NY - LITIGATING ANONYMOUSLY CAN BE ACHIEVED IN LIMITED CASES

Doe v. ARCHDIOCESE OF NY, 2025 NY Slip Op 50338 - NY Co. Supreme Court 2025:

"Plaintiff moves, by Order to Show Cause, for permission from this court to proceed anonymously during this action.

Plaintiff argues that allowing plaintiff to proceed under a pseudonym would protect plaintiff from the stigma associated with sexual assault that may result upon disclosure of their identity in the instant matter. Plaintiff, like many other similarly situated plaintiffs, is concerned that disclosure of their identity will further stigmatize plaintiff, (NY St Cts Elec Filing [NYSCEF] Doc No. 3 ¶ 9).

The Victims of Gender-Motivated Violence Protection Law ("GMVA"), revives previously time-barred claims for "crime[s] of violence motivated by gender." (New York Administrative Code, Chapter 11 §§ 10-1101 — 10-1107).

The court finds that, based upon the affidavits of service, defendants were duly served with the instant Order to Show Cause, and none of them submitted opposition. (NYSCEF Doc No. 6, 7). While the relief herein is unopposed, the court has determined that a decision reflecting its deliberation on the application herein is warranted.

In general, "[t]he 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 prejudice to defendant" (Anonymous v. Lerner, 124 AD3d 487, 487 [1st Dept 2015] [internal quotation marks and citations omitted]; see Doe v. Yeshiva Univ., 195 AD3d 565, 565 [1st Dept 2021]; see also Doe v. MacFarland, 66 Misc 3d 604 [Sup Ct 2019]; Doe v. Szul Jewelry, Inc., 2008 NY Slip Op 31382 [U] [Sup Ct, NY County 2008]; J. Doe No. 1 v. CBS Broadcasting, Inc., 24 AD3d 215 [1st Dept 2005]). Among the recognized values of open access to civil proceedings is that "the bright light cast upon the judicial process by public observation diminishes the possibilities for injustice, incompetence, perjury, and fraud" (Danco Labs. v. Chemical Works of Gedeon Richter, 274 AD2d 1, 7, [1st Dept 2000]). Likewise, the very openness of the process should provide the public "with a more complete understanding of the judicial system and a better perception of its fairness" and serves to "ensure that [the proceedings] are conducted efficiently, honestly and fairly" (Danco, 274 AD2d at 7, supra).

However, the right of the public, and the press, to access judicial proceedings is not absolute or unfettered, and involves judicial discretion (Doe v. Yeshiva Univ., 195 AD3d 565 at 565; Anonymous v. Lerner, 124 AD3d 487, 487) Moreover, access may still be respected in keeping with constitutional requirements while sensitive information is restricted in keeping with "the State's legitimate concern for the well-being" of an individual (Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 606 [1982]).

In addition, while "[i]t is elementary that the primary function of a pleading is to apprise an adverse party of the pleader's claim", the same does not necessarily apply to a pleader's name (Cole v. Mandell Food Stores, Inc., 93 NY2d 34, 40 [1999]).

Here, there can be little doubt that plaintiff's case will involve information of a personal and highly sensitive nature. Plaintiff alleges that they are the victim of sexual assault and that as a result they have suffered significant physical, emotional, and psychological injuries (NYSCEF Doc No. 1, ¶¶ 27-28) Defendants have neither opposed plaintiff's motion, nor do they make their own motion for anonymity. Because defendants are institutions, this Court cannot infer the same sort of personal risks apply to defendants. As such, based upon the unopposed motion and the documents received and reviewed, the court does not find that Defendants would be prejudiced at this time by the court granting plaintiff's Order to Show Cause to proceed anonymously.

An express purpose of the GMVA is to revive previously time-barred claims. (New York Administrative Code, Chapter 11 § 10-1105) Revealing plaintiff's identity may have a chilling effect on plaintiff in litigating the instant matter, and on other plaintiffs from pursuing similar litigation. (see e.g. John Doe No. 4 v. Rockefeller Univ., 2019 NY Slip Op. 33725[U], *2, 2019 WL 6354255 [Sup. Ct., NY County Nov. 22, 2019]). Such would directly contradict the express legislative purpose of the GMVA. (New York Administrative Code, Chapter 11 § 10-1102)

Granting anonymity to Plaintiff is a far less drastic limitation on the public's right to open proceedings than the sealing of records. (Doe v. New York Univ., 6 Misc 3d 866, 878 [Sup Ct 2004]). Plaintiff has not moved for sealing of the records. The public interest in seeing this case determined on the merits outweighs the public interest in knowing plaintiff's identity. (Doe v. Good Samaritan Hosp., 66 Misc 3d 444, 449 [Sup Ct 2019]).

