Opinion
Index No. 950012/2020
05-06-2020
JOHN DOE Plaintiff, v. YESHIVA UNIVERSITY, et al. Defendants
NYSCEF DOC. NO. 15 :
With the instant application plaintiff JOHN DOE ("plaintiff") moves, by Order to Show Cause, for permission from this court to proceed in anonymity during this action. Defendants YESHIVA UNIVERSITY and MARSHA STERN TALMUDICAL ACADEMY - YESHIVA UNIVERSITY HIGH SCHOOL FOR BOYS ("defendants") oppose the application, arguing that the anonymity protection sought by plaintiff would run athwart of defendants' basic due process rights.
ARGUMENT
In support of the instant application to proceed anonymously, 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. Plaintiff further highlights that the protection of anonymity is uniquely afforded to victims of sexual assault rather than to their alleged perpetrators. Moreover, plaintiff argues that revelation of defendants' names serves the public interest insofar as it alerts the public to potential institutional wrongdoing in the hopes that such wrongdoing is never repeated.
In opposition, defendants argue that plaintiff's request for this court to permit plaintiff to proceed anonymously should be denied because such a broad request is not justified in this case and would violate defendants' due process rights. In particular, defendants contend that if defendants are unable to ascertain plaintiff's true identity, defendants will be unable to defend themselves against plaintiff's claims because defendants will be incapable of connecting their alleged acts of impropriety to any specific person. This, defendants aver, would violate defendants' basic due process rights of notice and an opportunity to be heard. Citing Doe v. Roman Catholic Archdiocese, 64 Misc.3d 1220(A)(N.Y. Sup. Ct. West. County July 31, 2019, defendants submit that at least one trial court has concluded that potential embarrassment to a plaintiff does not outweigh a defendant's ability to defend itself against claims of alleged sexual abuse.
Defendants further aver that permitting plaintiff to proceed anonymously on the vague and unsubstantiated record before it would amount to a "pro forma" approval of plaintiff's application. Finally, defendants submit that, in passing the CVA, the legislature did not intend to grant plaintiffs the ability to proceed anonymously without employing the sound discretion of the courts, which by "definition requires that all cases not be rubber-stamped." Granting plaintiff the ability to proceed anonymously on this record, defendants argue, would be tantamount to a rubber stamp. Accordingly, defendants submit that denial of plaintiff's instant application is warranted.
When the parties presented for oral argument in this matter, plaintiff's counsel elaborated on the reasons why this particular plaintiff, given personal and professional considerations, would like to receive permission from the court to proceed anonymously. Plaintiff's counsel also highlighted why those reasons could not be fully detailed in plaintiff's moving papers without risking the possible disclosure of plaintiff's true identity. Plaintiff's counsel also highlighted that in circumstances akin to this, a number of defendants in the CVA litigation have consented to allowing plaintiffs to proceed anonymously. Plaintiff argues that this case should be evaluated no differently.
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 well-being" 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 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]).
Moreover, as highlighted by plaintiff in the present proceeding, the CVA was enacted with the protections codified under CRL §50-b in mind. To be sure, the legislature wanted to avoid exposing alleged victims to the lasting scars of broadcasted exposure while "help[ing] the public identify hidden child predators through civil litigation discovery, and shift the significant and lasting costs of child sexual abuse to the responsible parties."
Considering the foregoing, it is axiomatic that plaintiff should be afforded the protection of anonymity. To be sure, 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 undoubtably suffered great emotional distress. Moreover, 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. In addition, as previously discussed, plaintiff's counsel elaborated on the personal and professional reasons for the instant request when the parties presented to court on the return date of the present Order to Show Cause. Those reasons cannot be discounted here. Nor can the reason for plaintiff's counsel's inability to divulge more detail in plaintiff's moving papers. Indeed, were plaintiff required to provide the level of detail sought by defendants, plaintiff's instant application would be rendered moot as plaintiff's identity would be easily ascertainable.
Contrast that scenario with the situation faced by defendants. Defendants are private institutions, and while revelation of their identity may be perceived as impinging upon an expectation of privacy, courts have long recognized that the anonymity protection afforded to a unique subset of plaintiffs oftentimes does not extend to defendants. Indeed, among the factors considered in permitting the use of a pseudonym 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; see also Doe v. Provident Life & Acc. Ins. Co., 176 F.R.D. 464, 467-8 [E.D.Pa.1997]). Defendants' identify, were defendants seeking the same anonymity protections sought by plaintiff, would fall within the ambit of the former justification. To be sure, any embarrassment that stems from the publication of defendants' institutional names is indistinguishable from the embarrassment that is likely to befall any defendant accused of wrongdoing in a civil action. Defendants' assumption is that a plaintiff and defendants stand on an even plain as far as anonymity is concerned. This assumption is a false one under existing precedent. Moreover, as private institutions with scores of employees, defendants by definition and sheer size, are already receiving anonymity protections that do not inure to a private citizen accused of wrongdoing.
Finally, defendants' reliance on Doe v. Roman Catholic Archdiocese, 64 Misc.3d 1220(A)(N.Y. Sup. Ct. West. County July 31, 2019) is misplaced. That case involved a plaintiff who was seeking to proceed under a pseudonym while simultaneously refusing to disclose his true identity to both defendants and the court. Unlike Doe, here plaintiff has agreed to share details about plaintiff's identity with defendant so that defendants' due process rights are not violated. In return, plaintiff is simply asking defendants not to reveal those details publicly - an arrangement that has notably been accepted in the lion share of CVA cases litigated before this court.
At the end of the day, 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. Ultimately, in this court's view, the public 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, plaintiff's application seeking anonymity is granted.
Accordingly, it is, for the reasons stated above, 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 a pseudonym, rather than in plaintiff's own name, is granted; and it is further
ORDERED that plaintiffs are directed to serve a copy of this decision, with notice of entry, upon defendants within 10 days of this court's decision and order; and it is further
ORDERED that plaintiff personally serve defendants with the complaint within 20 days thereafter; and it is further
ORDERED that plaintiff provide defendants with the abovenamed plaintiff's name (including maiden names, if any), date of birth, social security number, parents and/or guardians' names, current address, and address at the time of the alleged abuse; and it is further
ORDERED that the time for defendants to appear and to answer, amend, or supplement their answers or to make any motion with relation to the summons or to the complaint in this action, be and the same hereby is extended to July 31, 2020; and it is further
ORDERED that the parties will receive a separate notice from the court regarding a future appearance in this matter.
The foregoing constitutes the decision and order of this court. Dated: 5-6-2020
/s/_________
GEORGE J. SILVER, J.S.C.