Motion for leave to prosecute Child Victim's Act claim under a pseudonym denied without prejudice; Claimant failed to present specific details of her current circumstances to support application to proceed pseudonymously.
|Claimant short name:||DOE-18987|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||The caption is amended sua sponte to reflect the State of New York as the only proper Defendant.|
|Judge:||Catherine E. Leahy-Scott|
|Claimant's attorney:||Greenstein & Milbauer, LLP
By: Michael A. Barnett, Esq.
|Defendant's attorney:||Hon. Letitia James, New York State Attorney General
By: Albert E. Masry, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 7, 2021|
|See also (multicaptioned case)|
On July 1, 2021, Claimant filed this Claim pursuant to the Child Victims Act (CVA) to recover damages for alleged sexual misconduct perpetrated at a foster care home from 1992 to 1995 and at the Children's Village from 1996 to 2000 (see Affirmation of Michael A. Barnett, Esq., Ex A [Claim] ¶ 8). Claimant moves by order to show cause for leave to prosecute this Claim using the pseudonym "John Doe-18987." The undersigned executed the Order to Show Cause bringing on the motion. Defendant takes no position on Claimant's application (see Affirmation of Albert E. Masry, Esq., Assistant Attorney General ¶ 3).
"[T]he legislature did not provide for parties who file cases seeking redress for child sexual abuse under the Child Victims Act (or otherwise) to presumptively proceed anonymously or pseudonymously" (Doe v MacFarland, 66 Misc 3d 604, 614 [Sup Ct, Rockland County 2019]; see HCVAWCR-Doe v Roman Catholic Archdiocese of N.Y., 68 Misc 3d 1215[A], 2020 NY Slip Op 50966[U], at *3 [Sup Ct, Westchester County 2020]). "The determination of whether to allow a [claimant] to proceed anonymously requires the court to use its discretion in balancing [the claimant's] privacy interest against the presumption in favor of open trials and against any potential prejudice to [the] defendant" (Anonymous v Lerner, 124 AD3d 487, 487 [1st Dept 2015] [internal quotation marks and citations omitted]). "'[E]ven where parties seek to stipulate to such relief, the trial court should not pro forma approve an anonymous caption, but should exercise its discretion to limit the public nature of judicial proceedings sparingly and then, only when unusual circumstances necessitate it'" (Applehead Pictures LLC v Perelman, 80 AD3d 181, 192 [1st Dept 2010], quoting Anonymous v Anonymous, 27 AD3d 356, 361 [1st Dept 2006]; see PB-7 v Amherst Cent. Sch. Dist., 196 AD3d 9, 12 [4th Dept 2021]; HCVAWCR-Doe, 2020 NY Slip Op 50966[U], at *4 ["(i)t is not unusual for the parties to stipulate to allowing plaintiff to proceed under a pseudonym, but standing alone, it is not enough. It is the court that is tasked with such decision, and . . . that obligation cannot be delegated to the litigants or court staff in derogation of the court's duty]; see also Doe v Roman Catholic Archdiocese of N.Y., 64 Misc 3d 1220[A], 2019 NY Slip Op 51216[U], at *4 [Sup Ct, Westchester County 2019]).
"The party seeking anonymity is required to provide evidence corroborating the allegations in support of the request" (Doe v Good Samaritan Hosp., 66 Misc 3d 444, 448 [Sup Ct, Nassau County 2019] [internal quotation marks and citation omitted]). In HCVAWCR-Doe v Roman Catholic Archdiocese of N.Y., Westchester County Supreme Court Justice Charles D. Wood expounded
"that to be granted anonymity [in a case brought pursuant to the Child Victims Act], a plaintiff must present the merits of their claim and their specific reasons for seeking anonymity. This requires more than a bare-bones affidavit with little or no detail regarding plaintiff's contacts with the county of venue or the immediate vicinity, and the other specified factors. The minimal threshold to be met requires plausible and actual, not speculative harm, and the unique personal reasons that the plaintiff should not disclose his or her identity to the public. That does not mean giving the horrendous details of the alleged sexual abuse for the application, but it does require some real facts about the plaintiff's current circumstances--where he or she lives, and social circumstances, employment, family, and other information, if relevant. The mere fact that the plaintiff has a relative of unspecified sanguinity who lives in or near the county of venue, is of little or no value to the court. The mere fact that the internet exists, is also of no value to the court. On the other hand, a highly compelling factor might be that the plaintiff has a child or grandchild currently in the school system or church parish in which the abuse arose"
(HCVAWR-Doe, 2020 NY Slip Op 50966[U], at *3-4; see A.S. v Adirondack Camp, 69 Misc 3d 1212 [A], 2020 NY Slip Op 51266[U], at *1-2 [Sup Ct, Washington County 2020]).
