Claimant sought leave by Order to Show Cause to proceed in this Child Victims Act claim under a pseudonym. 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 short name:||J.F.|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||HERMAN LAW
BY: Nicole T.C. Marques, Esq.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Thomas G. Ramsay, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 21, 2021|
|See also (multicaptioned case)|
The claimant filed claim no. 136492 on June 21, 2021 and a verified amended claim was filed on August 13, 2021. The claim is brought pursuant to the Child Victims Act (CPLR § 214-g) and claimant alleges that when he was a minor, he was sexually assaulted and abused at a state owned and operated facility known as the Industry Residential Center in Rush, New York. A verified answer was filed by defendant State of New York on or about September 7, 2021, denying the allegations in the claim. Claimant now seeks leave by Order to Show Cause to proceed under the pseudonym "J.F.".
In support of this motion, claimant submitted an Order to Show Cause, which was granted August 16, 2021, and included the Affirmation of Jeff Herman, Esq., dated August 13, 2021 and the Affidavit of J.F. sworn to August 6, 2021. In response, the defendant submitted a letter from Assistant Attorney General Thomas G. Ramsay stating that defendant takes no position with respect to the relief sought by claimant to proceed under the pseudonym "J.F.".FACTS
In the claim it is alleged that claimant was a resident at the Industry Residential Center in Rush, New York in Monroe County (IRC) on or about 1982 when he was approximately 13 years old until approximately 1984. The IRC is alleged to have been a secure juvenile delinquency residential facility for males that was operated by what is now known as the New York State Office of Children and Family Services (OCFS). Claimant alleges that an individual staff member identified as the "Perpetrator" worked as a counselor in the cottage to which claimant was assigned. He alleges that approximately one month after his arrival at the IRC, the Perpetrator began grooming claimant for sexual abuse and assault. The claim goes on to describe the acts of sexual abuse and assault committed by Perpetrator against claimant, which included similar acts of sexual abuse and assault that was committed by an individual identified as Perpetrator 2, who was also employed at the IRC by defendant. Claimant avers that these acts of sexual abuse and assault occurred approximately one to two times per week for approximately four to five months in 1982. Claimant further avers that this abuse by defendant's employees was reported to claimant's counselor/case worker and a cottage supervisor, both of whom were employed by defendant and despite this reporting, no investigation was ever conducted into the physical or sexual abuse and maltreatment of claimant while a resident at the IRC.
In his affidavit in support of the relief sought by Order to Show Cause, claimant avers that the acts of sexual abuse that form the basis of his claim have caused him severe emotional distress, depression and anxiety. He states that he fears further and recurring psychological injury, stress and trauma if his identity as a victim of child sexual abuse were to become a matter of public record. Claimant avers that he wishes to keep his name out of local and national news publications in that such publication would result in family members, including his children, friends and colleagues that he works with becoming aware of the intimate nature of the allegations of sexual assault and abuse. Claimant is fearful of the potential adverse impact that this public knowledge could have upon his professional reputation, employability and effectiveness should he be identified as a victim of child sexual abuse. He states that he is employed as a substance abuse peer counselor and does not want to have his identity as a victim of child sexual abuse to be the subject of conversation with his clients or colleagues if this were to become public knowledge. Claimant avers that he also fears that this could impact his educational opportunities as he plans to return to college in the fall semester of 2021 to complete a college degree. Finally, claimant avers that if he is not permitted to proceed under a pseudonym in this lawsuit, he does not know if he will proceed with this lawsuit.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, 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 OCFS, one of defendant's agencies acted negligently in allowing and permitting its employees 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 the relief sought by 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 amended verified claim and affidavit are sufficiently detailed to indicate that claimant will be required to 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 aver that he fears further and recurring psychological injury and trauma if his identity as a victim of child sexual abuse is made a matter of public record. Claimant further fears the adverse impact that public disclosure would have upon his relationship with members of his family, including his children, as well as with his clients and colleagues in his occupation as a substance abuse peer counselor. As a result of claimant's description of the scope of impact that public knowledge could have upon his personal life, I find that the claimant's personal statements of the impact upon him, his children, and his profession and future employment 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 takes no position with respect to claimant's requested relief. Furthermore, claimant avers that defendant's ability to defend this action will not be hampered as his attorney will disclose to defendant his full name and other identifying information. 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 the relief sought by 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 J.F.; 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 21, 2021
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1) Order to Show Cause with affirmation of Jeff Herman, Esq. dated August 13, 2021 and affidavit of J.F. sworn to August 6, 2021; and
2) Correspondence dated September 9, 2021 from Assistant Attorney General Thomas G. Ramsay.