PC-12 Doe v Diocese of Rockville Ctr.

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PC-12 Doe v Diocese of Rockville Ctr. 2020 NY Slip Op 32754(U) August 21, 2020 Supreme Court, Kings County Docket Number: 512833/2020 Judge: George J. Silver Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] KINGS COUNTY CLERK 08/24/2020 09:15 AM NYSCEF DOC. NO. 24 INDEX NO. 512833/2020 RECEIVED NYSCEF: 08/24/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------------X PC-12 DOE, Index . 512833/2020 Plaintiff, -againstDIOCESE OF ROCKVILLE CENTRE, et al. Defendants -------------------------------------------------------------------X HON. GEORGE J. SILVER: With the instant application plaintiff moves, by Order to Show Cause, for permission from this court to proceed in anonymity during this action. ARGUMENT Plaintiff argues that allowing plaintiff to proceed under a pseudonym would spare plaintiff from the stigmatization and potential embarrassment that may arise as the result of the adjudication of this matter in a public forum. Plaintiff, like other similarly situated plaintiffs, is especially concerned about renewed scrutiny that may ensue due to New York State’s enactment of the Child Victims Act (L. 2019 c.11) (“CVA”) which, inter alia, (1) extends the statute of limitations on criminal cases involving certain sex offenses against children under 18 (see CPL §30.10 [f] ); (2) extends 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) opens 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 six months after the effective date of the measure, i.e. August 14, 2019 (see CPLR §214-g). Indeed, plaintiff maintains that this case is likely to draw attention from the media, and if plaintiff is not allowed to proceed under a pseudonym, increased media attention may lead to a chilling effect that may inhibit plaintiff and other alleged victims of abuse from coming forward. In support of the instant application, plaintiff annexes a detailed personal affidavit as well as the affidavit of David G. Heffler (“Dr. Heffler”), a licensed metal health counselor and sex offender treatment specialist. Plaintiff submits that plaintiff resides in the jurisdiction where the alleged abuse occurred, and that his wife and children are unaware of the details of plaintiff’s abuse. Plaintiff also states that plaintiff’s co-workers are unaware of his alleged sexual abuse, and states that publication of plaintiff’s name would take a heavy psychological toll on him, and potentially inhibit plaintiff’s ability to continue with this lawsuit. Dr. Heffler reinforces that notion, arguing that revelation of plaintiff’s name would be “tantamount to a re-victimization.” 2 2 of 5 [*FILED: 2] KINGS COUNTY CLERK 08/24/2020 09:15 AM NYSCEF DOC. NO. 24 INDEX NO. 512833/2020 RECEIVED NYSCEF: 08/24/2020 Nevertheless, in opposition defendants FRANCISCAN BROTHERS OF BROOKLYN argue that the presumption in favor of open judicial proceedings should outweigh the use of a pseudonym, as this is not an “exceptional” circumstance wherein plaintiff should be afforded the protection of proceeding pseudonymously. In addition, defendants FRANCISCAN BROTHERS OF BROOKLYN state that there is no statutory basis for the relief sought by plaintiff, and no basis upon which to conclude that plaintiff’s allegations are credible at this juncture in the litigation. As such, defendants FRANCISCAN BROTHERS OF BROOKLYN submit that plaintiff’s application must be denied in its entirety. Notably, defendant DIOCESE OF ROCKVILLE CENTRE was served with the instant Order to Show Cause, and has consented to plaintiff proceeding with this lawsuit under a pseudonym. No additional opposition to the instant application has been mounted. DISCUSSION In general, “[t]he 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 J. Doe No. 1 v. CBS Broadcasting, Inc., 24 AD3d 215 [1st Dept 2005]; see also Doe v. Szul Jewelry, Inc., 2008 NY Slip Op 31382 [U] [Sup Ct, NY County 2008]). Among the recognized values of open access to civil proceedings is that “the bright light cast upon the judicial process by public observation diminishes the possibilities for injustice, incompetence, perjury, and fraud” (Danco Labs. v. Chemical Works of Gedeon Richter, 274 AD2d 1, 7, [1st Dept 2000]). Likewise, the very openness of the process should provide the public “with a more complete understanding of the judicial system and a better perception of its fairness” and serves to “ensure that the proceedings are conducted efficiently, honestly and fairly” (Danco, 274 AD2d at 7, supra). However, 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 wellbeing” of an individual (Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 606 [1982]). A plaintiff's privacy interests, although not recognized under New York State's common law, are found in the Civil Rights Law (“CRL”) (see Stephano v. News Group Publications, Inc., 64 NY2d 174, 182 [1984]; Arrington v. New York Times Co., 55 NY2d 433, 440 [1982]). Indeed, pursuant to CRL §50-b “The identity of any victim of a sex offense, as defined in article one hundred thirty or section 255.25, 255.26, or 255.27 of the penal law, or of an offense involving the alleged transmission of the Human Immunodeficiency Virus, shall be confidential....” However, this statute does not apply to everyone claiming to have been the victim of a sexual assault. Rather, the statute was enacted to spare victims of sexual assault the embarrassment of being publicly identified in the news media and to encourage such victims to cooperate in the prosecution of sexual offenses (see New York Bill Jacket, 1999 S.B. 5539, Ch. 643). Courts have afforded victims 3 3 of 5 [*FILED: 3] KINGS COUNTY CLERK 08/24/2020 09:15 AM NYSCEF DOC. NO. 24 INDEX NO. 512833/2020 