Opinion
Index No. 800036/2011 Motion Seq. No. 006
07-17-2023
JENNIFER ROSENBERG, Plaintiff, v. ROBERT S GLICKMAN, D.M.D., Defendant.
Unpublished Opinion
MOTION DATE 05/05/2023
DECISION + ORDER ON MOTION
HON. JOHN J. KELLEY, Justice
The following e-filed documents, listed by NYSCEF document number (Motion 006) 21, 22, 23, 24, 25, 32,33,34,42,51,52,53 were read on this motion to/forSEAL_.
In this action to recover damages for dental malpractice, the plaintiff moves pursuant to 22 NYCRR 216.1(a) to seal all of her dental records in this action. The defendant opposes the motion. The motion is denied.
By placing her dental condition in controversy, the plaintiff has waived both the commonlaw physician-patient privilege and the physician-patient privilege recognized by the Health Insurance Portability and Accountability Act of 1996 (42 USC § 1320d, et seq.). Thus, in the first instance, all issues relevant to the plaintiff's dental treatment and ongoing dental condition became discoverable (see Winslow v New York-Presbyterian/Weill-Cornell Med. Ctr., 203 A.D.3d 533, 533 [1st Dept 2022]; Jones v FEGS-WeCARE/Human Resources, NYC, 139 A.D.3d 627, 628 [1st Dept 2016]; Giustiniani v Giustiniani, 278 A.D.2d 609, 611 [3d Dept 2000]; Monica W. v Milevoi, 252 A.D.2d 260, 262 [1st Dept 1999] [medical records]; Kaplowitz v Borden, Inc., 189 A.D.2d 90, 92-93 [1st Dept 1993] [medical records]; Napoleoni v Union Hosp., 207 A.D.2d 660, 662 [1st Dept 1994]).
22 NYCRR 216.1(a) provides, in relevant part, that
"[e]xcept where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records . . . except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties."
"[T]here is a broad presumption that the public is entitled to access to judicial proceedings and court records" (Mosallem v Berenson, 76 A.D.3d 345, 348 [1st Dept 2010]). Although the public's right to access is not absolute (see Danco Labs, v Chemical Works of Gedeon Richter, Ltd., 274 A.D.2d 1, 6 [1st Dept. 2000]), "[t]he presumption of the benefit of public access to court proceedings takes precedence, and sealing of court papers is permitted only to serve compelling objectives, such as when the need for secrecy outweighs the public's right to access" (Applehead Pictures, LLC v Perelman, 80 A.D.3d 181, 191 ; see Matter of East 51st St. Crane Collapse Litig., 106 A.D.3d 473, 474 [1st Dept 2013]; Danco Labs, v Chemical Works of Gedeon Richter, Ltd., 274 A.D.2d at 6; see also Schulte Roth &Zabel, LLP v Kassover, 80 A.D.3d 500, 501-502 [1st Dept 2011]). As the Appellate Division, First Department, has explained, it has "been reluctant to allow the sealing of court records" (Gryphon Dorn. VI, LLCvAPP Inti. Fin. Co., B.U., 28 A.D.3d 322, 324 [1st Dept 2006]; see Matter of Holmes v Winter, 110 A.D.3d 134, 138 [1st Dept 2013], revd other grounds 22 N.Y.3d 300 [2013]; Mosallem v Berenson, 76 A.D.3d at 350; see generally Davis v Nyack Hosp., 130 A.D.3d 455, 456 [1st Dept 2015]; Matter of Brownstone, 191 A.D.2d 167, 168 [1st Dept 1993]).
"Thus, the court is required to make its own inquiry to determine whether sealing is warranted, and the court will not approve wholesale sealing of [court] papers, even when both sides to the litigation request sealing" (Applehead Pictures, LLC v Perelman, 80 A.D.3d at 192 [citations omitted] [emphasis added]; see Gryphon Dorn. VI, LLC v APP Inti. Fin. Co., B.U., 28 A.D.3d at 324; Liapakis v Sullivan, 290 A.D.2d 393, 394 [1st Dept 2002]; Matter of Hofmann, 284 A.D.2d 92, 93 [1st Dept 2001] [denying request to seal court records despite the parties' confidentiality agreement]).
