ALICIA PEREZ v. RONALD ADLER ROBERT ALPERIN BRET JACOBS NYU LANGONE HOSPITALS NYU LANGONE HEALTH SYSTEMS PREMIER IMAGING CENTER LLC THE MOUNT SINAI HOSPITAL MOUNT SINAI HEALTH SYSTEM INC JOHN AND JANE DOES ABC ENTITIES (2026)

The following e-filed documents, listed by NYSCEF document number (Motion 001) 61, 62, 63, 64, 65 were read on this motion to/for ATTORNEY - FEES.

In this action to recover damages for medical malpractice based on alleged departures from good and accepted practice, lack of informed consent, and loss of spousal consortium, the plaintiffs' attorney, Porter Law Group, moves pursuant to Judiciary Law § 474-a(4) for an award of an enhanced attorney's fee, based on its contention that the fee schedule set forth in Judiciary Law § 474-a(2) will not afford it adequate compensation due to extraordinary circumstances. It also moves pursuant to 22 NYCRR 216.1(a) to seal the docket entries in this action referable to the amount for which they settled the action on September 2, 2025, and the amount of the fees to be awarded to them. Although the defendants do not oppose the motion, and the plaintiffs themselves join in their attorney's requests, the motion is denied, since Porter Law Group failed to establish that the fees that it would be awarded pursuant to the Judiciary Law § 474-a(2) schedule would be inadequate, or that extraordinary circumstances require the award of an enhanced fee, and because it did not establish good cause for sealing the relevant docket entries.

Initially, the court notes that fees premised upon the schedule set forth in Judiciary Law § 474-a(2) "are calculated on the net sum recovered by the plaintiff after deducting 'full expenses and disbursements for expert testimony and investigative or other services properly chargeable to the enforcement of the claim or prosecution of the action' " (Yalango by Goldberg v Popp, 84 NY2d 601, 606 [1994], quoting Judiciary Law § 474-a[3] [emphasis added]). The Legislature, however, amended Judiciary Law § 488(2)(d) in 2006 (see L 2006, ch 635, § 1) to provide that, "in an action in which an attorney's fee is payable in whole or in part as a percentage of the recovery in the action," a client may, under certain circumstances, elect to have the attorney pay, on his or her "own account court costs and expenses of litigation," and, "[i]n such case, the fee paid to the attorney from the proceeds of the action may include an amount equal to such costs and expenses incurred" (Judiciary Law § 488[2][d]; 22 NYCRR 603.25[e][3][ii]). Nonetheless, 22 NYCRR 603.25(e)(1) only permits an attorney to calculate attorneys' fees on the gross amount of recovery for "any claim or action for personal injury or wrongful death, other than one alleging medical, dental or podiatric malpractice" (id.) (emphasis added) (see Rosario v New York Presbyterian Hosp., 2025 NY Slip Op 32138[U], *4 n 1, 2025 NY Misc LEXIS 5600, *5-6 n 1 [Sup Ct, NY County, Jun. 13, 2025] [Kelley, J.]; Matter of Barnhart, 2016 NYLJ LEXIS 306, *1-2 [Surr Ct, Bronx County, Sep. 13, 2016]). Thus, the calculation of fees here must be based on the net recovery, regardless of whether it may be enhanced or not.

