Doe v Good Samaritan Hosp.

[*1] Doe v Good Samaritan Hosp. 2019 NY Slip Op 29367 Decided on December 3, 2019 Supreme Court, Nassau County Jaeger, 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 December 3, 2019
Supreme Court, Nassau County

Jane Doe, Plaintiff,

against

Good Samaritan Hospital, Defendant(s).



900030/2019



Counsel for Plaintiff: JORDAN K.MERSON, Esq., MERSONLAW,PLLC, 150 E. 58th Street, 34TH Floor, New York, NY 10155

Counsel for Defendant: BRIAN R. DAVEY, Esq. MULHOLLAND MINION DAVEY MCNIFF & BEYRER, 374 Hillside Avenue, Williston Park, NY 11596
Steven M. Jaeger, J.

Papers submitted:

Notice of Motion dated November 1, 2019 X

Affirmation in Opposition X

Reply Affirmation X

Sur-Reply X

On February 14, 2019, New York State enacted the Child Victims Act (L. 2019 c.11) ("CVA") which, inter alia, (1) extended the statute of limitations on criminal cases involving certain sex offenses against children under 18 (see CPL 30.10 [f]); (2) extended the time which civil actions based upon such criminal conduct may be brought until the child victim reaches 55 years old (see CPLR 208 [b]); and (3) opened a one-year window reviving civil actions for which the statute of limitations has already run (even in cases that were litigated and dismissed on limitations grounds), commencing August 14, 2019 (see CPLR 214-g).

Plaintiff submitted a prior Order to Show Cause dated August 21, 2019 seeking leave to prosecute this action brought pursuant to the Child Victims Act using a "John Doe"/"initials" designation in the caption in place of Plaintiff's true name, to redact Plaintiff's true name from all documents filed in the action, and other relief. The Order to Show Cause was supported only by an Affirmation of counsel (and the Complaint herein was verified by counsel). Defendant opposed the application by an Affirmation of counsel. The Court denied the motion with leave to renew by Order dated October 3, 2019.

Plaintiff has now renewed the motion for leave to proceed under a pseudonym and provided an affidavit of the Plaintiff.

Defendant has opposed the requested relief by an affirmation of counsel.

Plaintiff reiterated her position in a Reply Affirmation by counsel that included a copy of a decision from the Supreme Court, New York County, dated November 14, 2019 in Ark 62 Doe v Archdiocese of New York, et al. (Index No. 950053-19).

Defendant's counsel submitted a Sur-Reply (without prior leave of Court as required by the Curt's Part Rules) to respond to the "new arguments" supported by the New York County decision.

This Court's Regional CVA Part Rules specifically state that "Sur-reply papers and other additional submissions will not be considered without prior approval of the Court." Accordingly, the Court will not consider the Sur-Reply.

Plaintiff has now provided the Court with an affidavit in which she details her current employment in the NYPD Intelligence Bureau and that she is required to obtain specific security clearances as part of her continued employment. She believes that having her name disclosed publicly would attract negative attention to her and jeopardize her safety and that of others around her. She believes this would prevent her from doing her job since she provides protection to government officials and dignitaries. Plaintiff believes it is necessary for her to proceed anonymously to protect her physical and mental health, preserve her privacy, and her right to fully and fairly litigate this action.

Plaintiff agrees to provide all relevant personal information to Defendant, Defendant's counsel, and insurance carriers (if applicable), and to appear for a deposition, under the condition it is kept confidential and for use in this litigation.

Defendant opposes the requested relief. Defendant bases its opposition on:

(1) the contention it by being deprived of "sufficient notice" of Plaintiff's claim it will be prejudiced in its ability to defend itself, and(2) that Plaintiff has not identified a substantial privacy right to overcome the presumption of public access to judicial proceedings.

Defendant argues that Plaintiff's willingness to disclose relevant personal information to Defendant in a confidential manner does not eliminate the prejudice to Defendant in investigating and defending the claim. Further, Defendant contends that revived CVA actions are clearly a matter of public concern and Plaintiff has failed to show that her need for privacy outweighs Defendant's interests and the interest of the public.

Discussion and Ruling

In the prior Order herein, the Court quoted with approval the following from Doe v. Roman Catholic Archdiocese of New York, 64 Misc 3d 1220(A) (Sup. Ct., Westchester Co. 2019):

"The determination of whether to allow a plaintiff to proceed anonymously requires the court to use its discretion in balancing plaintiff's privacy interest against the presumption in favor of open trials and against any prejudice to defendant" (Anonymous v Lerner, 124 AD3d 487, 487 [1st Dept 2015] [internal quotation marks and citations omitted]; see Doe v Szul Jewelry, Inc., 2008 NY Slip Op 31382 [U] [Sup Ct, NY County 2008]. Claims of public humiliation and embarrassment are not sufficient grounds for allowing a plaintiff to proceed anonymously (Anonymous v Lerner, 124 AD3d at 487).

