Motion for leave to prosecute Child Victim's Act claim under a pseudonym denied without prejudice; Claimant failed to present specific details of current circumstances to support application to proceed pseudonymously.
|Claimant short name:||C.B|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Catherine E. Leahy-Scott|
|Claimant's attorney:||Herman Law
By: Jeff Herman, Esq.
|Defendant's attorney:||Hon. Letitia James, New York State Attorney General
By: Christina Calabrese, Esq., Assistant Attorney General (No appearance)
|Third-party defendant's attorney:|
|Signature date:||November 16, 2021|
|See also (multicaptioned case)|
On July 28, 2021, Claimant filed this Claim pursuant to the Child Victims Act to recover damages for alleged sexual misconduct perpetrated at Berkshire Farm Center in Canaan, New York (see Claim No. 136687). Claimant moves by order to show cause for leave to prosecute this Claim using the pseudonym "C.B.", Claimant's initials. The undersigned executed the Order to Show Cause bringing on the motion. Defendant has not responded to the motion.
"[T]he legislature did not provide for parties who file cases seeking redress for child sexual abuse under the Child Victims Act (or otherwise) to presumptively proceed anonymously or pseudonymously" (Doe v MacFarland, 66 Misc 3d 604, 614 [Sup Ct, Rockland County 2019]; see HCVAWCR-Doe v Roman Catholic Archdiocese of N.Y., 68 Misc 3d 1215[A], 2020 NY Slip Op 50966[U], at *3 [Sup Ct, Westchester County 2020]). "The determination of whether to allow a [claimant] to proceed anonymously requires the court to use its discretion in balancing [the claimant's] privacy interest against the presumption in favor of open trials and against any potential prejudice to [the] defendant" (Anonymous v Lerner, 124 AD3d 487, 487 [1st Dept 2015] [internal quotation marks and citations omitted]). "'[E]ven where parties seek to stipulate to such relief, the trial court should not pro forma approve an anonymous caption, but should exercise its discretion to limit the public nature of judicial proceedings sparingly and then, only when unusual circumstances necessitate it'" (Applehead Pictures LLC v Perelman, 80 AD3d 181, 192 [1st Dept 2010], quoting Anonymous v Anonymous, 27 AD3d 356, 361 [1st Dept 2006]; see PB-7 Doe v Amherst Cent. Sch. Dist., 196 AD3d 9, 12 [4th Dept 2021]; HCVAWCR-Doe, 2020 NY Slip Op 50966[U], at *4 ["(i)t is not unusual for the parties to stipulate to allowing plaintiff to proceed under a pseudonym, but standing alone, it is not enough. It is the court that is tasked with such decision, and . . . that obligation cannot be delegated to the litigants or court staff in derogation of the court's duty]; see also Doe v Roman Catholic Archdiocese of N.Y., 64 Misc 3d 1220[A], 2019 NY Slip Op 51216[U], at *4 [Sup Ct, Westchester County 2019]).
"[W]hen confronted with a request to proceed using a pseudonym, a motion court must balance the interests of the parties, the public, and justice" (PB-7 Doe, 196 AD3d at 12). In PB-7 Doe, the Appellate Division, Fourth Department enunciated a five-factor balancing test for courts to utilize in evaluating a request to litigate a Child Victims Act claim anonymously. 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 (see id. at 13).
"The party seeking anonymity is required to provide evidence corroborating the allegations in support of the request" (Doe v Good Samaritan Hosp., 66 Misc 3d 444, 448 [Sup Ct, Nassau County 2019] [internal quotation marks and citation omitted]). In HCVAWCR-Doe v Roman Catholic Archdiocese of N.Y., Westchester County Supreme Court Justice Charles D. Wood expounded
"that to be granted anonymity [in a case brought pursuant to the Child Victims Act], a plaintiff must present the merits of their claim and their specific reasons for seeking anonymity. This requires more than a bare-bones affidavit with little or no detail regarding plaintiff's contacts with the county of venue or the immediate vicinity, and the other specified factors. The minimal threshold to be met requires plausible and actual, not speculative harm, and the unique personal reasons that the plaintiff should not disclose his or her identity to the public. That does not mean giving the horrendous details of the alleged sexual abuse for the application, but it does require some real facts about the plaintiff's current circumstances-where he or she lives, and social circumstances, employment, family, and other information, if relevant. The mere fact that the plaintiff has a relative of unspecified sanguinity who lives in or near the county of venue, is of little or no value to the court. The mere fact that the internet exists, is also of no value to the court. On the other hand, a highly compelling factor might be that the plaintiff has a child or grandchild currently in the school system or church parish in which the abuse arose"
(HCVAWR-Doe, 2020 NY Slip Op 50966[U], at *3-4; see A.S. v Adirondack Camp, 69 Misc 3d 1212 [A], 2020 NY Slip Op 51266[U], at *1-2 [Sup Ct, Washington County 2020]).