The sliding-scale fee schedule articulated in Judiciary Law § 474-a(2) provides that an attorney who recovers money for clients in a medical malpractice action is entitled to a fee equal to 30% of the first $250,000 of the net sum recovered, 25% of the next $250,000 of the net sum recovered, 20% percent of the next $500,000 of the net sum recovered, 15% of the next $250,000 of the net sum recovered, and 10% of any amount over $1,250,000 of the net sum recovered. This court, based on its approvals of settlements too numerous to recount, notes that, in medical malpractice actions that have been settled for multiple millions of dollars, the Judiciary Law sliding scale fee schedule affords a plaintiff's attorney an approximate fee award of 11% to 12% of the net recovery. This action was settled for the gross sum of $6,000,000.00, after Porter Law Group had expended the sum of $55,068.70 in costs and disbursements, leaving a net recovery of $5,944,931.30. Application of Judiciary Law § 474-a(2) to these amounts would entitle Porter Law Group to a fee of $744,493.13, which, along with the reimbursement of its expenses, would permit Porter Law Group to retain the total sum of $799,561.83 from the $6,000,000.00 settlement, leaving the sum of $5,200,438.17, of which $599,548.09 would be allocated to satisfaction of an ERISA lien, and $4,600,890.08 would be remitted to the plaintiffs. The $744,493.13 fee would constitute a contingency fee of 12.5% of the net recovery here. Porter Law Group contended that its retainer agreement with the plaintiffs authorized it to petition the court to award it a fee equal to 331/313% of the net recovery, and it now requests that, instead of the fee scale set forth in Judiciary Law § 474-a(2), the court award it a fee calculated by waiving fees on the first $400,000.00 of the net settlement proceeds, "reducing" the fee on the remaining proceeds to 30%, and waiving a fee on its successful efforts to reduce the ERISA lien by $106,013.55. Were the court to approve this request, Porter Law Group would stand to retain the sum of $1,633,479.39 as a fee, which, along with the reimbursement of its expenses, would permit it to retain the total sum of $1,688,548.09 from the $6,000,000.00 settlement, leaving the sum of $4,311,451,91, of which $599,548.09 would be allocated to satisfaction of the ERISA lien, and only $3,711,903.82 would be remitted to the plaintiffs. A fee of $1,633,479.39 would constitute a contingency fee of 27.48% of the net recovery here. The court concludes that the award of such a fee is unwarranted.

In reversing an award of enhanced fees in a medical malpractice action, the Court of Appeals explained in Yalango that

"[i]nadequacy of the statutory fee schedule is the touchstone of the section 474-a (4) inquiry. The analysis must begin with the recognition that the section 474-a (2) scheduled fees are presumptively reasonable in all malpractice cases (see, Gair v Peck, 6 NY2d 97, 113, 114, supra). To succeed on a request for excess compensation, then, the applicant bears the burden of rebutting that presumption by establishing that the fee schedule was inadequate to compensate counsel for the representation provided in the particular case (id.; Matter of Clinton, 157 Misc 2d 506, 510, supra). Thus, before departing from the statutory fee schedule, the court must make a threshold finding that a departure from the fee schedule is justified because the authorized fee did not equitably compensate counsel. That a threshold showing of inadequacy must be made before relief based on extraordinary circumstances may be granted is self-evident from the plain and unequivocal language of the statute which expressly calls for that predicate . . .

"The considerations which are relevant to an assessment of the adequacy of the section 474-a(2) fees are those related to the economics of the litigation and any concomitant financial hardship suffered by plaintiff's counsel. In other words, in determining whether extraordinary circumstances caused the fee to be inadequate, governing emphasis should be placed on whether the award--viewed as a whole or broken down to its hourly equivalent--equitably compensates counsel for 'the amount of time reasonably and necessarily spent' in litigating the claim (People v Perry, 27 AD2d 154, 161). Under this formulation, the statutory fee may be inadequate, for example, where the case involves an extremely complicated procedural history or where plaintiff's counsel is required to expend an inordinate amount of time in pursuing the medical malpractice claim, thereby rendering the hourly rate of compensation exceptionally low or causing a loss of other income or some other financial detriment. Once that threshold showing is made, counsel must then justify a departure from the fee schedule by demonstrating that extraordinary circumstances caused the statutory fees to be unreasonable in the particular case"

(Yalango by Goldberg v Popp, 84 NY2d at 607-608).

