Schron v Grunstein
Annotate this CaseDecided on October 1, 2013
Supreme Court, New York County
Rubin Schron, et al., Plaintiffs,
against
Leonard Grunstein, et al., Defendants.
650702/2010
O. Peter Sherwood, J.
The background of this case is set forth in the Decision and Order, dated September 6, 2012 and will not be repeated here (see 36 Misc 3d 1238[A] [Sup Ct, NY County 2012] aff'd 105 AD3d 430 [1st Dept 2013]). On these motions, representatives of the estates of Juanita Amelia Jackson (motion sequence no. 045), Elivra Nunziata (motion sequence no. 046), Joseph Webb (motion sequence no. 047), Donald C. Hawthorne (motion sequence no. 048), and Kimberly Ann Coleman (motion sequence no. 049) (collectively, the "proposed intervenors") move to intervene, vacate sealing orders, and disclose documents and testimony. All proposed interventors are parties in pending personal injury litigations.
This action was commenced on June 23, 2010. At a preliminary proceeding on June 30, 2010, counsel for defendant SavaSeniorCenter, LLC requested "a temporary sealing of the case while we can work with counsel to figure out what should really legitimately be out there" (tr at 41, lines 5-7, NYSCEF Doc. No. 25-1). The Court ordered that eleven (11) exhibits and the transcripts of the June 24 and June 30, 2010 proceedings be sealed (NYSCEF Doc. No. 18). In the order (the "Sealing Order"), the Court characterized the application for as one "for a temporary order," and the documents be sealed "until such time as the Court otherwise orders" (id.). The documents sealed pursuant to the order are located at NYSCEF Doc. Nos. 6-1, 6-2, 6-3, 6-4, 6-5,7, 8, 8-1, 8-2, 9-3, 8-4, 12, 14, 25-1, and 25-3. No other documents are filed on NYSCEF are marked "Sealed."
On August 13, 2010, the Court so-ordered a Stipulation and Order for the Production and Exchange of Confidential Information (the "Confidentiality Order") (NYSCEF Doc. No. 64). This Order provided two methods for filing documents containing confidential information (id. ¶ 12). The first method, which no party used, allowed a party asserting confidentiality to "file by Order to Show Cause a motion to seal such Confidential Information" (id. ¶ 12 [a]). The second method, which was the only method used in this case, allowed a party filing documents "designated as comprising or containing Confidential Information" to "submit[] such documents to the Part Clerk in sealed envelopes," only to be viewed by the parties and the Court. (id. ¶ 12 [b]). Documents filed in this [*2]manner were required to "be returned by the Part Clerk upon disposition of the motion or other proceeding for which they were submitted" (id.). In other words, these documents have not been retained by the Court and were never filed under seal, as they would have been had the parties utilized the first method.
The Confidentiality Order also provided for the filing of Confidential Documents as "secure documents." (id. ¶ 12 [d]). Thus many documents filed in this case are marked "Secured." This designation was available prior to Administrative Order effective April 15, 2013, available at https://iapps.courts.state.ny.us/nyscef/forms/AO.134.13.pdf (see The Filing Process, FAQ, at 14, https://iapps.courts.state.ny.us/nyscef/FAQ]. These documents are not viewable by non-parties online, "but public inspection [is] available on computer terminals at the courthouse or County Clerk's Office (id.).
Discussion
Motion to Intervene
CPLR 1013 provides that "[u]pon timely motion, any person may be permitted to intervene in any action when a statute of the state confers a right to intervene in the discretion of the court, or when the person's claim or defense and the main action have a common question of law or fact."A party seeking to intervene must file "a proposed pleading setting forth the claim or defense for which intervention is sought" (CPLR 1014). "Intervention is liberally allowed by courts, permitting persons to intervene in actions where they have a bona fide interest in an issue involved in that action." (Yuppie Puppy Pet Prods., Inc. v Street Smart Realty, LLC, 77 AD3d 197, 201 [1st Dept 2010]).
The proposed intervenors rely on Danco Labs. v Chemical Works of Gedeon Richter (256 AD2d 62 [1st Dept 1998]), for the proposition that intervention is warranted. However, in Danco Labs, the First Department ordered the motion be "granted only to the extent of remanding [the] matter to the trial court for . . . the issuance of a written decision which shall detail the grounds underlying any finding of good cause' in accordance with the provisions of Uniform Rules for Trial Courts (22 NYCRR) § 216.1" (id.). On the contrary, "the proper procedural mechanism is to acknowledge [a non-party's] standing to seek vacatur of the temporary sealing order" (Matter of Astor, 13 Misc 3d 1203[A], 2006 NY Slip Op 51677(U), *2 [Sup Ct, NY County 2006], citing Matter of Crain Communications v Hughes, 74 NY2d 626, 628 [1989]) (see also Coopersmith v. Gold, 156 Misc 2d 594, 600 [Sup Ct, Rockland County 1992] ["[I]ntervention is not the mechanism whereby such opportunity is given. Rather, [non parties] are accorded standing to be heard, on request, prior to a ruling on closure or sealing, without the necessity of formal intervention.]). Proposed-Intervenors also assert that Crain allows "non-parties, for any reason, to intervene in any action and challenge sealing of documents. (proposed intervenor's mem of law, at 6). This overreads Crain, which specifically stated that the nonparty could obtain "relief from the sealing order via a motion to vacate pursuant to CPLR 5015(a)" (Crain, 74 NY2d at 628).