Courts have held that "boilerplate, broad based statement[s] that disclosing . . . identity as a sexual abuse survivor may cause harm to . . . employment, family and social life in [plaintiff's present] community, and [plaintiff] may suffer further mental anguish, trauma, humiliation, re-victimization, and additional emotional harm are not sufficiently compelling" alone to permit a plaintiff to proceed anonymously (A.S. v Adirondack Camp, 70 Misc 3d 1219[A], 2021 NY Slip Op 50147[U], at *2 [Sup Ct, Washington County 2021] [internal quotation marks and citation omitted]).
In the exercise of discretion, the Court denies Claimant's application to proceed pseudonymously. Initially, Claimant's reliance on Civil Rights Law § 50-b in support of this application for anonymity (see Affirmation of Michael A. Barnett, Esq. ¶ 11) "is misplaced because actions revived under CPLR 214-g pursuant to the CVA, such as this action, are civil in nature. CRL § 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" (HCVAWR-Doe, 2020 NY Slip Op 50966[U], at *3; see Doe v Good Samaritan Hosp., 65 Misc 3d 987, 989-990 [Sup Ct, Nassau County 2019]). As there is no indication that any such criminal investigation or prosecution is involved herein, the request seeking anonymity pursuant to Civil Rights Law § 50-b is denied (see Doe, 65 Misc 3d at 990).
Moreover, the application for anonymity must be otherwise denied. "In seeking permission to proceed using a pseudonym, the movant must submit evidence to support the relief requested, and 'the most basic prerequisite [is] an affidavit of a person with knowledge of the facts'" (PB-7 Doe, 196 AD3d at 13-14, quoting HCVAWCR-Doe, 2020 NY Slip Op 50966[U], *4). Thus, an affirmation submitted by Claimant's counsel alone is "plainly insufficient to justify granting permission to use a pseudonym" (PB-7 Doe, 196 AD3d at 13; see MGD-5 Doe v Argyle Cent. Sch. Dist., 2020 NY Slip Op 51247(U), at *1 [Sup Ct, Washington County 2020] ["Counsel likewise lacks any personal knowledge and, as such, his affirmation is just as useless"]; Doe, 65 Misc 3d at 988-989).
The present application fails to include an affidavit from Claimant, an individual with personal knowledge of the facts alleged, demonstrating the merits of the Claim and the specific reasons for seeking anonymity (see e.g. Doe, 65 Misc 3d at 988; Doe, 2019 NY Slip Op 51216[U], at *5-6; Doe v The New York Presbyterian Hosp., 2018 NY Slip Op 31587[U], *3 [Sup Ct, NY County 2018]; cf. MGD-5 Doe, 2020 NY Slip Op 51247[U], at *2 [holding the plaintiff's affidavit submitted on reply, albeit late, corroborated the allegations in support of the request for anonymity and was sufficient to grant the request]).
Accordingly, the Court denies the motion. However, the denial is without prejudice to afford Claimant an additional opportunity to make a sufficient evidentiary showing to proceed pseudonymously (see Adirondack Camp, 2020 NY Slip Op 51266[U], at *2).
Accordingly, it is hereby:
ORDERED Claimant's Motion M-97140 is DENIED, without prejudice; and it is further
ORDERED that, within twenty (20) days of the filing of this Decision and Order on NYSCEF, Claimant shall upload a corrected version of the Claim to NYSCEF, containing Claimant's full name in the caption and anywhere "John Doe-18987." appears in the body of the document.
October 7, 2021
Albany, New York
Catherine E. Leahy-Scott
Judge of the Court of Claims
The Court considered the following papers in deciding this motion.
(1) Order to Show Cause, filed September 3, 2021.
(2) Affirmation of Michael A. Barnett, Esq., in Support of Application, dated July 1, 2021 with attachment.
(3) Affirmation of Albert E. Masry, Esq., Assistant Attorney General, in Response to Claimant's Order to Show Cause, dated September 24, 2021.