In the Yalango action, a computed tomography scan of the patient's brain revealed a collection of fluid, known as bifrontal subdural hygromas, and, when the patient's condition deteriorated on the following day, the defendant physician performed emergency surgery to relieve the pressure on the patient's brain. The patient ultimately sustained severe and permanent injuries, including brain damage, spastic quadriparesis, and cortical blindness, and required continuous skilled nursing care for the remainder of his life. The parties settled the action for the gross sum of $1,930,000.00. Based on the sliding scale fee schedule of Judiciary Law § 474-a(2), the plaintiff's attorney would have been entitled to a fee in the amount of $338,731.74, but he moved for approval of an enhanced fee award, equal to one third of the net recovery, that is, a fee of $629,105.81. The Court of Appeals held that the statutory fee award of $338,731.74 was not inadequate. In this respect, it reasoned that, although the plaintiff's attorney expended 620 hours in representing the plaintiff over a five-year period, including meeting with experts both in and out of state, conducting extensive depositions covering over 1,000 pages of transcript, and negotiating a favorable medical malpractice settlement despite sharply disputed causation issues, the application of the statutory schedule compensated the attorney at a rate of almost $550.00 per hour (see id. at 608-609). Inasmuch as the Court concluded that the plaintiff's attorney did not make the requisite threshold showing that his compensation was inadequate, it concluded that it need not even reach the issue of whether there were extraordinary circumstances warranting the award of an enhanced fee.

Similarly, in Siu Kiu Lam v Loo (155 AD3d 660 [2d Dept 2017]), the attorney for the plaintiff prosecuting that medical malpractice failed to establish the inadequacy of an award of attorney's fees in the sum of $376,198.50, as calculated pursuant to the Judiciary Law § 474-a(2) schedule. The Court explained that

"[t]he law firm expended approximately 970 hours, that included 9 days of trial, over the course of the 7½ years it represented the plaintiffs in this medical malpractice action . . . The record is devoid of any evidence that the amount of time spent on the representation of the plaintiffs resulted in an exceptionally low hourly rate of compensation, or that it caused the law firm any financial detriment"

(id. at 660 [emphasis added]). As in the Yalango case, the Appellate Division, Second Department, concluded that "[i]nasmuch as the law firm failed to make the threshold showing that compensation in this case was inadequate, it is not necessary to reach the issue of whether extraordinary circumstances existed" (id.). In Ponzo v Landskowsky (2019 NY Slip Op 33006[U], *2-3, 2019 NY Misc LEXIS 5447, *2 [Sup Ct, Kings County, Oct. 4, 2019]), the court denied the request of the plaintiff's attorneys for an award of "25% of the net recovery after the claimed disbursements are deducted, or $672,996.82," which they "based on the 'numerous obstacles' presented by the case and the 'extraordinary efforts' on behalf of their client." While the court did not dispute those efforts, it nonetheless concluded that the record did not demonstrate that " 'the amount of time spent on the representation of plaintiffs resulted in an exceptionally low hourly rate of compensation, or that it caused the law firm any financial detriment' " (id., quoting Siu Kiu Lam v Loo, 155 AD3d at 660). The court in Ponzo explained that the plaintiff's attorneys did not indicate whether the time devoted to the plaintiff's case detracted from the firm's work on other cases, imposed a hardship on the firm, or otherwise rendered the statutory fee exceptionally low (see Ponzo v Landskowsky, 2019 NY Slip Op 33006[U], *3, 2019 NY Misc LEXIS 5447, *2). The Ponzo court further concluded that

"[e]ven if the threshold of inadequacy had been met, extraordinary circumstances do not exist in this case to warrant an enhanced fee. '[F]actors such as the degree of diligence or success achieved by counsel . . .do not render a case extraordinary for purposes of the section 474-a(4) application' ([Yalango] at 609) The efforts and obstacles described by counsel are generally customary in prosecuting a medical malpractice action. 'Medical malpractice actions are by their nature complex, warranting extensive and sophisticated preparation' (id. at 610). The complexity of a medical issue or problems with proximate cause will not render a case 'extraordinary' (id.). In this case, plaintiff's decedent's death did not create any unusual or exceptional circumstances that would not ordinarily be present in any other medical malpractice action involving a terminally ill patient. Conducting a deposition at home, retaining an expert to opine on the cause of death, petitioning for letters of administration and amending the complaint are all expected consequences of representing a plaintiff who is terminally ill. Similarly, spending considerable time searching and consulting with different experts, digesting voluminous depositions and medical records, and learning about a plaintiff's illness are all within the usual scope of representing a medical malpractice plaintiff"

(id., 2019 NY Slip Op 33006[U], *4, 2019 NY Misc LEXIS 5447, *3-5 [emphasis added]).

