GCVAWCG DOE v. CHURCH OF IMMACULATE HEART OF MARY THE PARISH OF THE IMMACULATE HEART OF MARY IMMACULATE HEART OF MARY SCHOOL EDWIN GAYNOR

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Supreme Court, Westchester County, New York.

GCVAWCG-DOE, Plaintiff, v. The Roman Catholic Archdiocese of New York; CHURCH OF IMMACULATE HEART OF MARY, a/k/a THE PARISH OF THE IMMACULATE HEART OF MARY a/k/a IMMACULATE HEART OF MARY SCHOOL; and EDWIN GAYNOR, Defendants.

56145/2020

Decided: August 27, 2020

Edward Gaynor, Defendant pro se

New York State Courts Electronic Filing ("NYSCEF") Documents 2-16, were read in connection with plaintiff's application by order to show cause, for leave to proceed in this civil action under a pseudonym. This action was brought pursuant to New York's Child Victims Act ("CVA"), CPLR 214-g, to recover damages against defendants for alleged sexual contact, as defined by Article § 130.00 of the New York Penal Code, with plaintiff when he was a minor.

Plaintiff has consented to confidentially providing the institutional defendants with his full name, address, and date of birth, so no prejudice would fall upon the institutional defendants in investigating this matter or in responding to the Verified Complaint.

Upon the foregoing papers, the motion is decided as follows:

A plaintiff does not have an automatic right to bring an action anonymously. A party seeking anonymity is required to provide evidence to corroborate the allegations in support of the request (Doe v Good Samaritan Hosp., 66 Misc 3d 444 [Nassau Cty Sup. Ct. 2019], citing Doe v New York & Presbyt. Hosp, 2018 NY Slip Op 31587[U] [Sup Ct, NY County 2018]). Normally, a summons and a complaint caption should list the names of all parties in the action pursuant to CPLR 2101[c]). It follows that since the primary purpose of a pleading is to apprise an adverse party of the pleader's claim and to prevent surprise, a defendant may be prejudiced by the inability to prepare a defense to the plaintiff's allegations without such notice (Cole v Mandell Food Stores, Inc. 93 NY2d 34, 40 [1999]). Additionally, the court must protect the due process rights of the accused, since it may be unfair and prejudicial to allow the plaintiff to accuse defendants who are publicly identified, while shielding the plaintiff from any public scrutiny.

The First Department cautions that "even 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]).

The determination of whether to allow a plaintiff to proceed anonymously requires the court to "use its discretion in balancing plaintiff's privacy interest against the presumption in favor of open trials and against any potential prejudice to defendant" (Anonymous v Lerner 124 AD3d 487, 487 [1st Dept 2015]). Only in the most unique and compelling of cases, should the court shield the identity of a party from all other parties. "To do otherwise jeopardizes the opposing party's right to due process" (Doe v MacFarland, 66 Misc 3d 604 [Sup Ct. Rockland County 2019]).

It has recently come to this court's attention, by way of outlier decisions and a case management order specific to the five New York City counties, if consented to by all defendants to an action, a plaintiff may initiate an action and file a complaint by initials or pseudonym, regardless of the sufficiency or merits of the application. Consequently, this court has been flooded with scores of pseudonym applications, many with no affidavit of the plaintiff, or bare-bones, boilerplate affidavits without facts specific to the plaintiff. These inadequate applications are compounded by a troubling expectation among the attorneys bringing them, that their applications should be granted. To mitigate the spillover effect from those decisions and policies, this court has had to amend its part rules to disabuse attorneys of such unwarranted expectations, and now respectfully refers to the abundantly clear guidance from the First Department: "we remind the bench and bar that, even where the parties seek to stipulate to such relief, the trial court should not pro forma approve an anonymous caption" (see Anonymous v Anonymous, 27 3d 356 [1st Dept 2006].

While this court respects that there may be unique circumstances in New York City that led to the implementation of this policy  1 , a policy conclusion by a court is not a substitute for a ruling on the merits. The court is vested with the obligation to consider each application on its merits. It must exercise its deliberative and discretionary function, and not grant anonymity indiscriminately to all CVA plaintiffs in a wholesale fashion, like it is a ministerial function  2 . Simply stated, only those plaintiffs who have brought forth individual facts warranting the protection of anonymity should be granted anonymity, and it is axiomatic that the court should recite those facts in its decision.