RECEIVED NYSCEF: 08/24/2020 of sexual offenses protection under CRL §50-b where there has either been an arrest and prosecution, or there is an investigation (see People v. McDaniel, 81 NY2d 10 [1993]). In addition, 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 does not necessarily apply to a pleader’s name (Cole v. Mandell Food Stores, Inc., 93 NY2d 34, 40 [1999][emphasis added]). The instant case involves alleged acts that will no doubt center on information about plaintiff of a sensitive and highly personal nature. The court recognizes that plaintiff, as the alleged victim of sexual abuse, has arguably suffered great emotional distress. Indeed, plaintiff’s affidavit submitted in connection with the instant application states that plaintiff suffers from the lingering effects of emotional distress, embarrassment, and sexual dysfunction as a result of the alleged abuse at issue here. Moreover, plaintiff avers that denial of plaintiff’s present application would chill plaintiff, and other alleged victims of child sexual abuse, from coming forward with their claims. Dr. Heffler agrees, and submits that plaintiff is likely to endure re-victimization if plaintiff’s identify is disclosed. Decidedly, this case has not been brought against a government entity, a factor this court believes would militate in favor of the public's right to know. Instead, defendants are private entities, and therefore are not prejudiced at this time. In contrast, as previously alluded to, revelation of plaintiff’s name could unsettle plaintiff and perhaps deter plaintiff from litigating this matter. Such an outcome would undoubtedly undermine the very purpose for which the CVA was enacted. To be sure, revelation of plaintiff's identity would undermine the litigation by denying a portion of the relief ultimately requested in the action. Likewise, it is notable here that plaintiff is not relying on CRL §50-b to advance the instant application. Rather, plaintiff submits, based on the proofs annexed to plaintiff’s application, that plaintiff’s health and well-being while litigating this action outweigh the public’s interest in knowing plaintiff’s identity. Moreover, plaintiff underscores that defendants FRANCISCAN BROTHERS OF BROOKLYN have failed to advance any legitimate reason why plaintiff should not be afforded the protection of anonymity in this case. Instead, defendants FRANCISCAN BROTHERS OF BROOKLYN emphasize that they would endure prejudice while investigating this case if plaintiff is afforded the protection of anonymity. However, contrary to defendants FRANCISCAN BROTHERS OF BROOKLYN’s argument, no prejudice can be alleged where, as here, defendants FRANCISCAN BROTHERS OF BROOKLYN will be provided with plaintiff’s personal identifying information for the purpose of advancing discovery in this matter. Moreover, as recognized by plaintiff, this case differs from cases such as Doe v. Good Samaritan Hosp., 2019 N.Y. Misc. LEXIS 5383, *2-*3 (Sup. Ct. Nassau Cty. 2019), where an application to proceed under a pseudonym was denied because the record consisted of a “bare bones” affirmation of counsel. In contrast, here plaintiff has provided a detailed affidavit supported by the additional affirmation of a licensed metal health counselor, Dr. Heffler. As such, the court has a firm foundation here to support the grant of anonymity in this case. It is also notable here that since defendant DIOCESE OF ROCKVILLE CENTRE has already consented to plaintiff proceeding under a pseudonym, defendants FRANCISCAN 4 4 of 5 [*FILED: 4] KINGS COUNTY CLERK 08/24/2020 09:15 AM NYSCEF DOC. NO. 24 INDEX NO. 512833/2020 RECEIVED NYSCEF: 08/24/2020 BROTHERS OF BROOKLYN’s principal recourse to stop plaintiff from proceeding anonymously would be to seek severance (see CPLR §603). However, several legitimate factors counsel against severance in this matter. To be sure, plaintiff’s claims raise some common issues of law and fact. Moreover, the court is mindful of the interests of judicial economy that ordinarily are best served by avoiding the fragmentation of matters and instead facilitating a complete and comprehensive resolution of a dispute in a single forum (see County of Chenango Indus. Dev. Agency v. Lockwood Greene Engrs., 111 AD2d 508, 510 [3d Dept 1985]). The commonality between the claims here, and the lack of discernable prejudice, weigh against severance of this action. Finally, a grant of anonymity by this court 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 this court’s view the public ultimately has an interest in seeing this case 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 that stated objective. Accordingly, for the reasons stated above, it is hereby ORDERED that plaintiff’s motion to file a complaint and proceed herein under a pseudonym, rather than in plaintiff’s legal name, and to proceed throughout this action under such pseudonym, rather than in plaintiff’s own name, is granted; and it is further ORDERED that plaintiff serve a copy of this decision, with notice of entry, upon defendants within 20 days of this court’s decision and order; and it is further ORDERED that plaintiff personally serve defendants with the complaint within 20 days of this court’s decision and order; and it is further ORDERED that said information shall only be shared between the parties to this litigation notwithstanding any consent to share agreed to by plaintiff; and it is further ORDERED that the court shall issue a separate notice to the parties regarding a future appearance in this matter. The foregoing constitutes the decision and order of the court. Dated: August 21, 2020 __________________________________ GEORGE J. SILVER, J.S.C. 5 5 of 5

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