Thus, the Court must evaluate the sufficiency of the evidence submitted in support of the application for anonymity before balancing the competing interests at stake and exercising its discretionary authority to grant the relief (see PB-7 Doe, 196 AD3d at 13-14 [evaluating the sufficiency of the plaintiff's affidavit before applying the factors and balancing test]; Doe v Good Samaritan Hosp., 65 Misc 3d 987, 989 [Sup Ct, Nassau County 2019] [affirmation of the plaintiff's counsel did not contain sufficient details for the court to exercise its discretionary authority to determine whether the plaintiff should be permitted to proceed anonymously]).
Courts have held that "boilerplate, broad based statement[s] that disclosing . . . identity as a sexual abuse survivor may cause harm to . . . employment, family and social life in [plaintiff's present] community, and [plaintiff] may suffer further mental anguish, trauma, humiliation, re-victimization, and additional emotional harm are not sufficiently compelling" alone to permit a plaintiff to proceed anonymously (A.S. v Adirondack Camp, 70 Misc 3d 1219[A], 2021 NY Slip Op 50147[U], at *2 [Sup Ct, Washington County 2021] [internal quotation marks and citation omitted]).
The Court concludes that the affidavits submitted by Claimant and his Counsel in support of this application lacks specific details of Claimant's current circumstances to support the request to proceed pseudonymously. Specifically, Claimant alleges "I reasonably fear further psychological injury if my identity as a victim of child sexual abuse were to become known as a matter of public record" (Claimant's Affidavit 10). Said statement is devoid of any unique, personal rationale requiring anonymity (see Doe v Smith, 189 FRD 239, 243 [ED NY 1998] [denying motion seeking leave to proceed under a pseudonym where the plaintiff generally alleged she would suffer mental anguish if her name were publicized and presented "no evidence of the nature, level, or intensity of the mental injury that such stigmatization would cause her"]).
Additionally, it does not appear that Claimant resides in the community where the alleged sexual abuse occurred as Claimant's affidavit is sworn to in Cayuga County, over 200 miles from the Berkshire Farm Center (see A.S., 2021 NY Slip Op 50147, at *2). Moreover, although Claimant indicated that he has four children and has not disclosed the details of the alleged abuse to them, his affidavit contains no details regarding the children's age or residence (compare GCVAWCG-Doe, 69 Misc 3d 648, 654[Sup Ct, Westchester County 2020] [denying motion to proceed anonymously where the plaintiff indicated his father was alive and did not know about the details of the alleged abuse, but his affidavit failed to contain "any details of the father's residence, and a demonstration of actual likelihood that his father would be exposed to this information"], with Doe, 66 Misc 3d at 610-611 [granting motion to proceed anonymously where the plaintiff indicated he has two children under the age of twelve years old that were enrolled as students in the defendant school district]; and HCVAWCR-Doe, 2020 NY Slip Op 50966[U], at *4 ["the one factor that does save (the) plaintiff's application is that one of his children lives in a Connecticut city that is under ten miles from Westchester County"]).
Consequently, the Court denies the motion. However, the denial is without prejudice to afford Claimant an additional opportunity to make a sufficient evidentiary showing to proceed pseudonymously (see Adirondack Camp, 2020 NY Slip Op 51266[U], at *2).
Accordingly, it is hereby:
ORDERED Claimant's Motion M-97255 is DENIED, without prejudice; and it is further
ORDERED in the event Claimant has not already done so, Claimant shall divulge his legal name and other pertinent identifying information to Defendant within ten (10) days of filing of this Decision and Order on NYSCEF; and it is further
ORDERED that, within twenty (20) days of the filing of this Decision and Order on NYSCEF, Claimant shall upload a corrected version of the Claim to NYSCEF, containing Claimant's full name in the caption and anywhere "C.B." appears in the body of the document.
November 16, 2021
Albany , New York
Catherine E. Leahy-Scott
Judge of the Court of Claims
The Court considered the following papers in deciding this motion.
(1) Order to Show Cause, filed September 27, 2021.
(2) Affirmation of Jeff Herman, Esq., in Support of Application, dated July 28, 2021.
(3) Claim No. 136687, filed July 28, 2021.
(4) Claimant's Affidavit, sworn to on July 27, 2021.