This court concludes that, under the circumstances presented in this action, which, although remarkably similar to those presented in Yalango, Siu Kiu Lam, and Ponzo, are even less compelling, the award of an enhanced fee to the plaintiff's attorney is not warranted.

In the first instance, the court is concerned that, although the plaintiffs themselves submitted an affidavit in which they agreed with everything asserted in the Porter Law Group's motion papers, they did not expressly indicate that they recognized that they would be forfeiting the sum of $888,986.26 to which they otherwise would be entitled. Moreover, the actual litigation time in which the Porter Law Group was involved spanned less than three years. Assuming, without accepting, Porter Law Group's contention that it invested 2,500 hours in litigating the action, the statutorily authorized fee of $744,493.13 would be equivalent to almost $300.00 per hour. The papers submitted to the court, however, do not even enumerate the number of hours spent on each task alleged to have been necessary to the litigation and the settlement of the action. Hence, Porter Law Group failed to establish that the amount of compensation to which it was entitled pursuant to the Judiciary Law was somehow inadequate, and this court thus need not reach the issue of whether the circumstances presented here were extraordinary.

Even were the court to reach that issue, it concludes that, in light of the relatively short length of time that it took to resolve the action, the work undertaken by the Porter Law Group, although certainly of substantial quality, and yielding a truly excellent result, does not present a case of "extraordinary circumstances." In his affirmation, Porter Law Group principal Michael S. Porter asserted, without supporting proof, that the litigation of this action between February 10, 2023 and September 2, 2025, was

"the functional equivalent of prosecuting two separate cases simultaneously against distinct groups of defendants, each involving independent and highly specialized theories of negligence—radiological malpractice on one hand, and distinct departures from accepted standards of care in the primary care setting."

According to Porter, this "dual-track litigation required the development of complex, and at times competing, liability theories that nevertheless had to be presented and litigated in a unified and persuasive manner to the Defendants." He averred that the purported complexity of the liability issues was "compounded by the even more demanding causation proof." As he described it,

"[e]stablishing causation required the retention and coordination of multiple oncology and surgical experts to address nuanced and interrelated medical issues. The degree of difficulty associated with synthesizing these opinions into a coherent and compelling causation narrative significantly exceeded that encountered in the ordinary course of malpractice litigation, and required a high level of skill and strategic judgment."

In addition, Porter asserted that the risks that his firm assumed were "substantial" because the presence of multiple defendants advancing divergent and, at times, mutually reinforcing, defenses, created an additional layer of litigation risk, and that "[o]vercoming that dynamic required extensive expert development and a carefully constructed theory of the case capable of withstanding coordinated defense strategies." He attested that the litigation was vigorously contested at every stage because both groups of defendants had "made clear that they had no interest in resolving the matter," and that, "[a]lthough they eventually participated in mediation, their initial settlement positions were nominal in light of the case's true value." Porter explained that the first mediation session that was conducted was unsuccessful, while the defendants and their insurers allegedly "resisted nearly all efforts to resume meaningful settlement discussions —further underscoring the risk and uncertainty of continued litigation."

Porter contended that his firm properly advised the plaintiffs to reject multiple substantial settlement offers based on a reasoned assessment that continued litigation would yield a materially greater recovery. Porter described the time and labor devoted to this case as "extraordinary," and asserted that his firm had only invested comparable resources in one other matter. More specifically, Porter alleged that Porter Law Group undertook the following tasks:

"preliminary investigation of the underlying circumstances of the malpractice including initial conversations and meetings with Plaintiffs;

"comprehensive review and analysis of Plaintiff Carl Skeris's medical records obtained by PLG prior to litigation;

"medical research concerning the relevant anatomy and subject disease (synovial sarcoma);

"meetings and/or telephone conferences with one or more of Mr. Skeris' medical providers;

"identification, vetting and ultimate retention of multiple expert witnesses;

"preparation of correspondence to, and teleconferences and meetings with, expert witnesses to evaluate Plaintiffs' medical malpractice claim and value their damages;

"preparation of Request for Judicial Intervention (RJI);

"preparation and filing of suit papers;

"preparation of proposed scheduling order;

