Claimant sought leave by Order to Show Cause to proceed under a pseudonym in this claim brought under the provisions of the Child Victims Act. Evaluating the factors required by the Appellate Division, Fourth Department and balancing the interest of the public with that of the claimant, claimant's motion is granted.
|Claimant(s):||In the Matter of the Claim of PB-28 DOE,|
|Claimant short name:||PB-28 DOE|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK and NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||PHILLIPS & PAOLICELLI, LLP
BY: Daniel J. Woodward, Esq.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Carlton K. Brownell, III, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 14, 2021|
|See also (multicaptioned case)|
The claimant filed claim no. 136560 on July 7, 2021, alleging sexual abuse that occurred when claimant was a minor under the provisions of the Child Victims Act (see CPLR 214-g) [CVA], CPLR 214-h and 22 NYCRR § 202.72. The defendants in this action are the State of New York and the New York State Office of Children and Family Services. Claimant now seeks leave by Order to Show Cause to proceed under the pseudonym PB-28 Doe.
In support of this motion, claimant submitted an Order to Show Cause, which was granted August 13, 2021, and included the Affirmation of Daniel J. Woodard, Esq., dated July 7, 2021; a copy of the verified Claim; the Affidavit of PB-28 Doe; the Affidavit of David G. Heffler, Ph.D., LMHC; and copies of several motion decisions from the New York State Supreme Court in which plaintiffs sought similar relief. In response, the defendants submitted a letter from Assistant Attorney General Carlton K. Brownell, III stating that there was no objection to claimant proceeding under the pseudonym PB-28 Doe or to the other terms set forth in the Order to Show Cause.FACTS
In the claim, it is alleged that claimant was a full-time residential student and resident of the Randolph Children's Home in Randolph, New York (RCH) and was approximately 12 to 14 years old when he was sexually abused. Claimant alleges that these acts began in or about 1988-1989 and continued to approximately 1991. In his affidavit in support of this motion, claimant avers that he was the victim of a prolonged course of sexual abuse and sexual assault by a female employee and staff member at RCH who he names in the claim. He alleges that the sexual abuse had a pronounced, significant and permanent effect on his life, including emotional distress, suicidal thoughts, depression, nightmares, flashbacks and physical manifestations of these problems. Claimant avers that he is a resident of Erie County and has two young children who reside in this area who are not aware of the sexual abuse that he was subject to. As such, he believes that the disclosure of his name in this litigation would not only put himself at risk for harassment, ridicule or embarrassment but would similarly put his children at risk. Finally, he alleges that if his identity is revealed to the public in the community where he resides that he would likely suffer immediate personal and/or economic hardship, backlash from the community, irreparable injury and additional stress, anxiety, emotional distress and psychological injuries.
The affidavit by David G. Heffler, Ph.D., is dated August 8, 2019, two years prior to this Order to Show Cause. In the affidavit, Dr. Heffler states that he is a licensed Mental Health Counselor in the State of New York and clinically certified Sex Offender Treatment Specialist with the National Association of Forensic Counselors. The affidavit was originally submitted in another CVA case and not by the law firm representing claimant in this action. Dr. Heffler's affidavit makes no specific reference to claimant nor does he state any personal knowledge of claimant, claimant's alleged sexual abuse or the impact of that abuse upon his life or present circumstances. Dr. Heffler offers a general opinion that the impact of being publicly identified in a CVA case could result in the same impact as the original acts and is tantamount to re-victimization. Dr. Heffler states that he strongly supports that claimants in CVA cases have the opportunity to proceed anonymously with respect to any documents filed in court.DECISION
The controlling decision as to whether and under what circumstances a claimant may proceed in a claim with the use of a pseudonym was issued on May 7, 2021 by the Appellate Division, Fourth Department in PB-7 Doe v Amherst Cent. Sch. Dist., 196 AD3d 9 [4th Dept 2021]. In that decision, the Fourth Department held that nothing in the CVA indicates that the Legislature, when enacting this statute, intended to bar the use of pseudonyms. However, the Fourth Department ruled that permission to use a pseudonym should not be granted automatically and that 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" (Id. at 14).
