Massel v Gibbins

[*1] Massel v Gibbins 2018 NY Slip Op 28100 Decided on March 9, 2018 Supreme Court, New York County Jaffe, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on March 9, 2018
Supreme Court, New York County

Aline Massel, Plaintiff,

against

Robert Gibbins, Defendant.



161147/2017
Barbara Jaffe, J.

The following e-filed documents, listed by NYSCEF document number 24, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 37, 38, 39, 40, 41, 42, 43 were read on this application to/for partial sealing

HON. BARBARA JAFFE:

In this action, plaintiff sues defendant for negligence and the intentional infliction of emotional distress arising from his alleged transmission to her of a venereal disease and certain other conduct. (NYSCEF 1). Defendant has not interposed an answer.

I. PERTINENT BACKGROUND

A. British action

In the latter part of 2016, defendant, an internationally prominent businessperson, brought an action in Great Britain against plaintiff, a former European beauty queen, seeking to enjoin her from contacting him and his business, enjoining publication of private information, and awarding him damages arising from her allegedly fraudulent conduct and false claims including that he transmitted to her a venereal disease. (NYSCEF 7). On defendant's motion, by order dated October 21, 2016, the British Court granted a complete sealing of the action,

[upon] consideration of [defendant's] Article 8 right to respect for private and family life and the Article 10 right of freedom of expression. And upon it appearing that the case is likely to attract publicity and that revealing the identity of the parties is likely unfairly to damage the interests of [defendant] and that, accordingly, publication of details revealing the parties' identities ought to be prohibited.

(NYSCEF 9). Although the motion issued ex parte, the Court provided therein that "[a]ny party affected by this order may apply on notice without restriction of time for an order varying or setting aside this order." (Id.). By order dated February 1, 2018, on defendant's motion, the [*2]October 2017 order was modified to permit defendant's lawyers in this, the New York litigation, upon applying to seal the court file in New York, to use all documents provided to them as they require and so advise for the purpose of representing [defendant] in the said New York action whether or not the use of disclosure of such documents identifies either [defendant] or [plaintiff] as parties to this claim.

(NYSCEF 10). Plaintiff never sought relief from these orders. Trial commenced on February 12, 2018, with decision reserved.

B. New York action

On December 15, 2017, plaintiff commenced this action. (NYSCEF 1). Two days later, an article about it appeared in the New York Post, in which plaintiff's allegations were fully set forth. (NYSCEF 11).

Now, by order to show cause, filed ex parte on February 15, 2018, defendant seeks an order sealing all papers to be filed and proceedings to be held in connection with his anticipated motion to dismiss in order to conform with the British anonymity orders. (NYSCEF 7). With defendant's knowledge and before hearing him on the order to show cause, I directed plaintiff's counsel to appear.

After hearing both parties, I signed the order to show cause, granted temporary sealing pending the hearing on the motion, gave plaintiff an opportunity to file written opposition, and set February 28, 2018, as the return date for the hearing on the motion. (NYSCEF 5).

Plaintiff timely hand-delivered its written opposition to the motion, and NYP Holdings, Inc. (Holdings), owner of the New York Post, efiled papers in opposition to the motion (NYSCEF 20-23), claiming to have been alerted by the Post reporter of defendant's duly efiled notification for sealing (NYSCEF 18). By email dated February 25, 2018, I afforded Holdings an opportunity to be heard at that time on the record and advanced the return date to February 27, 2018.

On the return date, in open court and on the record, the parties argued their respective positions on sealing, giving away nothing other than the existence of a British order of confidentiality. I gave Holdings an opportunity to file written opposition addressing the impact here of a foreign order, and gave defendant an opportunity to reply. (Tr.).

II. PERTINENT CONTENTIONS

All parties cite numerous authorities in support of their respective positions. Only their general arguments are set forth in this section.