"preparation of multiple pleadings including multiple Bills of Particulars;

"preparation of multiple discovery documents including notices for discovery and inspection, and omnibus discovery demands;

"comprehensive review and analysis of Mr. Skeris' medical records obtained by PLG and defense counsel during litigation;

"multiple teleconferences and/or meetings with medical, vocational rehabilitation and economic experts;

"preparation of responses to Defendants' discovery requests;

"preparation of Plaintiffs' discovery demands and analysis of Defendants' responses;

"preparation of medical and other authorizations for records;

"preparation for, and defense of, Plaintiffs' depositions;

"preparation for the depositions of Defendants (including a two-day deposition of Defendant Kazam);

"review/summarization of deposition transcripts and review of errata sheets;

"analysis undertaken in preparation of expert witness disclosure, including months of review of file documents, re-review of medical records, re-review of extensive deposition transcripts, and meetings with expert witnesses, etc.;

"preparation for an ultimate trial;

"multiple mediation proceedings with different mediators;

"many telephone conversations and email communication with defense counsel and carriers regarding settlement;

"many telephone conversations and email communications with Plaintiffs regarding settlement negotiations;

"preparation of, or receipt and review of, hundreds of pieces of correspondence;

"preparation of, or receipt and review of, more than 2,000 email communications;

"review of settlement documents;

"communications and negotiations with medical expense lien holders (not part of the Retainer Agreement); and

"other activities which are protected by the attorney-client privilege and/or attorney work product doctrine."

Again, without explicitly describing how many hours each task purportedly took, Porter averred that this action "demanded a similar level of sustained attention and effort over a multi-year period," estimating that his firm expended more than 2,500 hours. According to Porter,

"[a]s a relatively small firm, PLG's allocation of these resources was both substantial and consequential, requiring the diversion of personnel and attention from other matters and prospective engagements. Four of our eight attorneys, along with two paralegals and three litigation assistants, were actively involved in the prosecution of this matter. The decision to devote such a substantial portion of the firm's personnel and operational capacity reflects both the complexity of the case and the degree of commitment required to achieve the ultimate result. The total number of hours expended far exceeds that of a typical medical malpractice action and is difficult to fully quantify.

Other than commencing the action, submitting four case management orders, consulting with experts, defending and conducting depositions, the last two of which apparently were conducted on July 30, 2025 and August 27, 2025---only weeks before the settlement was reached---participating in multiple mediation sessions, negotiating a reduction of ERISA liens, and moving for an award of an enhanced fee, the type of work described by Porter appears to be a précis describing the bare minimum of work that a law firm representing a plaintiff in a medical malpractice action must perform in order to obtain a successful result (see Ponzo v Landskowsky, 2019 NY Slip Op 33006[U], *3, 2019 NY Misc LEXIS 5447, *4). Almost all of the tasks performed by Porter Law Group are performed by attorneys in every medical malpractice action. Moreover, this action generated no motions whatsoever, let alone a summary judgment motion, which are made in approximately 40% to 50% of all medical malpractice actions, and generally require a plaintiff's attorney to undertake a significant amount of work. Moreover, the note of issue had not yet been filed when the action was settled, and the parties were not even close to having to prepare for trial, which also would have entailed a substantial amount of work in preparing the client and retained experts to testify. Of course, the action did not actually proceed to trial, where days of work on a medical malpractice action are customarily expended by attorneys.

As noted above, Porter has not explained why the 2,500 hours of time that his firm allegedly expended, or the number of hours that his firm expended on any particular task, was necessary, let alone "extraordinary," or why or how those amounts of time exceeded what would normally be expected in a medical malpractice action. Indeed, the court is skeptical that Porter Law Group actually expended 2,500 hours in litigating this action, particularly in light of the lack of motions or need for trial preparation, the absence of any contemporaneous records indicating the number of hours spent on various tasks, and the absence from the motion papers of any quantification of the hours spent on the tasks that Porter actually identified. In addition, other than vague and conclusory statements that the action involved the defendants' failure properly to interpret a June 2016 ultrasound and to respond to the persistent symptoms experienced by the plaintiff Carl Skeris, thus delaying a diagnosis of a synovial sarcoma, Porter made no showing that the issues in this action were novel or difficult, or whether such novelty or difficulty might have met the definition of "extraordinary circumstances." Rather, the medical issues presented involved a garden-variety failure timely and properly to diagnose and treat the plaintiff for synovial sarcoma. In this respect, this action is no different than any other malpractice action involving a failure to diagnose, or a misdiagnosis of the etiology of a patient's condition.

