedent is controlling. Nor does the inherent power of the Court to control the courtroom constitute authority to permit intervention here, as proposed intervenors contend. The Court is not authorized "to exercise that authority 'in a manner that conflicts with existing legislative command'" - namely, CPLR 1012 and 1013 (Matter of Santiago v Bristol, 273 AD2d 813, 814, lv denied 95 NY2d 848, quoting People v Mezon, 80 NY2d 155, 159).

In sum, while the proposed intervenors here have failed to demonstrate that the more narrowly worded CPLR 1012 and 1013 provide an appropriate vehicle for review of their contentions in this defamation action, the Court is satisfied that the right of the proposed intervenors to be heard pursuant to 22 NYCRR Rule 216.1 has been adequately protected and their arguments have been considered in connection with the motion to unseal by the named Newspaper Defendants. Given all of the foregoing, the motion for

intervention is denied in its entirety.

Dated: Carmel, New York

February 10, 2004

HON. FRED L. SHAPIRO

Acting Supreme Court Justice

Jerold S. Slate, Esq.

303 Mill Street [*5]

Poughkeepsie, NY 12601

Jonathan B. Bruno, Esq.

Kaufman, Borgeest & Ryan

99 Park Avenue, 19th Floor

New York, NY 10016

Henry R. Kaufman, Esq.

11 East 44th Street

Suite 900

New York, NY 10017

Melanie Ferris

33 Bertha Blvd.

Beacon, NY 12508

Doreen Ferris

14 Constitution Drive

Cold Spring, NY 10516

David E. McCraw, Esq.

Legal Department

The New York Times Company

229 W. 43rd Street

New York, NY 10036 Footnotes

Footnote 1: By order dated November 13, 2003, the Court directed the unsealing of the papers submitted on the motion to unseal.

Footnote 2: CPLR 1012(a)(1) authorizes intervention as of right "[w]hen a statute of the state confers an absolute right to intervene. No such statute is applicable here. CPLR 1012(a)(3) allows intervention as of right "[w]hen the action involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the person may be affected adversely by the judgment." No such property dispute is involved in this case.

Footnote 3: Proposed intervenors accurately cite 22 NYCRR Rule 216.1, which provides that, prior to entering a sealing order, the court must issue a written finding of good cause, and in determining whether good cause for sealing exists, "shall consider the interests of the public as well as of the parties." Although the Rule further provides that, "[w]here it appears necessary or desirable, the court may prescribe appropriate notice and opportunity to be heard" prior to entering a sealing order, the provision does not equate with an obligation to grant intervenor status to the media.