A. Defendant's order to show cause (NYSCEF 7)

Defendant seeks an ex parte order consistent with the February 2018 British order that permits him to use certain information "so long as he seeks an Order from this Court requiring that the information be filed under seal here," and maintains that denying him relief will, in effect, "vacate" the British orders. Key to defendant's argument is his contention that he cannot fully defend himself without referencing the British action, and that given the British orders, he is precluded from defending himself here absent sealing. Thus, notwithstanding the presumption in New York that the public is entitled to access to judicial proceedings and court records, he invokes 22 NYCRR § 216.1 and claims he has good cause for sealing arising from the deference New York accords to the determinations of the British courts.

Alleging that plaintiff commenced the New York action to circumvent the British orders and to "frighten" him into paying her to stop the release of false and damaging claims, he maintains that there is no legitimate basis for opposition to his motion, and identifies the article [*3]in the New York Post and the instant litigation as evidence of her intent, and of counsel's intent to use tabloid publications to advance his clients' cases. He observes that he raised the issue of the alleged transmittal of the venereal disease in the British action as an example of a lie she had told him to induce a financial settlement. Additionally, he warns that declining to seal this action to the extent sought will encourage others to forum-shop.

B. Plaintiff in opposition to order to show cause (Affirmation of Edward W. Hayes, Esq.)

Plaintiff argues that the orders are "not internationally recognized and do not extend beyond the borders of the United Kingdom," and that defendant filed his suit in Great Britain to take advantage of its privacy laws, notwithstanding the insufficient ties to that jurisdiction. She also maintains that defendant's instant motion constitutes another example of his attempts to harass and silence her.

Relying on 22 NYCRR § 216.1, plaintiff asserts that defendant fails to demonstrate good cause or compelling circumstances justifying the sealing of the record and does not overcome the presumption of openness of court proceedings. She analogizes her case to those brought by "countless women [who] have come out publicly and shared stories of sexual harassment, harassment, and intimidation by powerful men," thus claiming that the public has a need to see these proceedings, and that defendant's wealth ought not enable him to avoid the necessary public scrutiny. Counsel justifies his prior press contact as in service of clients in desperate need of his representation, and claims that the information defendant seeks to seal is "already a matter of public record."

C. Holdings's opposition to motion to seal (NYSCEF 20-23)

As its supplemental memorandum (infra) addresses the specific issues raised, its initial papers need not be addressed.

D. Defendant's memorandum of law in opposition to NYP Holdings Inc.'s opposition

to motion to seal (NYSCEF 26)

Defendant reiterates most of the assertions and arguments advanced in the order to show cause. His British counsel supports the motion and states that the British orders bind New York counsel. (NYSCEF 27).

E. Holdings's supplemental memorandum of law in further opposition to

defendant's sealing application (NYSEF 42)

Holdings asserts that pursuant to a "public policy exception to comity," the orders are unenforceable here because they are "repugnant to the public policy of New York as embodied in the First Amendment to the United States Constitution, the free speech and press guarantees of the New York Constitution, the common law and the rules that govern this Court . . . " English courts too, it observes, decline to enforce foreign judgments that are repugnant to its public policy. (NYSCEF 42).

F. Defendant's reply in opposition to Holdings's supplemental opposition to motion to seal (NYSEF 43)

Defendant reiterates his complaint that an adaptation of plaintiff's and Holdings's position on his application would unfairly force him to choose between his rights in a foreign jurisdiction and his right to defend himself here, and again accuses plaintiff of bringing her action here as an end-run around the British orders and attempting to force him to pay her in order to avert the adverse publicity. He alleges that there is "no more appropriate venue" for the action than Britain, and denies that there is any public interest in the case.

According to defendant, a foreign judgment will be not enforced if it encompasses an [*4]"inherently vicious, wicked or immoral" transaction shocking to the "prevailing moral sense." While acknowledging that the British orders do not constitute judgments, he argues that the due process standards of the two nations are sufficiently similar such that recognition of the orders would violate no policy of this jurisdiction. He cites numerous decisions where American courts have enforced foreign judgments and where the right of access to court proceedings has been limited. He asserts that courts are given "flexibility" in determining whether there is good cause under 22 NYCRR 216.1, and that "[w]hile it may be that a New York court would not enter a similar order, that is not the standard. . . . [and that] the People of the state [of New York] are evidently quite prepared to accept that some court proceedings, or filings, will not be available to them and do not consider it 'shocking to the prevailing moral sense'; neither does it violate 'some deep rooted tradition of the common weal.'"