Further, a review of applicable New York caselaw recognizes that the factors to be considered in determining such a request are:

"whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of a sensitive and highly personal nature" (James v. Jacobson, id. at 238); whether the party seeking anonymity has an illegitimate ulterior motive; the extent to which the identity of the litigant has been kept confidential; whether identification poses a risk of mental or physical harm, harassment, ridicule or personal embarrassment; whether the case involves information of the utmost intimacy; whether the action is against a governmental entity; the magnitude of the public interest in maintaining confidentiality or knowing the party's identity; whether revealing the identity of the party will dissuade the party from bringing the lawsuit; whether the opposition to anonymity has an illegitimate basis; and whether the other side will be prejudiced by use of the pseudonym. Doe I-XXIII v. Advanced Textile Corp., supra at 1068; James v. Jacobson, id.; Doe v. Stegall, supra at 185; Doe v. The Archdiocese of Portland in Oregon, 249 F.R.D. 358, 2008 U.S. Dist. LEXIS 14575 (D.Or.); Doe v. St. Louis Co., 2008 U.S. Dist. LEXIS 2691 (E.D.Mo.); Doe v. Hartford Life Acc. & Ins. Co., supra at 549; EW v. NY Blood Center, supra at 111; Doe v. Provident Life & Acc. Ins. Co., 176 F.R.D. 464, 467-8 (E.D.Pa. 1997). A particularly relevant factor is whether "the injury litigated against would occur as a result of the disclosure of the plaintiff's identity. Doe v. N.Y.U., supra.

Doe v Szul Jewelry Inc., 2008 WL 2157893 at *5-6 (Sup. Ct., NY Co. 2008); Doe v New York Univ., 6 Misc 3d 866 (Sup. Ct., NY Co. 2004); see also, Sealed Plaintiff v Sealed Defendant, 537 F.3d 185, 189-190 (2d Cir. 2008).

"The party seeking anonymity is required to provide evidence corroborating the allegations in support of the request." Doe v The New York and Presbyterian Hosp., 2018 WL 1226046, at *3 (Sup. Ct., NY Co. 2018) (citation omitted); see also, Deer Consumer Products, Inc. v. Little, 35 Misc 3d 374, 390 (Sup. Ct, NY Co. 2012) and cases cited therein; People v P.V., 64 Misc 3d 344 at fn1 (Crim. Ct., Queens Co. 2019); Doe v Smith, 105 F. Supp. 2d 40, 44 (EDNY 1999).

Claims of public humiliation and embarrassment are not sufficient grounds alone to allow a plaintiff to proceed anonymously (Anonymous v Lerner, 124 AD3d 487 [1st Dept 2015]), but the Court should consider other factors, including whether the plaintiff's situation is compelling, involves highly sensitive matters, including social stigmatization, or involves real danger of physical harm (Doe v New York Univ., 6 Misc 3d 866, 879 [Sup Ct, NY Co. 2004]).

The Court believes that Plaintiff's reliance on Civil Rights Law §50-b in this civil proceeding is misplaced. First, §50-b requires confidentiality of all records of a public officer or employee that tend to identify the victim, including a court file. Doe v Bellmore-Merrick Cent. High School Dist., 1 Misc 3d 697, 700 (Sup. Ct., Nassau Co. 2003). Plaintiff herein does not request sealing or unavailability of the Court's records. Second, §50-b was enacted to protect the disclosure of the identity of a victim of sex crimes to ensure the victim's cooperation in criminal investigations or prosecutions. See, Doe v Kidd, 19 Misc 3d 782, 786-87 (Sup. Ct., NY Co. 2008); People v McDaniel, 81 NY2d 10 (1993). §50-b should not be extended to apply beyond the express language of the statute and the intention of the Legislature. "The legislative history reveals that the 'victim of a sex offense' contemplated by the statute is one whose cooperation is necessary [*2]toward the prosecution of a sex crime." Doe v. Kidd, supra at 787.

However, while "[i]t is elementary that the primary function of a pleading is to apprise an adverse party of the pleader's claim" the same principle does not necessarily apply to a pleader's name. Cole v. Mandell Food Stores, Inc., 93 NY2d 34, 40 (1999). Plaintiff has expressly voiced concern for her privacy, her safety and her livelihood as a law enforcement official in the Intelligence Bureau of the NYPD. This case is not brought against a government entity, a factor this Court believes might militate in favor of the public's right to know. The case involves alleged acts that will no doubt center on information concerning Plaintiff of a sensitive and highly personal nature. The Court recognizes that it is plausible that Plaintiff, as the alleged child victim of sexual abuse, has suffered emotional distress.