The party seeking to seal court records has the burden of establishing "good cause" for the sealing order (Mancheski v Gabelli Group Capital Partners, 39 A.D.3d 499, 502 [2d Dept 2007]). "Since confidentiality is the exception," the movant must establish that "public access to the documents at issue will likely result in harm to a compelling interest of the movant and that no alternative to sealing can adequately protect the threatened interest" (id. [citations omitted]). This court has discretion, on a case-by-case basis, to determine if good cause exists (see id.). Hence, where a party fails to show the existence of a compelling reason to seal a record, sealing should be denied (see Davis v Nyack Hosp., 130 A.D.3d at 456).
Neither a party's embarrassment nor a general desire for privacy is sufficient, of itself, to establish good cause for sealing a court file (see Matter of Holmes v Winter, 110 A.D.3d at 138; Mosallem v Berenson, 7Q A.D.3d at 351; Liapakis v Sullivan, 290 A.D.2d at 394; Matter of Benkert, 288 A.D.2d 247, 247 [1st Dept 2001]; Matter of Hofmann, 284 A.D.2d at 93; State of New York ex rel. Aniruddha Banerjee v Moody's Corp., 54 Mise 3d 705, 708 [Sup Ct, N.Y. County 2016]). Rather, the remedy for preventing the potential for significant embarrassment is to permit a party to proceed anonymously (see Doe v Yeshiva Univ., 195 A.D.3d 565, 566 [1st Dept 2021]). Conclusory claims of the need for confidentiality, and even the existence of a confidentiality agreement between the parties, are insufficient bases upon which to seal court records (see Matter of Benkert, 288 A.D.2d at 247; Matter of Hofmann, 284 A.D.2d at 93; Matter of Tram Thuy Nguyen, NYLJ, Feb. 23, 2016, at 22, col 6, 2016 NYLJ LEXIS 2391 [SurCt, N.Y. County, Feb. 18, 2016]; Matter of Golden, NYLJ, Jul. 16, 2015, at 24, col 1 [SurCt, N.Y. County]; Matter of Brown, NYLJ, Apr. 10, 2013, at 23, col 6 [Sur Ct, Kings County]; Matter of Soltesz, NYLJ, Jun. 29, 2015, at 25 [Sur Ct, Bronx County]).
The rule disfavoring the sealing of records in a civil action frequently has been applied to deny requests for the sealing of medical records, despite a party's contention that the records contained sensitive or embarrassing medical information (see Kelly D. v Niagara Frontier Tr. Auth., 177 A.D.3d 1261, 1264 [4th Dept 2019]; Ava v NYP Holdings, Inc., 64 A.D.3d 407, 416-417 [1st Dept 2009]; Borek v Seidman, 2023 NY Slip Op 30617[U], *3-4, 2023 NY Mise LEXIS 854, *5 [Sup Ct, N.Y. County, Mar. 3, 2023] [Kelley, J.]; Guberman v West, 2019 NY Slip Op 33508[U], *4-5, 2019 NY Mise LEXIS 6352, *5-6 [Sup Ct, N.Y. County, Nov. 21, 2019]). There is no basis for the plaintiff's contention that, if the information underlying this dental malpractice action were permitted to remain completely open to the public, her ability to obtain employment in the future would be placed in jeopardy. This court has presided over hundreds of medical and dental malpractice actions, and no party has ever claimed that his or her prosecution of a medical or dental malpractice action had adversely affected a job opportunity, either in the private sector or in government. The New York State court system processes thousands of medical and dental malpractice actions every year, and the court is aware of no study or proof that the commencement and prosecution of a medical or dental malpractice action causes or contributes to adverse employment outcomes, or that prospective employers actually learned of the existence of those actions in any event.
Accordingly, it is
ORDERED that the plaintiff's motion is denied.
This constitutes the Decision and Order of the court.