III. DISCUSSION

The First Department "has consistently held" that the extension of comity is "normally not extended by New York Courts to non-final, non-merit orders." (Banco Nacional De Mexico, SA v Societe Generale, 34 AD3d 124, 131 [1st Dept 2006]). Thus, absent any claim by defendant, who bears the burden of proof here, that the British orders constitute final orders on the merits, he does not satisfy his burden of proving his entitlement to recognition of them.

Even if the British orders are deemed final and on the merits, if repugnant to the first and sixth amendments to the United States Constitution, and as applied to the states by the fourteenth amendment, they would not be entitled to recognition. (See Bachchan v India Abroad Publ'ns Inc., 154 Misc 2d 228 [Sup Ct, New York County 1992] [court declined to recognize English libel judgment as repugnant to public policy as it was imposed without constitutional safeguards for freedom of speech and press]).

The right to an open courtroom and a free press are essential components of our constitutional tradition, so much so that parties cannot even stipulate to sealing a court record without a court's written finding of good cause. (Maxim Inc. v Feifer, 145 AD3d 516, 517 [1st Dept 2016]; see 22 NYCRR § 216.1). It is against this presumption of openness that the recognition of the British orders must be weighed, and "the party seeking to seal court records has the burden to demonstrate compelling circumstances to justify restricting public access" (Id., quoting Mosallem v Berenson, 76 AD3d 345, 349 [1st Dept 2010], citing Mancheski v Gabelli Group Capital Partners, 39 AD3d 499, 501 [2d Dept 2007]).

In Bachchan, an English court had awarded the plaintiff a money judgment on his cause of action for defamation against a New York news service. In determining whether the law applied by the English court was repugnant to public policy here, the court identified significant distinctions between English and American libel laws with respect to burdens of proof, and held as "antithetical" to our law, as embodied in the first amendment of the US Constitution and the free speech guarantee of the New York Constitution, the "chilling" effect of English law, whereby it places on media defendants the burden of proving the truth of a communication in a matter of public concern, and relieves a private figure from any burden of proving that a media defendant was at fault, and that the chilling effect suffices to preclude enforcement. (Id. at 234).

Here, having failed to explain or address the British Court's reliance on his "Article 8 right to respect for private and family life and the Article 10 right of freedom of expression," defendant provides no basis for a determination that British law, as applied in the two orders, is not repugnant to our law. Consequently, and again, defendant does not sustain his burden of establishing his right to recognition of these orders.

That a denial of defendant's motion could result in the dissemination of information concerning the British action does not, in these circumstances, warrant granting it, and defendant's complaint that plaintiff improperly circumvented the British orders by bringing an action here fails to account for plaintiff's allegation that he circumvented New York law by bringing his action in Britain. I also reject the contention that this action is not of public interest, and find that defendant's accusation that plaintiff brought it to extort a settlement does not constitute a persuasive argument for sealing. Laws vary among jurisdictions, thereby occasionally affording litigants a choice of fora. That choice offers no basis for sealing. Moreover, some of the information included in the British action is a matter of public record in the New York action. Finally, defendant fails to note that he has fully complied with the February 2018 British order by "applying to seal the court file in New York." Obtaining an order granting sealing was not a condition of the order, nor could it have been.

IV. CONCLUSION

Absent a sufficient ground for permitting him to file certain papers under seal, defendant fails to establish good cause for the sealing. Accordingly, it is hereby

ORDERED, that defendant's motion to seal certain documents as set forth in his order to show cause is denied in its entirety. The temporary sealing order is hereby lifted and vacated.

DATEd: 3/9/2018

Barbara Jaffe, J.S.C.