Anonymity at this stage in the proceeding ensures that plaintiff will proceed with the action and effectuate that goal."

NY - NAME AND SEX CHANGE APPLICATION SEALED EVEN THOUGH NOT REQUESTED

Perhaps the court took this step, as the petitioner was pro se.

MATTER OF JW, 2025 NY Slip Op 25048 - NY: King Co.
City Court, Civil Court 2025:

"This Honorable Court Decides and Orders Sua Sponte, upon Application of Petitioner JW identified as non-binary seeking Declaratory Judgment for Name Change and Sex Designation to X, pursuant to the Civil Rights Law §64-a and §67-b to Seal Court Records is hereby under separate Sealed Order Granted.

Herein, Petitioner seeks a change of name and sex designation change to X to coincide with their non-binary identification, in one of the very limited matters in which this court sits as a court of equity pursuant to the 2021 Gender Recognition Act of the Civil Rights Law Article 6. In sitting as a court of equity in such ex-parte petition for declaratory judgment "`the court may grant any type of relief within its jurisdiction appropriate to the proof whether or not demanded, imposing such terms as may be just'"(Piccirilli v. Benjamin, 226 AD3d 1233, 1238 [3d Dept 2024]), citing State v. Barone, 74 NY2d 332 [1989]), quoting CPLR 3017 [a]). There are broader considerations of the underpinning legislative intent and history beyond the text of the black letter law in decision-making of such declaratory judgments in equity. Herein, the issue before this court is whether within its powers in equity may sua sponte seal court records of a change of name and sex designation pursuant to NY CLS Civ R §64-a and §67-b where Petitioner does not seek the prayer of relief to seal. This is distinguished from the recently decided matter in which the issue presented was as to the unintended legislative internal inconsistency of the "totality of the circumstances test" pursuant to NY CLS Civ R §64-a as applied to a Transgender person who requests sealing (Matter of KA, 2025 NY Slip Op 50128[U] [Civ Ct, Kings County 2025]). This Court is sensitive to not intend to patronize, to not relegate to victimhood nor to detract from the outward Pride of who they are as Transgender people. However, as a Court of Equity, this Court has "the power to dispose of all matters at issue and to grant complete relief in accordance with the equities of the case" (id. at 1237).

To grant full relief here, even where not demanded, requires comprehensive consideration of grave matters of societal public safety protections to Petitioner, not merely confined to this court's geographical jurisdiction. Rather, this Petition is indelible in perpetuity for all to see not merely in Brooklyn, New York City but extending nationally as well as globally. Petitioner's safety in Brooklyn does not necessarily extend to wherever the Transgender person's life may take them in the future. This is indeed a significant life altering change for a member of a community that faces unfortunate consequential public ridicule, discrimination and hate crimes.^[1] Similarly to de jure decree that a Black slave is 3/5 of a human being does not make it factually so, likewise, the de jure decree or edict of the non-existence of Transgender people does not make it factually so. However, such a de jure decree indeed further bolsters the need for public safety protections of that denied demographic. Regardless of the discriminatory de jure edict proclaiming the non-existence of Transgender people, a hate crime against a Transgender person, like any other crime, is against The People. NY CLS Civ R §67 statutorily establishes the sex designation X, which is not universally accepted and actually scorned and reviled in some sectors of society here and abroad. It may be argued that sealing is contrary to a proud Transgender, non-binary, or gender nonconforming person's intent. Historically, the Interracial demographic has statutorily been defined to apply exclusively to Black and White mixed blood pursuant to overruled miscegenation laws, which now have freedom of choice of racial classification without criminal recrimination (see Loving v. Virginia, 388 US 1, 2 [1967]). Prior to the landmark case, the de jure one- drop-rule^[2] statutorily mandated the Interracial to be classified as the Black demographic even though defied by immutable characteristics. Once overturned, a non-Black appearing Interracial with no Black characteristics may choose to openly and proudly publicly choose to self-identify as such. Similarly, the Transgender, non-binary or gender nonconforming person may also choose to live openly and proudly and publicly choose to self-identify as such. Therefore, perhaps in choosing the X gender marker in and of itself is intended to be open and proud. Accordingly, this intent to not choose to seal is an extension and reaffirmation of their proud identification. However, this court in equity is tasked with the holistic implications of its decision upon Petitioner, even where, as here, sealing of the court records is not being demanded.