Indeed, this court regularly grants worthy applications of CVA plaintiffs to proceed anonymously, but no court should rubber stamp an application that fails to meet the movant's burden of proof. In Doe v McFarland, Justice Marx engaged in a comprehensive review of the ARK55 Doe v Archdiocese of New York (Sup Ct New York County, November 4, 2019, Index No.950049/2019) and Doe v Kara (Sup Ct Queens County, September 22, 2019, Index No.714910/2019) decisions. Justice Marx detailed the error of applying an across-the-board grant of anonymity to all plaintiffs, noting that the legislature "left it up to each alleged victim to determine whether to seek anonymity. The legislature also necessarily left it to the courts to assess each individual case. Litigants seeking to proceed under a pseudonym are not new to the courts. The case law that has developed in non Child Victims Act cases applies equally to Child Victims Act cases" (Doe v McFarland, 66 Misc 3d 604, 613 [Sup Ct. Rockland County 2019])). Additionally, Justice Marx raised concerns that the language employed in the Ark55 and Doe v Kara decisions ("plaintiff as the alleged victim of sexual abuse, has 'undoubtedly' suffered great emotional distress") "sounds perilously close to being an evaluation of the merits of plaintiff's claim in that case" (Doe v MacFarland, 66 Misc 3d 604).

Notwithstanding those judicial red flags raised at the end of 2019, just ten days ago, the identical language was repeated in another published decision by the same court (see Twersky v Yeshiva University, NYLJ [online] August 17, 2020 (Sup.Ct. New York County). Like its predecessors, Twersky makes no mention of an affidavit of a person with particular knowledge of the facts, much less any discussion of any facts. While the decision acknowledges that a plaintiff does not have a common law right to privacy, and that Civil Rights Law § 50-b does not apply to everyone claiming to have been a sexual assault victim, it then claims: "[t]he CVA was enacted with the protections codified under Civil Rights Law § 50-b 'in mind,' " and concludes that it is "axiomatic that plaintiffs  3 should be afforded the protection of anonymity." This court respectfully finds it to be better practice to be guided by the statutes (CPLR 2101; CPLR 214-g), rather than engaging in judicial mind-reading of 213 members of the Senate and Assembly. In any event, reliance on Civil Rights Law § 50-b is misplaced, because actions revived under CPLR 214-g pursuant to the CVA, such as this action, are civil in nature. CRL § 50-b was enacted to protect the disclosure of the identity of a victim of sex crimes to ensure the victim's cooperation in criminal investigations or prosecutions (Doe v Good Samaritan Hosp., 65 Misc 3d 987, 990 [Nassau Cty. Sup. Ct. 2019], citing Doe v Kidd, 19 Misc 3d 782, 786-87 [Sup. Ct., NY Cty 2008]).

Thus, this court follows the otherwise universal practice, established long before the CVA was enacted, initially by the First Department in 2006 (Anonymous), then again in 2010 (Applehead), and then by Justice Mendez in 2018 (NY and Presbyterian Hosp), then in CVA cases by Justice Ruderman in 2019 (Roman Catholic Archdiocese), then again by Justice Jaeger in 2019 (Good Samaritan), and finally by Justice Marx in 2019 (MacFarland), that to be granted anonymity, 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.

Turning to this plaintiff's application, plaintiff's attorney's affidavit prominently highlights Ark55 and another decision of that court, J.D. v Boy Scouts of America, Index No. 520203/2019 (Sup. Ct. Kings Cty). This court has reviewed the Decision and Order in the latter, entered in NYSCEF on November 21, 2019. There, the parties had stipulated to plaintiff's use of a pseudonym, but the court found "a decision facilitating the advancement of that application is nevertheless warranted. Accordingly, the decision and order that follows reflects the court's determination as to the instant application notwithstanding the parties' agreement." Unfortunately, any precedential value of J.D. v Boy Scouts ends there. A review of the NYSCEF file reveals that the most basic prerequisite--an affidavit of a person with knowledge of the facts—was not met. Plaintiff's application was supported only by the affidavit of his attorney—coincidentally, the same attorney that almost 4 months earlier, had her application for pre-action discovery denied by this court (Ruderman, J), because it "lacks support by a person with first-hand knowledge of the alleged incident, since the only factual assertions provided are those of petitioner's counsel who does no demonstrated first-hand knowledge of the alleged incident" Doe v Roman Catholic Archdiocese of NY, 64 Misc 3d 1220(A), (Sup. Ct. Westchester Cty, 2019). Therefore, in the instant application, plaintiff's counsel's reliance on a case where a decision was rendered without the most basic foundation of any judicial decision (a record with facts), is very much misplaced.

