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.S.|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||HERMAN LAW
BY: Nicole Marques, Esq.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Kevin A. Grossman, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 16, 2021|
|See also (multicaptioned case)|
On August 4, 2021, the claimant filed Child Victims Act (CVA) claim no. 136740, which is brought pursuant to CPLR § 214-g. Claimant alleges that when she was a minor, she was sexually assaulted and abused at Cayuga Centers, which was a juvenile detention facility in Auburn, New York, operated pursuant to a contract with the State of New York (State). A verified answer was filed by the State of New York on or about September 16, 2021, denying the allegations in the claim. Claimant now seeks leave by Order to Show Cause to proceed under the pseudonym "J.S.". Defendant does not oppose the motion.FACTS
In the claim it is alleged that claimant became a resident at Cayuga Centers group home in Auburn, New York, in approximately 1982 or 1983 when she was about 13 to 14 years old. Cayuga Centers group home is alleged to have been a secure juvenile delinquency residential facility for females that was operated pursuant to a contract with the State. The claim alleges further that New York State's Office of Children and Family Services (OCFS) was responsible for ensuring Cayuga Center's compliance with federal and local laws. Claimant alleges that an individual staff member identified as "Hal" sexually abused and assaulted her at Cayuga Centers group home. The claim describes in detail the sexual abuse and assault allegedly committed by Hal, and the locations where it occurred.
In her affidavit in support of the relief sought by Order to Show Cause, claimant avers that the sexual abuse that forms the basis of this claim has caused her severe emotional distress. She states that she fears further psychological injury if her identity as a victim of child sexual abuse were to become a matter of public record. According to claimant, she does not want her identity as a victim of childhood sexual abuse disclosed because she is and/or has been employed by State and/or County governments, and she does not want it to impact her professional reputation and relationships. Finally, claimant wants to keep her name out of local and national news publications because she fears that her past abuse will be a topic of conversation among her friends, professional colleagues and family, including her children.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 a request to use a pseudonym should not be granted automatically and that in seeking permission to use 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 13-14) (internal quotation marks and citation omitted).
The Fourth Department in PB-7 Doe and the First Department in Anonymous v Anonymous, 27 AD3d 356, 361 (1st Dept 2006) agree that even where the parties 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 any potential prejudice to defendant" (PB-7 Doe 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 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 (PB-7 Doe 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 and asserts that OCFS, one of defendant's agencies, acted negligently in failing to exercise appropriate oversight over Cayuga Centers, whose employee allegedly sexually abused and assaulted claimant. In evaluating this factor, the Fourth Department in PB-Doe 7 cites to the federal court decision in Doe No. 2 v Kolko, 242 FRD 193, 195 (ED NY 2006), finding that a governmental entity has less of a concern with protecting its reputation than a private individual. Doe No. 2 relies upon another decision from the same court, which held that "where a plaintiff attacks governmental activity, for example a governmental policy or statute, the plaintiff's interest in proceeding anonymously is considered particularly strong" (EW v New York Blood Center, 213 FRD 108, 111 [ED NY 2003]). As such, I find that this factor weighs in favor of the relief sought by claimant.
As to the second factor, whether the claimant's action requires disclosure of information of the utmost intimacy, I find that the allegations in the claim and claimant's affidavit are sufficiently detailed to indicate that claimant will be required to disclose information about her 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, it would have been preferable to have claimant's allegations supported by expert medical testimony or opinion. However, claimant's affidavit avers that she fears further psychological injury if her identity as a victim of child sexual abuse is made a matter of public record. Claimant also fears the adverse effects that public disclosure would have upon her professional reputation and relationships. I find that claimant's description of the scope of the impact that public knowledge could have upon her personal and professional life 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 object to claimant's requested relief. Furthermore, claimant avers that defendant's ability to defend this action will not be hampered as her attorney will disclose to defendant her 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. 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 four 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 factor five weighs against claimant, claimant has not sought to have this case sealed or requested that public access to pleadings or the trial be denied. As such, this minimizes the impact upon the public interest in open court proceedings. In 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.S.; 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 her 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.
December 16, 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, dated September 22, 2021, filed December 3, 2021, with Attorney Affirmation in Support of Jeff Herman, Esq. dated August 4, 2021, and affidavit of J.S. sworn to August 2, 2021; and
2) Correspondence of Kevin A. Grossman, Esq., dated September 28, 2021.