For the foregoing reasons, This Court Sitting In Equity, notwithstanding that the relief of Sealing was not prayed for relief, in the best interest, and what is just, and right, and good for Petitioner JW's Change of Name and Change of Sex Designation, pursuant to Civil Rights Law §64-a, §67-b, the court records attendant thereto are hereby Ordered Sealed, Sua Sponte.

This constitutes the opinion, order and decision of This Honorable Court.

[1] Office of the New York State Comptroller, https://www.osc.ny.gov/reports/concerning-growth-hate-crime-new-york-state-8/19/2024.

[2] PBS, https://www.pbs.org/wgbh/pages/frontline/shows/jefferson/mixed/onedrop.html."

SEALING MENTAL HEALTH RECORDS OF INVOLUNTARY COMMITMENT

Generally, pursuant to an application made under Mental Hygiene Law 33.14, a court may order that the petitioner's involuntary mental illness records be sealed, subject to such limitations or exceptions as the court may impose, upon a finding that:

"a. the petitioner was illegally detained by a facility by reason of fraud, error or falsified documents, and the records pertain to such illegal detention; or

b. the petitioner has demonstrated by competent medical evidence that he is not currently suffering from a mental illness, has not for a period of three years received inpatient services for the treatment of a mental illness, and the interests of the petitioner and society would best be served by sealing the petitioner's records.  It shall be presumed that it would be in the best interests of the petitioner and society to seal any record of a petitioner's receipt of services for the treatment of mental illness prior to his sixteenth birthday."

 But this may not always be a simple application. The most recent case I could find on this was MATTER OF GARDNER v. BASSETT MEDICAL CTR., 148 AD 3d 1331 - NY: Appellate Div., 3rd Dept. 2017:

"At all times relevant, petitioner was a student at the State University of New York at Cobleskill in Schoharie County. In early 2013, petitioner sent a text of an apparently concerning nature to one of his professors; although the precise nature of the text is not disclosed in the record,^[1] this incident — according to petitioner — resulted in the involvement of law enforcement and appears to have marked the beginning of a deteriorating relationship between petitioner and the university. At the beginning of the summer of 2013, petitioner moved into a hotel because he "didn't feel safe on the campus" and, in August 2013, suffered an alcohol-induced blackout — during the course of which he sent a text expressing suicidal thoughts.

As a result of his personal experiences on campus, petitioner began to lobby university officials "to insure that when the school police question a student with possible mental health issues that a mental health advocate is present to act as an advocate for the student." To that end, petitioner met with the university's president on November 21, 2013 to discuss this and other issues; also in attendance at that meeting was one of the university's therapists, with whom petitioner previously had spoken "about various personal issues in [his] life." Although the meeting apparently ended without incident, petitioner and the therapist continued to speak in the hallway afterwards, during the course of which — the therapist subsequently reported — petitioner became "agitated, hostile and angry" and "blam[ed] the school for his current problems, depression, poor grades and [the] suicidal episode in August of [that] year." As the conversation continued, petitioner made 1332*1332 reference to "violent acts" — invoking the 1999 shooting incident at Columbine High School in Colorado — and the connection between such violent episodes and "those who snap," stating, "[P]eople wonder why these people snap[;] it's because of the situations like I am going through that cause them to snap and do what they did." Petitioner also made reference to New York's Secure Ammunition and Firearms Enforcement Act, more commonly known as the SAFE Act (L 2013, ch 1), which he previously had characterized as a "new law [that] was aimed to take his weapons away," theorizing that the law "cause[d] people to disengage in therapy, leading to an increase in murder/suicides." Shortly after making that statement, petitioner terminated his counseling relationship with the therapist.