Of course, the severity of the Skeris's injuries was one of the most important factors driving the amount of the settlement that Porter Law Group obtained for the plaintiffs, since those injuries not only included the unwarranted spread of cancer, but any additional treatments that Skeris required to retard the growth of that cancer. The severity and permanence of those injuries, however, is insufficient to support an award of an enhanced fee.

Consequently, the court denies that branch of Porter Law Group's motion which is for an award of an enhanced fee.

With respect to that branch of Porter Law Group's motion which was to seal docket entries referable to the settlement amount and the award of fees, 22 NYCRR 216.1(a) provides, in relevant part, that

"[e]xcept where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records . . . except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties."

"[T]here is a broad presumption that the public is entitled to access to judicial proceedings and court records" (Mosallem v Berenson, 76 AD3d 345, 348 [1st Dept 2010]). Although the public's right to access is not absolute (see Danco Labs. v Chemical Works of Gedeon Richter, Ltd., 274 AD2d 1, 6 [1st Dept. 2000]), "[t]he presumption of the benefit of public access to court proceedings takes precedence, and sealing of court papers is permitted only to serve compelling objectives, such as when the need for secrecy outweighs the public's right to access" (Applehead Pictures, LLC v Perelman, 80 AD3d 181, 191 [1st Dept 2010]; see Matter of East 51st St. Crane Collapse Litig., 106 AD3d 473, 474 [1st Dept 2013]; Danco Labs. v Chemical Works of Gedeon Richter, Ltd., 274 AD2d at 6; see also Schulte Roth & Zabel, LLP v Kassover, 80 AD3d 500, 501-502 [1st Dept 2011]). As the Appellate Division, First Department, has explained, it has "been reluctant to allow the sealing of court records" (Gryphon Dom. VI, LLC v APP Intl. Fin. Co., B.U., 28 AD3d 322, 324 [1st Dept 2006]; see Matter of Holmes v Winter, 110 AD3d 134, 138 [1st Dept 2013], revd other grounds 22 NY3d 300 [2013]; Mosallem v Berenson, 76 AD3d at 350; see generally Davis v Nyack Hosp., 130 AD3d 455, 456 [1st Dept 2015]; Matter of Brownstone, 191 AD2d 167, 168 [1st Dept 1993]).

"Thus, the court is required to make its own inquiry to determine whether sealing is warranted, and the court will not approve wholesale sealing of [court] papers, even when both sides to the litigation request sealing" (Applehead Pictures, LLC v Perelman, 80 AD3d at 192 [citations omitted] [emphasis added]; see Gryphon Dom. VI, LLC v APP Intl. Fin. Co., B.U., 28 AD3d at 324; Liapakis v Sullivan, 290 AD2d 393, 394 [1st Dept 2002]; Matter of Hofmann, 284 AD2d 92, 93 [1st Dept 2001] [denying request to seal court records despite the parties' confidentiality agreement]).

The party seeking to seal court records has the burden of establishing "good cause" for the sealing order (Mancheski v Gabelli Group Capital Partners, 39 AD3d 499, 502 [2d Dept 2007]). "Since confidentiality is the exception," the movant must establish that "public access to the documents at issue will likely result in harm to a compelling interest of the movant and that no alternative to sealing can adequately protect the threatened interest" (id. [citations omitted]). This court has discretion, on a case-by-case basis, to determine if good cause exists (see id.). Hence, where a party fails to show the existence of a compelling reason to seal a record, sealing should be denied (see Davis v Nyack Hosp., 130 AD3d at 456).