A grant of anonymity in this case impacts far less on the public's right to open proceedings than does the actual closing of a courtroom or the sealing of records — issues that are presently not before this Court. In the Court's view, the public interest is ultimately served in this case by the case being determined on its merits, after the parties have had an opportunity to fully and properly litigate the issues presented. Anonymity, at this juncture, will preserve the integrity of this objective. As Justice Silver noted in a CVA pending in New York County:

the right of the public, and the press, to access judicial proceedings is not absolute or unfettered, and involves judicial discretion (Lerner, 124 AD3d at 487, supra). Moreover, access may still be respected in keeping with constitutional requirements while sensitive information is restricted in keeping with "the State's legitimate concern for the well-being" of an individual (Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 606 [1982]).

Doe v Rockefeller University, No. 950172/2019, 2019 WL 6354255, at *1—2 (NY Sup. Ct. Nov. 22, 2019).

Balancing the interests of Plaintiff against that of Defendant and of the public requires consideration of numerous factors, including:

(1) whether the litigation involves matters that are "highly sensitive and [of a] personal nature," Zavaras, 139 F.3d at 803; see also James v. Jacobson, 6 F.3d 233, 238 (4th Cir.1993); Doe v. Frank, 951 F.2d 320, 323 (11th Cir.1992); (2) "whether identification poses a risk of retaliatory physical or mental harm to the ... party [seeking to proceed anonymously] or even more critically, to innocent non-parties," Jacobson, 6 F.3d at 238; see also Zavaras, 139 F.3d at 803; Doe v. Shakur, 164 F.R.D. 359, 361 (S.D.N.Y.1996); (3) whether identification presents other harms and the likely severity of those harms, see Advanced Textile Corp., 214 F.3d at 1068, including whether "the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity," Zavaras, 139 F.3d at 803; (4) whether the plaintiff is particularly vulnerable to the possible harms of disclosure, see Advanced Textile Corp., 214 F.3d at 1068, particularly in light of his age, see Jacobson, 6 F.3d at 238; see also Del Rio, 241 F.R.D. at 157; (5) whether the suit is challenging the actions of the government or that of private parties, see Jacobson, 6 F.3d at 238; Frank, 951 F.2d at 323; (6) whether the defendant is prejudiced by allowing the plaintiff to press his claims anonymously, whether the nature of that prejudice (if any) differs at any particular stage of the litigation, and whether any prejudice can be mitigated by the district court, see Advanced Textile Corp., 214 F.3d at 1068; (7) whether the plaintiff's identity has thus far been kept confidential, see Del Rio, 241 F.R.D. at 157; [*3](8) whether the public's interest in the litigation is furthered by requiring the plaintiff to disclose his identity, see Advanced Textile Corp., 214 F.3d at 1068; (9) "whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants' identities," Del Rio, 241 F.R.D. at 157; and (10) whether there are any alternative mechanisms for protecting the confidentiality of the plaintiff. cf. Aware Woman Ctr., 253 F.3d at 687.

See Sealed Plaintiff v Sealed Defendant, supra at 189-190; see also, Doe v. New York University, supra 6 Misc 3d at866.

Defendant, upon agreement of Plaintiff and by this Order, will become aware of Plaintiff's identity and may proceed with discovery using Plaintiff's true name without prejudice at this time. The Court believes the only purpose public revelation of Plaintiff's name could have would be to expose Plaintiff to the potential harms of public disclosure and perhaps deter her from litigating the matter. The public interest and the purpose of the CVA is in allowing the case to be determined on its merits, after the parties have had an opportunity to fully and fairly litigate the issues.

Upon consideration of the factors set forth in the papers submitted, the Court grants the relief requested. Accordingly, it is, for the reasons stated above, hereby

ORDERED that plaintiff's motion to proceed throughout this action under a pseudonym, rather than in plaintiff's legal name, is granted; and it is further

ORDERED that all papers filed in this action, and all judgments, orders, decisions, notices to the Court and any other document relating to the action refer to Plaintiff by the pseudonym "JANE DOE"; and it is further

ORDERED that the parties, their attorneys, and their agents refrain from publicly disclosing Plaintiff's true identity; and it is further

ORDERED that no later than ten (10) days after filing of this Order, counsel for Plaintiff will provide counsel for the Defendant with the following personal identifying information (hereinafter, "Personal Identifying Information") for the Plaintiff in this action: all complete names (including maiden names, aliases, and all other previously used names, if any), date of birth, social security number, complete names of all parents and/or guardians, current address, and address(es) at the time of the alleged incident(s) in the Complaint (if known). Defendant shall not be restricted from using the Personal Identifying Information in this litigation in any manner not inconsistent with this Order, including, but not limited to, in connection with investigation and fact-finding, discovery, negotiations (including mediation and/or arbitration), and trial or settlement.

DATED: December 3, 2019

____________________________

Hon. Steven M. Jaeger

A.J.S.C.

Mineola, NY