The Fourth Department in PB-7 Doe and the First Department in Anonymous v Anonymous, 27 AD3d 356, 261 (1st Dept 2006) both agree that even where the parties seek to stipulate to such relief, as in the present action, the court must "use its discretion in balancing plaintiff's privacy interest against the presumption in favor of open trials and against potential prejudice to defendant" (Id. at 12, citing Anonymous v Lerner, 124 AD3d 487, 487 [1st Dept 2015]). Specifically, the Fourth Department adopted the holding in the Lerner decision that public humiliation and embarrassment are not sufficient grounds for allowing a plaintiff to proceed anonymously.
What the Fourth Department does require is that the motion court balance the interests of the parties, the public, and justice. Although no single factor is to be determinative, the motion court is to consider (1) whether the claimant is challenging a governmental activity or an individual's actions; (2) whether the claimant's action requires disclosure of information of the utmost intimacy; (3) whether identification would put the claimant at risk of suffering physical or mental injury or pose a risk of retaliatory physical or mental harm to the party; (4) whether the defendant would be prejudiced by allowing the claimant to proceed anonymously; and (5) the public interest in guaranteeing open access to the justice system (Id. at 13).
As to the first factor, whether the action challenges a governmental activity or an individual's actions, claimant has brought this action against the State of New York and alleges that one of its agencies acted negligently in allowing and permitting a female employee to sexually abuse and assault claimant. The Fourth Department cites with approval a decision of the federal court that this one factor is significant because suing a governmental entity is a challenge to governmental policy implicating a public interest, as opposed to an action against a private individual (Doe No. 2 v Kolko, 242 FRD 193, 195 [ED NY2006]). As such, I find that this factor weighs against claimant but as the Fourth Department has held, no single factor is more important than another in deciding this issue (Id. at 12-13).
As to the second factor, whether the claimant's action requires disclosure of information of the utmost intimacy, I find that the allegations in claimant's affidavit are sufficiently detailed to indicate that claimant will disclose information about his past that is of the utmost intimacy. As such I find that claimant satisfies this factor.
With respect to the third factor, whether identification would put the claimant at risk of suffering physical or mental injury or pose a risk of retaliatory physical or mental harm to the party, it would have been preferable to have claimant's allegations supported by expert medical testimony or opinion. However, claimant's affidavit does allege his belief that he will sustain irreparable injury and additional stress, anxiety, emotional distress and psychological injuries if his name is disclosed in public documents filed in court. Claimant also states that he is the father of two young children residing in Erie County who are not aware of the allegations in the claim and that the disclosure of his name in this litigation would not only impact him but also his children and place himself and his children at risk for harassment, ridicule or embarrassment. The affidavit of the expert witness, Dr. Heffler, was not based on any knowledge of claimant's situation or the facts of his case and as such, is of little value in evaluating the relief sought by claimant. However, I find that the claimant's personal statements of the impact upon him and potentially his two young children are sufficient to satisfy this third factor.
As to the fourth factor, whether the defendant would be prejudiced by allowing the claimant to proceed anonymously, the defendant does not oppose claimant's relief. As such, this factor too weighs in claimant's favor.
As to the fifth factor, weighing the public's interest in guaranteeing open access to proceedings without denying claimants access to the justice system, as the action is against the State of New York, it implicates governmental policy. As with the first factor, this implicates a public interest which weighs against claimant and in favor of the public's right and interest in open access to court proceedings.
Upon evaluating all of these factors, I find that three of the five factors weigh in claimant's favor and balancing the interest of the public with that of claimant, I will grant claimant's motion to proceed in this action with a pseudonym. Although factors one and five weigh against claimant, claimant has not sought to have this case sealed or that public access to pleadings or the trial be denied. As such, this minimizes the impact upon the public interest in open court proceedings. Although granting this relief, the Court will order that claimant's counsel disclose claimant's name to defendant, so as to enable the defendant to conduct a complete and thorough investigation and pretrial discovery.
Accordingly, it is hereby ORDERED that claimant's motion to proceed anonymously is granted and all papers filed are to bear the pseudonym PB-28 Doe; and it is further
ORDERED, that the parties, their attorneys and their agents and employees are precluded from publishing or disclosing claimant's identity to the general public; and it is further
ORDERED, that the parties, their attorneys and their agents and employees are to advise all individuals and/or entities to whom disclosure of the claimant's name is necessary that they are to refrain from disclosing his identity; and it is further
ORDERED, that the defendant is to advise its employees that they are under this Court's order not to disclose the identity of the claimant; and it is further
ORDERED, that the identity of the claimant is to be redacted from any papers to be filed in this action, including at any trial of this action.
September 14, 2021
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims