Matter of Gordon v Village of Bronxville
Annotate this CaseDecided on December 17, 2004
Supreme Court, Westchester County
In the Matter of the Application of DOUGLAS GORDON & SUSAN GORDON, Petitioners, For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules,
against
VILLAGE OF BRONXVILLE and VINCENT PICI, Respondents.
13511/04
Cynthia Dolan, Esq.
Boeggeman, George, Hodges & Corde, P. C.
Attorneys for the Respondents
11 Martine Avenue
7th Floor
White Plains, New York 10606
Dorothy M. Finger, Esq.
Finger & Finger, P.C.
Attorneys for the Petitioners
158 Grand Street
White Plains, New York 10601
Christopher P. Bogart
11 Sunny Brae Place
Bronxville, New York 10708
Richard Davies, Esq.
Balber, Pickard, Battistoni, Maldonado & Van Der Tuin, P.C.
Attorneys for the Proposed Intervenors
1370 Avenue of the Americas
New York, New York 10019-4602
Mary H. Smith, J.
On November 23, 2004, the parties and counsel appeared before the Court for the purpose of a settlement conference concerning the above-captioned CPLR Article 78 proceeding pending before this Court. In essence, petitioners seek the Court's annulment of a stop-work order that had been issued concerning petitioners' substantial renovations to a home petitioners own on Sunnybrae Place, Bronxville, New York. During the settlement conference, settlement discussions occurred both on and off the record, and by the end of the day, the parties had agreed to a preliminary settlement of this proceeding that was read into the record (hereinafter the "transcript"). However, the settlement was based on certain conditions precedent occurring, and it was anticipated that the final settlement would not occur until December 31, 2004, at which time a stipulation of discontinuance would be filed with the Court. Based upon the confidentiality of the discussions leading up to the settlement (as well as the give and take discussions which occurred during the actual transcription of the preliminary settlement agreement's terms), the Court ordered on the record that the transcript be sealed.
A conference was held in this matter on December 10, 2004. The conference was initiated by an inquiry of a neighbor of petitioners, Christopher Bogart, concerning whether the [*2]Court had issued a written order sealing the transcript and setting forth the required findings of good cause to support such a sealing, which is required pursuant to 22 NYCRR § 216.1[a]. Mr. Bogart has previously appeared in this proceeding through counsel in a motion initiated by Mr. Bogart and a few other neighbors (the "proposed intervenors"). In that motion, the proposed intervenors have sought leave to intervene and have also sought a preliminary injunction from this Court which would require, among other things, (1) petitioners' removal of demolition debris from the site, and (2) petitioners' demolition of the remaining structures of the existing house. That motion is being held in abeyance pending the final settlement of this proceeding.
Appearing for the respondents Village of Bronxville and Vincent Pici was Cynthia Dolan, Esq. of Boeggeman, George, Hodges, & Corde P.C. Appearing for petitioners was Dorothy Finger, Esq., of Finger & Finger P.C. Christopher Bogart, petitioners' neighbor living at 11 Sunny Brae Place, Bronxville, New York appeared pro se and further advised the Court that he was not representing the interests of the proposed intervenors. The arguments in favor and against the continued sealing of the transcript can be reduced to these positions. Petitioners' counsel, Dorothy Finger, Esq., has advised the Court that the sealing of the discussions held during the settlement conference on November 23, 2004 is a necessary term of the preliminary settlement, and if that term is not enforced (i.e., if the Court unseals the transcript), petitioners will no longer be willing to settle this proceeding. Responsents' counsel, Cynthia Dolan, Esq. also wants the transcript to remain sealed, at least until the conditions precedent to the settlement have occurred such that the settlement becomes final on December 31, 2004. After that date, and providing that the conditions precedent have taken place, respondents have no problem with the transcript becoming unsealed. Mr. Bogart has explained his interest in having the transcript unsealed as predominantly an economic one[FN1], but has also expressed his view that the extent of construction occurring could impact his quality of life since he lives directly across the street from the construction. Based on the arguments presented, the Court finds that there is good cause supporting the continued sealing of the transcript, but that once the terms of the preliminary settlement have been memorialized in writing, and the settlement becomes final, the settlement agreement should not be sealed and should be open for public inspection.
Before a court may order the sealing of court records, the court must comply with the requirements of 22 NYCRR § 216.1[a], which provide:
"(a) Except where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties."