To further support his application, plaintiff did submit an affidavit, which was sworn to in the State of Florida, asserting that he has many relatives who still reside "in the area surrounding Westchester County". Such assertion is entirely too ambiguous to be helpful to the court in weighing the its value. Plaintiff also claims that since his father is still alive and does not know the details of the attacks he endured at the hand of defendant, it would upset him in his old age. The court certainly does not take this factor lightly, however, absent from plaintiff's affidavit, is any details of the father's residence, and a demonstration of actual likelihood that his father would be exposed to this information.

While it is significant that plaintiff's application is unopposed by defendants, without more, fails to provide the unique personal reasons,(including specific details of relatives and close friends in the area), that plaintiff should not disclose his identity to the public. Additionally, plaintiff's affidavit is also replete with boilerplate, broad based statements made in virtually every application, including, that disclosing his identity as a sexual abuse survivor may cause harm to his employment, family and social life in his community, and he may suffer further mental anguish, trauma, humiliation, re-victimization, and additional emotional harm. It is a given that the crimes alleged to have been committed against plaintiff are sensitive in nature. Parties that stipulate to allowing plaintiff to proceed under a pseudonym is fairly commonplace, but standing alone, it is not enough. The court is tasked with such decision, and as discussed above, that obligation cannot be delegated to the litigants or court staff in derogation of the court's duty Applehead Pictures, LLC v Perelman [1st Dept 2010]; Anonymous v Lerner [1st Dept 2015] ). In each and every case, the court must balance the public's right to access and the benefits of an open judicial system with the individual plaintiff's right of privacy. Doing otherwise compromises and undermines our system of justice, transforming judges into clerks.

Balancing plaintiff's privacy interest against the presumption in favor of full public disclosure and against permitting potential prejudice to defendants, and considering the 15 factors enumerated by Justice Marx in Doe v McFarland, the court finds here that allowing plaintiff to proceed under a pseudonym is not appropriate.4 While plaintiff's application contains allegations of acts against him when he was a minor, involving highly sensitive matters, including potential social stigmatization, claims of public humiliation and embarrassment alone are not sufficient grounds for allowing a plaintiff to proceed anonymously (Anonymous v Lerner, 124 AD3d at 487). Therefore, plaintiff has failed to allege a matter implicating a privacy interest substantial enough to outweigh the customary and constitutionally embedded presumption of openness in judicial proceedings ("J. Doe No. 1" v CBS Broad. Inc., 24 AD3d 215 [1st Dept 2005]).

NOW, therefore for the above stated reasons, it is hereby

ORDERED, that in the event plaintiff has not already done so, plaintiff is to divulge his or her legal name and other pertinent identifying information to defendants within 10 days of the entry into NYSCEF of this Decision and Order; and it is further

ORDERED, that plaintiff shall within 30 days, upload a corrected version of the Summons and Verified Complaint to NYSCEF, containing the plaintiff's full name in the caption and anywhere "GCVAWCG-DOE" appears in the body of the document.

All matters not herein decided are denied. This constitutes the Decision and Order of the court.

Dated: August 27, 2020

White Plains, New York

HONORABLE CHARLES D. WOOD

Justice of the Supreme Court

From:Elyse J. Angelico

Sent:Thursday, August 27, 2020 3:45 PM

To:Reporter; decisions@alm.com; Reporter

Cc:Hon. Charles Wood

Attachments:G pseudonym rejected bare bones aff.wpd; H pseudonym granted close call child in CT.wpd

Attached hereto are the following Child Victims Act opinions proposed for publication:

HCVAWCR-DOE v The Roman Catholic Archdiocese of New York, et. al. Index No. 55797/2020, Supreme Court, Westchester County, August 27, 2020, Justice Charles D. Wood.

Saved as H:ChildVictimsAct\H pseudonym granted close call child in CT.wpd.

GCVAWCG-DOE v The Roman Catholic Archdiocese of New York, et. al. Index No. 56145/2020, Supreme Court, Westchester County, August 27, 2020, Justice Charles D. Wood.

Saved as H: ChildVictimsAct\H pseudonym rejected bare bones aff.wpd.

This court declined to follow 3 decisions and a case management order from another CVA court, that, if consented to by all defendants to an action, a plaintiff may initiate an action and file a complaint by initials or pseudonym, regardless of the sufficiency or merits of these applications. Those decisions and policies have flooded Westchester with inadequate pseudonym applications from attorneys expecting applications to be rubber stamped, many with no affidavit of the plaintiff, or boilerplate affidavits without facts specific to the case. The court must carry out its judicial function, and may not delegate it. Applications to proceed anonymously require plausible and actual, not speculative harm, and the unique personal reasons that the plaintiff should not disclose his or her identity to the public. For each application, this court considers the 15 factors enumerated in Doe v McFarland,, 66 Misc 3d 604, 613 (Sup Ct. Rockland County 2019). This court also reiterated the First Department's caution: "even where the parties seek to stipulate to such relief, the trial court should not pro forma approve an anonymous caption" (see Anonymous v Anonymous, 27 3d 356 [1st Dept 2006].