Concerned that petitioner "may have underlying plans for violence," the therapist arranged for an emergency psychiatric admission pursuant to Mental Hygiene Law § 9.39. As a result, petitioner was involuntarily committed to respondent Bassett Medical Center from late in the evening on November 21, 2013 to early in the morning on November 24, 2013.^[2] The stated basis for the emergency admission was paranoid delusions and threats to harm others. During the course of his stay, petitioner was evaluated by a number of medical professionals, including two psychiatrists, and petitioner variously reported and then denied a prior diagnosis of bipolar disorder. According to the psychiatrist who evaluated petitioner upon his admission, although petitioner did not exhibit evidence of any delusions or obsessions and denied "frank suicidal ideation," petitioner expressed "clearly helpless[,] hopeless and depressed thinking." In addition, petitioner's demeanor was described as "tense" ("with paranoid flavor somewhat cryptic at times"), his thought processes were characterized as "overinclusive" and possessing a "more obsessional style," his insight was assessed as "[p]oor with marked use of denial," his judgment was deemed to be "diminished" and his capacity was described as "limited, impacted on by his perceptions with a paranoid flavor." Against the backdrop of petitioner's stated (and then denied) bipolar disorder, concerns that he may also be suffering from an "affective disorder" or "isolated paranoid disorder," the statements made to the university's therapist and petitioner's prior history, the admitting psychiatrist determined that petitioner was in need of involuntary hospitalization "for acute stabilization of [his] psychiatric symptoms" and to safeguard petitioner's safety and the safety of others. Although another psychiatrist 1333*1333 subsequently concluded that she could not extend petitioner's emergency admission beyond the initial 48-hour period (see Mental Hygiene Law § 9.39 [a] [2]), petitioner elected, as noted previously, to voluntarily admit himself for an additional two days.

Thereafter, in March 2015, petitioner commenced this proceeding pursuant to Mental Hygiene Law § 33.14 (a) (1) against the hospital and respondent New York State Office of Mental Health seeking to seal his psychiatric records. Respondents opposed the application. Following a hearing, Supreme Court, relying upon petitioner's hospital records and the affidavits tendered in support of and in opposition to petitioner's application, denied petitioner's sealing request, finding, among other things, that petitioner failed to demonstrate that he was illegally detained. This appeal by petitioner ensued.

We affirm. Pursuant to the provisions of Mental Hygiene Law § 33.14 (a) (1), "[a]ny person who has been admitted to receive inpatient or outpatient services for mental illness may commence a special proceeding ... for an order directing the sealing of those records ... upon a finding that ... the petitioner was illegally detained by a facility by reason of fraud, error or falsified documents, and the records pertain to such illegal detention." Here, petitioner was admitted under the emergency admission procedures set forth in Mental Hygiene Law § 9.39 (a), which permits a hospital director to "retain... as a patient for a period of [15] days any person alleged to have a mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself [or herself] or others." For purposes of the statute, the required likelihood of harm means either a "substantial risk of physical harm to himself [or herself] as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he [or she] is dangerous to himself [or herself], or ... a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm" (Mental Hygiene Law § 9.39 [a] [1], [2]; see Matter of Rueda v Charmaine D., 17 NY3d 522, 529-530 [2011]). An individual may be admitted under the statute "only if a staff physician of the hospital upon examination of such person finds that such person qualifies under the requirements" of the statute and, as alluded to previously, a person so admitted cannot "be retained for a period of more than [48] hours unless within such period such finding is confirmed after examination by another physician who shall be 1334*1334 a member of the psychiatric staff of the hospital" (Mental Hygiene Law § 9.39 [a] [2]; see Matter of Rueda v Charmaine D., 17 NY3d at 530).

As petitioner does not contend that his involuntary admission was procured by fraud or falsified documents, his application for sealing may succeed only if he can demonstrate that such admission was erroneous. To that end, petitioner tendered his hospital records and the affidavit of John Tanquary, a licensed psychiatrist, who opined that, based upon his October 2014 evaluation of petitioner and a review of petitioner's hospital records, petitioner "did not meet the criteria for involuntary hospitalization ... and should never have been hospitalized against his will." To our analysis, this conclusory and hindsight assessment of petitioner's mental status at the time of his involuntary admission in November 2013 — an assessment that is both predicated in large measure upon petitioner's self-reporting of that event and otherwise minimizes the documented psychiatric symptoms displayed by petitioner upon his admission — falls short of demonstrating that petitioner's hospitalization was in error within the meaning of Mental Hygiene Law § 33.14 (a) (1). At best, Tanquary's affidavit reflects a difference of opinion between the psychiatrist who evaluated petitioner upon his admission and the psychiatrist who evaluated him nearly one year later, and this conflicting medical opinion does not demonstrate that petitioner's involuntary admission was erroneous.