Neither a party's embarrassment nor a general desire for privacy is sufficient, of itself, to establish good cause for sealing a court file (see Matter of Holmes v Winter, 110 AD3d at 138; Mosallem v Berenson, 76 AD3d at 351; Liapakis v Sullivan, 290 AD2d at 394; Matter of Benkert, 288 AD2d 247, 247 [1st Dept 2001]; Matter of Hofmann, 284 AD2d at 93; State of New York ex rel. Aniruddha Banerjee v Moody's Corp., 54 Misc 3d 705, 708 [Sup Ct, NY County 2016]). Rather, the remedy for preventing the potential for significant embarrassment is to permit a party to proceed anonymously (see Doe v Yeshiva Univ., 195 AD3d 565, 566 [1st Dept 2021]).

Conclusory claims of the need for confidentiality, and even the existence of a confidentiality agreement between the parties, are insufficient bases upon which to seal court records (see Matter of Benkert, 288 AD2d 147, 147 [1st Dept 2001]; Matter of Hofmann, 284 AD2d at 93; Matter of Tram Thuy Nguyen, NYLJ, Feb. 23, 2016, at 22, col 6, 2016 NYLJ LEXIS 2391 [Sur Ct, NY County, Feb. 18, 2016]; Matter of Golden, NYLJ, Jul. 16, 2015, at 24, col 1 [Sur Ct, NY County]; Matter of Brown, NYLJ, Apr. 10, 2013, at 23, col 6 [Sur Ct, Kings County]; Matter of Soltesz, NYLJ, Jun. 29, 2015, at 25 [Sur Ct, Bronx County]). Similarly, conclusory claims of the need for confidentiality that are based on the alleged adverse consequences arising from public access to certain documents are insufficient bases upon which to seal court records (see Heng Ren Silk Rd. Invs. LLC v Duff & Phelps, LLC, 203 AD3d 659, 660 [1st Dept 2022] [conclusory statements that defendant might be subject to draconian penalties if it were found to be in violation of the Chinese Data Security Law by filing a confidential valuation report with a United States court are insufficient to establish good cause for sealing]; Norddeutsche Landesbank Girozentrale v Tilton, 165 AD3d 447, 448-449, 86 N.Y.S.3d 12 [1st Dept 2018] [although the disclosures that the defendants sought to seal involved sensitive financial information that related to information contained in tax returns, their request for a sealing order was properly denied, since those documents were not actual tax returns, and did not involve trade secrets or information that could result in a competitive disadvantage to defendants]; Matter of Benkert, 288 AD2d at 147; Matter of Hofmann, 284 AD2d at 93; Matter of Tram Thuy Nguyen, NYLJ, Feb. 23, 2016, at 22, col 6, 2016 NYLJ LEXIS 2391 [Sur Ct, NY County, Feb. 18, 2016]; Matter of Golden, NYLJ, Jul. 16, 2015, at 24, col 1 [Sur Ct, NY County]; Matter of Brown, NYLJ, Apr. 10, 2013, at 23, col 6 [Sur Ct, Kings County]; Matter of Soltesz, NYLJ, Jun. 29, 2015, at 25 [Sur Ct, Bronx County]).

