Bich v Bich
Annotate this CaseDecided on September 22, 2020
Supreme Court, New York County
Veronique Bich, Plaintiff,
against
Bruno Bich, Defendant.
652092/2020
Aronson Mayefsky & Sloan, LLP, New York, NY (Heidi Harris of counsel), for plaintiff.
Wiggin and Dana LLP, New York, NY (Steven B. Malech of counsel), for defendant.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 6, 7, 41, 42, 43, 44, 45 were read on this motion to SEAL.
This action arises from a 2008 marital agreement between plaintiff Veronique Bich and her husband Bruno Bich about the disposition of property between them in the event of a breakdown in their marital relationship. Plaintiff alleges that a breakdown has occurred within the meaning of the agreement—i.e., she is now living apart from her husband and does not intend to resume living with him. Plaintiff is not, however, seeking a divorce or legal separation from her husband. Instead, she alleges that defendant has breached the 2008 agreement, and seeks specific performance of that agreement or, in the alternative, damages she allegedly suffered due to its breach.
At the outset of the action, plaintiff brought on a motion by order to show cause seeking to seal the entire casefile. This court (Kennedy, J.) granted a temporary restraining order, pending the hearing of the motion, that sealed the file except as to "the Parties, their respective counsel, and authorized[] court personnel."[FN1] (NYSCEF No. 6 at 2.) The motion to seal is now fully briefed and ripe for decision. (See Briefing Schedule Stipulation, NYSCEF No. 8.) The motion is denied.
DISCUSSION
Plaintiff in this contract action seeks an order sealing the entire casefile and limiting access to the file "only to the parties and/or their counsel." (NYSCEF No. 6 at 1.)
This is not a matrimonial action, does not arise from or concern a written separation agreement, and does not involve a minor child. Domestic Relations Law (DRL) § 235 thus does not mandate entry of a sealing order here. Instead, plaintiff must show that "good cause" exists to seal the casefile under 22 NYCRR 202.16.
Given the public's deeply rooted constitutional and common-law "right of access to proceedings as well as to court records," and the "correlating common-law right to inspect and copy judicial records," such sealing orders are disfavored and are available "only in strictly limited circumstances." (Gryphon Dom. VI, LLC v. APP Intl. Fin. Co., B.V., 28 AD3d 322, 324 [1st Dept 2006].) That papers filed in a non-matrimonial action might disclose embarrassing or private information about adult individuals is not enough, standing alone, to warrant placing the action as a whole under seal. (See Applehead Pictures LLC v Perelman, 80 AD3d 181, 192-193 [1st Dept 2010]; accord Matter of Conservatorship of Brownstone, 191 AD2d 167, 168 [1st Dept 1993]; cf. O'Reilly v Klar, 167 AD3d 919, 920 [2d Dept 2018] [affirming sealing order on the ground that the trial court had carefully limited the order's scope to a limited number of documents closely connected to a prior matrimonial action that had involved minor children, rather than to the entire casefile]; Matter of Twentieth Century Fox Film Corp., 190 AD2d 483, 486-487 [1st Dept 1993] [directing sealing of court filings containing sensitive financial information of a child actor].)
Plaintiff argues that since this action "has at its core the breach of a marital agreement under the DRL," it should be treated no differently for sealing purposes "than an action for a breach of a separation agreement." (NYSCEF No. 42 at 2.) This court disagrees.
In enacting DRL § 235, the Legislature limited that provision's disclosure restrictions to "written agreement[s] of separation" (DRL § 235 [1]), rather than to all "marital agreements" that at some point are filed with a court. This court must give due weight to the "specific language" used by the Legislature in DRL § 235, "strictly constru[ing]" this statutory exception to New York's "presumption of openness" of judicial proceedings. (Herald Co., Inc. v Weisenberg, 59 NY2d 378, 382 [1983].) Thus, for example, an action that seeks to enforce a contract, or seeks a declaratory judgment, does not become subject to DRL § 235's restrictions merely because the underlying legal agreement or unsettled legal issue has arisen out of a marriage. (See Jensen v Jensen, 103 Misc 2d 49, 50-51 [Sup Ct, NY County 1980], superseded on other grounds by 22 NYCRR 202.5 [e] [1] [v]; Mook v Matthews, 52 Misc 2d 265, 265 [Sup Ct, NY County 1966].)
Indeed, plaintiff herself candidly admits that she has chosen not to seek a divorce or legal separation from her husband. (See NYSCEF No. 42 at 5.) Plaintiff's deliberate (and, no doubt, carefully considered) choice is entitled to be given effect—including with respect to its implications for confidentiality of the casefile in the action.[FN2] Tellingly, plaintiff cites no contrary [*2]authority supporting her position on this issue.
Plaintiff also does not attempt to identify any other basis to conclude the circumstances of this action (or the underlying marital agreement) present one of the "strictly limited" instances in which this court could properly enter a broad-scale sealing order. (Gryphon Domestic VI, 28 AD3d at 325.) To be sure, as defendant concedes, it may well be that individual documents in this action will prove upon examination to "contain confidential information that should be properly shielded from public disclosure." (NYSCEF No. 7 at 10.) This court expresses no opinion at this time on the merits of a future sealing request directed to a particular document or documents. But plaintiff has not established that the entire file in this action should categorically be sealed at the outset.
Accordingly, it is hereby
ORDERED that plaintiff's motion for an order sealing the casefile in this action is denied; and it is further
ORDERED that the temporary restraining order entered by this court on July 6, 2020, sealing the casefile pending hearing of the present motion, is vacated; and it is further
ORDERED that defendant serve notice of entry on plaintiff and on the Clerk of the Court, who is directed to lift restrictions on access to the casefile accordingly.
Dated: September 22, 2020
Hon. Gerald Lebovits
J.S.C. Footnotes
Footnote 1:This action was later transferred to the undersigned.
Footnote 2:Additionally, as defendant points out (see NYSCEF No. 7 at 8 n 9), even if the marital agreement at issue here were to be treated as a separation agreement for sealing purposes, that would not necessarily warrant sealing the entire casefile, as distinct from sealing the agreement itself and redacting portions of other papers that quote from or closely describe the terms of the agreement. (See 22 NYCRR 202.5 [e] [1] [v] [providing that the parties to a non-matrimonial action must omit or redact "any of the documents or testimony in a matrimonial action protected by Domestic Relations Law section 235 or evidence sealed by the court in such an action which are attached as exhibits or referenced in the papers filed in any other civil action"].)
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