Guided by these principles, in HCVAWCR-DOE v The Roman Catholic Archdiocese of New York , Index No. 55797/2020 (Sup. Ct. Westchester County), this court granted plaintiff's pseudonym application, which properly included an affidavit from the plaintiff. The factors that persuaded the court to grant the application was that one of plaintiff's children lives in a Connecticut city that is under ten miles from Westchester County, and that plaintiff's application was not opposed by defendants. This court otherwise found unpersuasive assertions in plaintiff's affidavit that were too ambiguous to be helpful to the court in weighing the factors, including boilerplate, broad-based statements made in virtually every application of this kind, together with counsel's reliance on cases with no precedential value because they were not based on a record.

In contrast, in GCVAWCG-DOE v The Roman Catholic Archdiocese of New York , Index No. 56145/2020 (Sup. Ct. Westchester County), the court denied plaintiff's application to proceed anonymously. While plaintiff included an affidavit, it failed to include individual facts to warrant proceeding anonymously. Plaintiff claimed that since his father is still alive and does not know the details of the attacks he endured at the hand of defendant, would upset him in his old age. Absent from plaintiff's affidavit, is his father's residency, and the likelihood that his father would discover this information, which minimized the probative value of this factor. Thus, the only factor in favor of granting the application was that it was unopposed, which, without more does not warrant granting the application. Therefore, balancing plaintiff's privacy interest against the presumption in favor of full public disclosure and against permitting potential prejudice to defendants, and considering the 15 factors enumerated in Doe v McFarland, the court found that allowing plaintiff to proceed under a pseudonym is not appropriate.

If you have any questions, please feel free to contact me.

Thank you for your consideration.

Best Regards-

Elyse J. Angelico, Esq.

Principal Law Secretary to

Hon. Charles D. Wood, J.S.C.

Westchester County Courthouse

111 Dr. Martin Luther King Jr. Blvd.

White Plains, New York 10601

eangel@nycourts.gov

FOOTNOTES

1.   The Case Management Order is dated three weeks before any courts in New York State curtailed operations due to the current Covid-19 pandemic.

2.   A court may not ethically pre-judge and delegate its judicial functions to a non-judge (ACJE Opinions 15-127; 18-04(B); 19-47).

3.   Based on the court's policy and other decisions, it is unclear whether this statement refers to the 33 Twersky plaintiffs, or just plaintiffs in general.

4.   15 factors to consider on the issue of permitting anonymity to a plaintiff in a Child Victims Act case: 1. Is the application supported by an affidavit by a party with knowledge? 2. Does the case involve matters which are ordinarily and customarily kept private because of their sensitive or personal nature? 3. Does identification of the party seeking to proceed under a pseudonym present the risk of harm to him/her or other innocent individuals? 4. Will the individual seeking anonymity/pseudonymity suffer the harm sought to be protected against by requiring his/her identity to be revealed to the public? 5. Is the individual seeking anonymity/pseudonymity particularly vulnerable to possible harms of disclosure? 6. Is the party seeking anonymity challenging any governmental activity? 7. Will the defendant(s) be prejudiced by allowing plaintiff to proceed anonymously or pseudonymously? 8. Has the identity of the party seeking anonymity/pseudonymity already been publicly disclosed? 9. Is the dispute one in which a strong public interest is implicated or is the dispute strictly legal in nature? 10. Are there other mechanisms by which the party seeking anonymity/pseudonymity can be protected? 11. Will any of the parties be put to excessive cost in redacting a party's name from litigation documents? 12. Will anonymity/pseudonymity affect the willingness of a party to proceed with his/her claims? 13. Will allowing a party to proceed anonymously/pseudonymously create an imbalance in negotiating positions? 14. Will allowing a party to proceed anonymously/pseudonymously encourage a party to admit to criminal activity? 15. Are there any other relevant factors that the Court should consider in a specific case? These factors are obviously not meant to be weighed equally, as #2 is axiomatic in every CVA case, #12 is a purely subjective answer provided by the plaintiff/affiant, #1 & #8 (if publicity was sought by plaintiff), can be disqualifying by themselves and end the inquiry, and (#15) requires evaluation of the unknown.

Charles D. Wood, J.

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