(22 NYCRR § 216.1[a]). One court explained the rationale for the enactment of the rule as follows:
"A court may not order sealing of its records except upon a finding of good cause. (22 [*3]NYCRR § 216.1[a] ). The rule reflects a longstanding recognition of the importance of allowing public access to court records in order to protect the general right of the public to have open court proceedings. In determining whether 'good cause' has been established for sealing records, a court must balance the public interest in disclosure in a particular case against the benefits to be derived by the parties from confidentiality."
(Matter of the Estate of Hofman, 188 Misc 2d 841, 846-847, aff'd, 284 AD2d 92).
The burden of proof falls on the party seeking to keep the records sealed, but the standard a court should apply for finding good cause is somewhat elusive. As one court noted:
"'"Good cause" is a well established legal phrase. Although difficult to define in absolute terms, it generally signifies a sound basis or legitimate need to take judicial action' .... 'Good cause' as used in section 216.1 presupposes that compelling circumstances must be shown by the party seeking to have the records sealed .... What it all boils down to, however, is the prudent exercise of the Court's discretion .... In exercise of that discretion the Court engages in a balancing process weighing the potential for harm and embarrassment to the litigants and public alike ...."
(Coopersmith v. Gold, 156 Misc 2d 594, 606; citations omitted).
Clearly, keeping the preliminary settlement intact is of great concern to the Court. However, it is also important that the sealing not impact the rights of people who are not parties to this proceeding, but who have a legitimate concern over how this matter is resolved. For example, Mr. Bogart and the other neighbors have a right to be informed as to how respondents are dealing with the issues surrounding petitioners' renovations. Indeed, despite the legal authority that would weigh against any objection they may have with regard to the settlement, the neighbors nevertheless have the right to challenge it via an appeal to a Village of Bronxville Board (presumably the Zoning Board of Appeals) and/or the courts via an Article 78 proceeding.
The Court, however, believes that there should be a distinction drawn between the disclosure of settlement negotiations and a preliminary settlement versus the disclosure of a final settlement agreement entered into by a municipality which resolves a CPLR Article 78 proceeding. The Court can understand the public's need for the disclosure of the latter, but not of the former. Indeed, courts routinely deny access to settlement negotiations and draft settlement agreements. The rationale for denying the public access to such information was aptly noted by the United States Court of Appeals, Second Circuit, in United States v. Glens Falls Newspapers Inc., 160 F3d 853, as follows: "Few cases would ever be settled if the press or public were in attendance at a settlement conference or privy to settlement proposals. A settlement conference is an opportunity for the parties, with the court acting as an impartial mediator, to have a frank discussion about the value of avoiding a trial. During these colloquies the parties are often called upon to evaluate both the strengths and weaknesses of their respective cases. As the district court in this case pointed out,At a minimum, the parties would be reticent to make any concessions at a settlement conference if they could expect that their statements would be published to the public at large. . . . Settlement positions are often extreme and [*4]should they be made public a litigant would reasonably fear being judged in the court of public opinion based upon what are nothing more than bargaining positions. These concerns would hardly encourage negotiations. The present case, of interest to the public and the press, clearly presents the need for a private forum in which to explore settlement.
(September 18, 1997 Memorandum-Decision & Order of Judge Kahn, at 18, A 340).
The public interest in settlement of this complex and expensive environmental clean-up case supports the trial court's decision to foster settlement and weighs heavily against the negligible to nonexistent presumption of access in this case. . . ."
(United States v. Glens Falls Newspapers, Inc., 160 F3d at 858).
Accordingly, in that case, the Court concluded that "the presumption of access to settlement negotiations, draft agreements, and conference statements is negligible to nonexistent. We also conclude that release of these discussions and documents is likely to impair materially the trial court's performance of its Article III function of crafting a settlement of this case. The need for a fair and efficient resolution through settlement of this complex, expensive, ten-year-old case of great public importance far outweighs the negligible presumption of access to settlement materials." (Id.).
State courts also recognize the need to keep settlement discussions confidential in the context of discovery motions. Thus, it is well settled in New York that "[a]dmissions of fact explicitly or implicitly made 'without prejudice' during settlement negotiations are protected from discovery pursuant to the public policy of encouraging and facilitating settlement .... Actions taken and observations made for the stated purpose of arriving at a settlement agreement, and expressly not for litigation, which actions would not have been accomplished except in a mutual attempt to reach a settlement, should likewise generally be protected by the same public policy of encouraging attempts at settlement." (Crow-Crimmins-Wolff & Munier v. County of Westchester, 126 AD2d 696, 697; see also Randall Elec., Inc. v. State of New York, 150 AD2d 875).