The rule disfavoring the sealing of records in a civil action frequently has been applied to deny requests for the sealing of medical records, despite a party's contention that the records contained sensitive or embarrassing medical information (see Matter of Jose V., 214 AD3d 523, 523-524 [1st Dept 2023] [citing Matter of Gliklad v Deripaska, 185 AD3d 512, 514 (1st Dept 2020), and holding that "(a)ny concerns about the confidentiality of certain records could be adequately remedied through redaction"]; Del Grosso v Jimmy Jazz Staten Is., LLC, 190 AD3d 409, 410 [1st Dept 2021] ["Plaintiff put his mental condition in issue by alleging that he sustained cognitive and psychological injuries [and] impairments such that the interests of justice significantly outweighed the need to maintain confidentiality of those records"]; Kelly D. v Niagara Frontier Tr. Auth., 177 AD3d 1261, 1264 [4th Dept 2019]; Ava v NYP Holdings, Inc., 64 AD3d 407, 416 [1st Dept 2009]; Borek v Seidman, 2023 NY Slip Op 30617[U], *3-4, 2023 NY Misc LEXIS 854, *5 [Sup Ct, NY County, Mar. 3, 2023] [Kelley, J.]; Guberman v West, 2019 NY Slip Op 33508[U], *4-5, 2019 NY Misc LEXIS 6352, *5-6 [Sup Ct, NY County, Nov. 21, 2019]). The New York State court system processes thousands of medical and dental malpractice actions every year, and, if the court were to apply the plaintiff's analysis to the issue of sealing, every malpractice action---and, in fact, most other personal injury actions---would have to be sealed, since the case files in those actions invariably include medical records and reports referable to a plaintiff. Moreover, sealing is also disfavored where a party wishes to preclude the public from learning of the amount of a settlement. In Matter of E. 51st St. Crane Collapse Litig., cited above, the First Department affirmed an order of the Supreme Court, New York County, that had granted a motion to unseal previously sealed documents setting forth the terms of a particular settlement agreement. The Supreme Court had temporarily sealed that settlement agreement until all of the many actions arising from the same crane collapse incident had been resolved, but had thereafter directed its unsealing even though one action remained pending (see Matter of E. 51st St. Crane Collapse Litigation, 31 Misc 3d 406 [Sup Ct, NY County 2011]). The First Department explained that there was no proof that the

"continued sealing of the court records in this case prevents the risk of parties' attempted use of prior settlement information as an artificial threshold in evaluating the value of their own cases. On the contrary, plaintiffs made a better argument that the unsealing of the settlement documents was necessary to enable them to ascertain the amount of available insurance coverage and thus make informed decisions as to the relative benefits and drawbacks of settling their own claims"

(106 AD3d at 474; see Matter of Hofmann, 284 AD2d at 94 ["while there is a strong public interest in encouraging settlement of private disputes, conclusory claims of the need for confidentiality of settlement agreements are insufficient to seal a record"]; Lacewell v Rocky Mtn. Intl. Ins. Ltd., 79 Misc 3d 1236[A], 2023 NY Slip Op 50820[U], *3, 2023 NY Misc LEXIS 3948, *5-6 [Sup Ct, NY County, Aug. 4, 2023] ["Defendants have failed to demonstrate good cause as to why the settlement amount is so confidential or sensitive that public access to it should be restricted"]; Matter of Soltesz, NYLJ, Jun. 29, 2015, at 25 [Sur Ct, Bronx County] ["to allow sealing of a record solely based upon the 'desire' of the parties to keep secret the settlement amount would open the door to an application's being made in every tort action"]). The court concludes that the plaintiffs have failed to make a showing of a substantial privacy right that outweighs the customary and constitutionally embedded presumption of openness in judicial proceedings (see "J. Doe No. 1" v CBS Broadcasting, Inc., 24 AD3d 215, 215 [1st Dept 2005]; Lacewell v Rocky Mtn. Intl. Ins. Ltd., 79 Misc 3d 1236[A], 2023 NY Slip Op 50820[U], *3, 2023 NY Misc LEXIS 3948, *6). Since the court concludes that the reasons for the sealing of records advanced here are merely conclusory, it declines to "so-order" a proposed sealing directive, and denies that branch of Porter Law Group's motion which was for sealing.

Accordingly, it is,

ORDERED that the motion is denied, and, from the proceeds of the settlement, Porter Law Group, shall be entitled to retain the sum of $799,561.83, shall pay, to the plaintiffs, the sum of $4,600,890.08, and, if it is holding the proceeds of the settlement in escrow, shall pay Empire HealthChoice Assurance, Inc., or Carelon, on behalf of Empire HealthChoice Assurance, Inc., the sum of $599,548.09 in satisfaction of its ERISA lien or, if the defendants are still in possession of the settlement proceeds, Porter Law Group shall direct their attorneys to make that payment in satisfaction of that lien; and it is further,

ORDERED that, on or before June 18, 2026, Porter Law Group, shall serve a copy of this order with notice of entry upon the plaintiffs at their last known address by overnight delivery, and shall file proof of said service thereof on or before June 25, 2026.

This constitutes the Decision and Order of the court.

DATE 6/4/2026

JOHN J. KELLEY, J.S.C.

John J. Kelley, J.