For this reason, the motion to intervene is denied.However, as the above-cited cases suggest, the Court acknowledges the proposed intervenors' standing to seek vacatur of the temporary sealing order. It is to that application that the Court now turns.
Motion to Vacate Sealing Order
[*3]The First Department "has been reluctant to allow the sealing of court records even where both sides to the litigation have asked for such sealing" (Gryphon Dom. VI, LLC v APP Intl. Fin. Co., B.V., 28 A.D3d 322, 324 [1st Dept 2006]. There is a presumption "that the public is entitled access to court proceedings.Courts must narrowly tailor any sealing order to balance legitimate needs for secrecy with the public's right to access. Courts must always make an independent determinationof good cause before granting a sealing request. (See id.). "Confidentiality is clearly the exception, not the rule" (Matter of Hoffman, 284 AD2d 92, 93-94 [1st Dept 2001]).
The circumstances warranting a sealing order are narrowly circumscribed. The First Department has found that embarrassing meritless allegationsagainst fiduciaries (Hoffman, 284 Ad2d at 94) and allegations of unethical or criminal conduct (Liapakis v Sullivan, 290 AD2d 393, 394 [1st Dept 2002]) do not outweigh the public's interest. Sealing has been authorized to protect the confidentiality of trade secrets (see Matter of Bernstein v On-Line Software Intl., 232 AD2d 336, 337 [1st Dept 1996]). However, when the public seeks access to "business information which might harm a litigant's competitive standing, and the determination of whether access to such records is appropriate is best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case" (Matter of Crain Communications v Hughes, 135 AD2d 351, 351 [1st Dept 1987], affd 74 NY2d 626, 628 [1989]).
Turning to the specific documents currently under seal, the proposed intervenors are not requesting unsealing of NYSCEF Doc. Nos. 6-1, 6-2 which are financial statements of SavaSeniorCare, LLC (see proposed intervenors reply mem of law, at 4 n 3 ["The [proposed] Intervenors are not now asking for these particular documents"]). The remaining documents filed under seal are filed publically elsewhere: NYSCEF Doc. No 6-3 was filed publically as NYSCEF Doc. No. 43-1.NYSCEF Doc. No. 6-4 was filed publically as NYSCEF Doc. No. 43-2.NYSCEF Doc. No. 6-5 was filed publically as NYSCEF Doc. No. 43-3.NYSCEF Doc. No 7 was filed publically as NYSCEF Doc. No. 43-5.NYSCEF Doc. No 8 was filed publically as NYSCEF Doc. No. 43-6.NYSCEF Doc. No 8-1 was filed publically as NYSCEF Doc. No. 43-8.NYSCEF Doc. No 8-2 was filed publically as NYSCEF Doc. No. 44.NYSCEF Doc. No 8-4 was filed publically as NYSCEF Doc. No. 45-2.NYSCEF Doc No. 8-3 was publically filed as NYSCEF Doc. 202-4.NYSCEF Doc. Nos. 12, 14, and 25-3 all contain the same document, which was filed publically as NYSCEF Doc. No. 73-4.NYSCEF Doc. No. 25-1 was publically filed as NYSCEF Doc. 78-4.
The other documents that the proposed intervenors seek to have unsealed are not actually filed under seal. These documents were provided to the Court in hard copy pursuant to the second method specified in the Confidentiality Order. All such documents have been returned to the parties in accordance with the Confidentiality Order and are not available to "unseal." Likewise, the Court has not retained unredacted versions of documents e-filed in redacted form.
Accordingly, the motion to vacate the Sealing Order is granted as to the documents filed publically and denied as to NYSCEF Doc. Nos. 6-1 and 6-2.
Motion to Disclose Documents and Testimony
In the alternative, proposed intervenors seek the disclosure of the documents submitted pursuant to the Confidentiality Order, some of which where filed in redacted form and others which the parties marked "Filed Under Seal." However proposed intervenors cite to no authority that supports the proposition that a non-party may petition the Court to compel production of documents. Therefore the motion must be denied.
Accordingly, it is
ORDERED that the branches of motion sequences 045, 046, 047, 048, and 049 seeking to intervene in this action are DENIED; and it is further
ORDERED that the branches of motion sequences 045, 046, 047, 048, and 049 seeking to vacate the Sealing Order is GRANTED as to NYSCEF Doc. Nos. 6-3, 6-4, 6-5,7, 8, 8-1, 8-2, 9-3, 8-4, 12, 14, 25-1, and 25-3 and DENIED as to NYSCEF Doc. Nos. 6-1 and 6-2; and it is further
ORDERED that the Clerk of the Supreme Court, New York County shall unseal and produce said documents; and it is further
ORDERED that the branches of motion sequences 045, 046, 047, 048, and 049 seeking to compel disclosure of documents and testimony are DENIED.
This constitutes the decision and order of the Court.
DATED: October 1, 2013
E N T E R,
______________________________
O. Peter Sherwood
J.S.C.
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