For example, in Lynbrook Glass & Architectural Metals, Corp. v. Elite Assoc., Inc., 238 AD2d 319, the Appellate Division, Second Department, held that the lower court properly exercised its discretion in denying a motion to compel the County of Nassau to disclose a mediation report that had been "prepared in connection with a mediation agreement, entered into as part of certain ongoing settlement negotiations between some of the parties to the numerous actions in this complex multiparty litigation." (Id.). The Court found that "[a]s part of their attempt to settle this matter, the parties to the mediation agreed that the report and other similar reports, prepared expressly for the mediation, were to be kept confidential. It was therefore properly held to be protected from disclosure." (Id.).
Courts are also willing, under various circumstances, to keep settlement agreements confidential and under seal. As noted by one court:
"strong policy considerations favor settlements .... A negotiated compromise of a dispute [*5]avoids potential costly, time-consuming litigation and preserves scarce judicial resources; courts could not function if every dispute required a trial ... In addition, there is a societal benefit in recognizing the autonomy of parties to shape their own solution to a controversy rather than having one judicially imposed .... Most importantly, a settlement produces finality and repose upon which people can order their affairs .... In connection with these principles it is recognized that confidentiality is, in certain circumstances, necessary in order to protect the litigants or encourage a fair resolution of the matter in controversy .... The court must weigh the goals of encouraging settlement of disputes and stemming from the burgeoning tide of litigation against the rights of those not privy to the settlement agreement. 'Courts must have the discretion to balance the competing interests of the parties, the public, and the justice systems. When this balance favors confidentiality, confidentiality should be provided.'"
(In re New York County Data Entry Worker Product Liability Litigation v. A.B. Dick Company, 162 Misc 2d 263, 267, aff'd, 222 AD2d 381). Thus, courts do not hesitate in denying the disclosure of materials that the parties have agreed to keep as confidential as a condition of their settlement agreement, where the need for the discovery is outweighed by the parties' interest in maintaining the document's confidentiality and "the policy of the courts favoring enforcement of stipulations of settlement." (See, e.g., Chemical Bank v. Arthur Andersen & Co., 143 Misc 2d 823, 828).
Here, the parties are re-negotiating some issues that have arisen as a result of
Mr. Bogart's request to have the transcript unsealed. It is anticipated that the settlement will be final by December 31, 2004 once the conditions precedent have been fulfilled. The Court has reviewed the transcript and finds that not only is the transcript somewhat confusing, but also that there were a lot of give and take negotiations occurring throughout the transcript. As a result, the parties have agreed to reduce the terms of the preliminary settlement to writing.
The Court agrees with Mr. Bogart that a community member has an interest in knowing the terms of a settlement a municipality enters into for the purposes of resolving a CPLR Article 78 proceeding. Mr. Bogart's interest in this proceeding is evident from the fact that he and his neighbors have sought leave to intervene in this proceeding. However, that interest may be satisfied through the disclosure of the written settlement agreement, which is anticipated to become final as of December 31, 2004. Mr. Bogart should not be privy to the confidential settlement negotiations and the preliminary settlement that was read into the record and is memorialized in the transcript at issue. Accordingly, the Court finds that in balancing the competing interests, the need to keep the transcript of these settlement negotiations and preliminary settlement confidential in order to achieve a settlement in this case outweighs Mr. Bogart's interest in being privy to the settlement conference held in this case (including the preliminary settlement that was read into the record). Therefore, the Court finds there is good cause to keep the transcript sealed. However, the final settlement agreement executed by the parties will not be sealed and will remain open for public inspection.
This constitutes the Opinion, Decision and Order of the Court.
[*6]
Dated: White Plains, New York
December 17, 2004
____________________________
Honorable Mary H. Smith, J.S.C.
Cynthia Dolan, Esq.
Boeggeman, George, Hodges & Corde, P. C.
Attorneys for the Respondents
11 Martine Avenue
7th Floor
White Plains, New York 10606
Dorothy M. Finger, Esq.
Finger & Finger, P.C.
Attorneys for the Petitioners
158 Grand Street
White Plains, New York 10601
Christopher P. Bogart
11 Sunny Brae Place
Bronxville, New York 10708
Richard Davies, Esq.
[*7]
Balber, Pickard, Battistoni, Maldonado & Van Der Tuin, P.C.
Attorneys for the Proposed Intervenors
1370 Avenue of the Americas
New York, New York 10019-4602
Footnotes
Footnote 1:Thus, Mr. Bogart has explained that the type of house that goes up could impact his home's property value.
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