Motion for leave to prosecute Child Victim's Act claim under a pseudonym is granted.
|Claimant(s):||LG 94 DOE|
|Claimant short name:||LG 94 DOE|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK(1)|
|Footnote (defendant name) :|
|Judge:||Catherine E. Leahy-Scott|
|Claimant's attorney:||Lipsitz Green Scime Cambria LLP
By: Amy C. Keller, Esq.
|Defendant's attorney:||Hon. Letitia James, New York State Attorney General
By: Anthony Rotondi, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 22, 2021|
|See also (multicaptioned case)|
On August 13, 2021, Claimant filed this Claim pursuant to the Child Victims Act to recover damages for alleged sexual misconduct perpetrated against him at the LaSalle School in Albany, New York (see Affidavit of Amy C. Keller, Esq., Ex A [Claim]). Claimant moves by order to show cause for leave to prosecute this Claim using the pseudonym "LG 94 Doe." The undersigned executed the Order to Show Cause bringing on the motion. Defendant opposes 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 are sufficiently detailed. Specifically, Claimant sets forth in detail the long-term effects the alleged sexual abuse had upon him including "emotional distress, feelings of shame and guilt, anger, depression, anxiety, post-traumatic stress disorder, nightmares, flashbacks, sleep disturbance issues, suicidal thoughts, changes in behaviors, substance misuse, and many other psychological damages, as well as physical manifestations of these problems" (Claimant Affidavit ¶ 5 [emphasis added]). Claimant states that "public revelation of [his] identity will almost certainly exacerbate [his] injuries" (id. ¶ 7). Contrary to Defendant's contention (see Affirmation of Anthony Rotondi, Esq., Assistant Attorney General ¶ 11), Claimant indicates that he has been in treatment for these injuries (see Claimant's Affidavit ¶ 6). Although Claimant's statements regarding his injuries are not supported by a medical expert, "case law in New York has not required such corroborating evidence" (Doe, 66 Misc 3d at 626 ["requiring such level of proof at this threshold stage of the proceedings would be unprecedented"]). Indeed, Claimant's personal statements regarding his psychological injuries are similar to those determined sufficient by the Appellate Division, Fourth Department in PB-7 Doe (see 196 AD3d at 14). Moreover, the Court notes that Claimant's Affidavit is sworn to in Rensselaer County, a county adjoined to Albany County where the LaSalle School is located.
Turning to the factor analysis set forth in PB-7 Doe, in evaluating the first factor (whether the action challenges a governmental activity or an individual's actions) and the fifth factor (weighing the public's interest in guaranteeing open access to proceedings without denying claimants access to the justice system), "whether the defendants are governmental entities is significant because a challenge to governmental policy ordinarily implicates a public interest and the government has less of a concern with protecting its reputation than a private individual" (PB-7 Doe, 193 AD3d at 13, quoting Doe No. 2 v Kolko, 242 FRD 193, 195 [ED NY 2006]). Here, Claimant has brought an action against the State of New York alleging that it was negligent in, among other things, "training, hiring, selection, assignment, retention and supervision of Joseph Romano, [Claimant's assailant,]" and in the supervision of Claimant and other children in its custody (Claim ¶ 20). Consequently, these two factors militate against granting the requested relief.
As to the second factor, whether the claimant's action requires disclosure of information of the utmost intimacy, it is beyond dispute that the allegations in the Claim indicate that claimant will be required to disclose information about his past that is of the utmost intimacy. As such, this factor weighs in Claimant's favor.
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, as set forth above, Claimant's affidavit sets forth long-term psychological impacts he has suffered as a result of the alleged sexual abuse he endured at the LaSalle School (see Claimant's Affidavit ¶ 5). Moreover, Claimant states he fears an exacerbation of these injuries if his identity as a victim of child sexual abuse is made a matter of public record (see id. ¶ 7). Accordingly, Claimant's personal statements of the impact upon him are sufficient to satisfy this third factor (see PB-28 Doe v State of New York, UID No. 2021-053-544 [Ct Cl, Sampson, J., Sept. 14, 2021]).
As to the fourth factor, whether the defendant would be prejudiced by allowing the claimant to proceed anonymously, courts have held that "any prejudice to the defendant's ability to prepare a defense can be ameliorated by requiring [the] plaintiff to reveal his/her identity to defense counsel" (Doe, 66 Misc 3d at 628). Claimant contends that Defendant will not be prejudiced because Claimant's identity will be disclosed to Defendant and can be utilized during discovery (see Affidavit of Amy C. Keller, Esq., ¶ 16). Although Defendant advances several potential hardships in conducting discovery if Claimant is granted the full relief sought (Affirmation of Anthony Rotondi, Esq., Assistant Attorney General ¶¶ 14-25), these hardships are speculative at this juncture (see PB-7 Doe, 196 AD3d at 15). Consequently, the Court concludes, on balance, that this factor weighs in Claimant's favor.
Thus, upon evaluating all of the factors and balancing the interest of the public with that of Claimant, the Court grants Claimant's motion to proceed in this action with the pseudonym "LG 94 Doe." However, the Court is sensitive to Defendant's concern that Claimant's anonymity may create issues during discovery. If such issues do arise, Defendant may bring those issues to the Court's attention and an appropriate remedy will be fashioned (see e.g. LG 94 Doe v LaSalle School, Sup Ct, Albany County, August 30, 2021, Mackey, J., index No. 906506-21 [reproduced in Reply Affidavit of Amy C. Keller, Esq., Ex A]; LG 39 Doe v State of New York, UID No. 2020-053-535 [Ct Cl, Sampson, J., Aug. 24, 2020] [reproduced in Reply Affidavit of Amy C. Keller, Esq., Ex C).
Accordingly, it is hereby:
ORDERED Claimant's Motion M-97321 is GRANTED; 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 Claimant may prosecute this action using the pseudonym "LG 94 Doe"; and it is further,
ORDERED that all papers filed in this action, and all judgments, orders, decisions, notices to or from the Court, and any other documents relating to this action, shall refer to Claimant only as "LG 94 Doe," or be redacted to remove his true name, and it is further
ORDERED that Defendant and its attorneys are prohibited from publishing or otherwise disclosing Claimant's true name, or personal data or information that would permit a person to ascertain Claimant's true name, to any individual or entity, except as required to defend this action, and it is further
ORDERED that Defendant and its attorneys are required to provide a copy of this order to all individuals or entities to whom disclosure is necessary during the course of this litigation, and as a prerequisite, prior to disclosing Claimant's true identity, have each individual and/or entity sign an acknowledgment that said individual and/or entity has read and is bound by the terms of this order, and is further
ORDERED that Defendant may move the Court and request reconsideration of the relief granted to Claimant herein, upon a showing, Defendant is unable to complete pretrial discovery and investigation, as a result of the relief granted herein.
November 22, 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 October 4, 2021.
(2) Affidavit of Amy C. Keller, Esq., in Support of Motion, dated August 13, 2021, with attachments.
(3) Claimant's Affidavit, sworn to on August 13, 2021.
(4) Reply Affirmation of Anthony Rotondi, Esq., in Opposition to Motion, dated November 3, 2021.
(5) Reply Affidavit of Amy C. Keller, Esq., dated November 16, 2021, with attachments.
The caption is amended sua sponteto reflect the State of New York as the only proper Defendant.