In reaching this result, we acknowledge that petitioner and his expert focus on the propriety of petitioner's initial, involuntary admission — claiming that respondents failed to satisfy the criteria set forth in Mental Hygiene Law § 9.39 (a). It is important to note, however, that it is petitioner, and not respondents, who bears the burden of proof here. Notably, petitioner did not commence a proceeding to challenge his initial admission to the hospital and, at the end of the 48-hour period, consented to a voluntary admission. Hence, even assuming, without deciding, that an emergency admission pursuant to Mental Hygiene Law § 9.39 (a) — once challenged — compels the admitting facility to present clear and convincing evidence to justify its retention of the affected patient (compare Rodriguez v City of New York, 72 F3d 1051 [1995], with Matter of Boggs v New York City Health & Hosps. Corp., 132 AD2d 340 [1987], appeal dismissed 70 NY2d 972 [1988]), that simply is not the nature of this proceeding, and nothing in the case law imposes either that burden or that evidentiary standard upon respondents in the context of the instant sealing application. 1335*1335 Accordingly, we agree with Supreme Court's dismissal of petitioner's application.

Ordered that the judgment is affirmed, without costs.

[1] The record does reflect, however, that petitioner reported to the professor that he suffered from bipolar disorder.

[2] On November 24, 2013, petitioner executed a voluntary request for hospitalization, which extended his stay until November 26, 2013."

BRINGING AN ACTION ANONYMOUSLY IN FEDERAL COURT

 

Doe v. FREYDIN, Dist. Court, SD New York 2021:

"NAOMI REICE BUCHWALD, District Judge.

Plaintiff Jane Doe brings this action against her former employers, Arthur Freydin, his wife Sarah McLoughlin, and their companies Basic Creative, LLC and Tandem Marketing, Inc. (collectively, "defendants"), asserting various claims under New York State and City law for alleged sexual assault, sexual harassment, and surreptitious recording. Before the Court is plaintiff's motion to proceed anonymously under the pseudonym Jane Doe and for a protective order mandating that defendants keep plaintiff's identity confidential. For the following reasons, plaintiff's motion is denied.

I. BACKGROUND

Plaintiff is a recent college graduate who began working for defendants in February 2021, first as a babysitter for McLoughlin and shortly thereafter as an assistant for Freydin at Basic Creative, LLC and Tandem Marketing, Inc., entities owned and operated by Freydin and McLoughlin. Compl. ¶¶ 38-39 (ECF No. 7). Plaintiff alleges that as a condition of her employment, defendants required plaintiff to live in their apartment 4-to-5 nights per week and that plaintiff began doing so on or around August 28, 2021. Id. ¶ 40.

Plaintiff's claims against defendants center on the following allegations. First, plaintiff alleges that while she was working as an assistant, Freydin required plaintiff to pose for photographs in a state of undress while Freydin applied kinesiology tape to her neck and back, purportedly to demonstrate the application of the tape as part of the company's marketing efforts. Compl. ¶¶ 42-43. Second, plaintiff alleges that Freydin and McLoughlin placed hidden cameras in the bedroom and bathroom designated for her use when she was living at their residence and secretly recorded her. Id. ¶¶ 46-48. Plaintiff also alleges that defendants sexually harassed her and subjected her to a controlling work environment. Id. ¶¶ 44-45, 88.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 10(a), which requires that the title of a complaint name all the parties to a litigation, "serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly." Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 188-89 (2d Cir. 2008). Nonetheless, in limited circumstances, courts may grant an exception to this rule and allow a plaintiff to proceed under a pseudonym when the plaintiff's "interest in anonymity" outweighs "both the public interest in disclosure and any prejudice to the defendant." Id. at 189. In Sealed Plaintiff, the Second Circuit articulated a non-exhaustive list of ten factors for courts to consider when conducting this balancing test. Id.^[1] However, the district court need not "list each of the factors or use any particular formulation as long as it is clear that the court balanced the interests at stake in reaching its conclusion." Id. at 191 n.4.

III. DISCUSSION

Plaintiff argues that the first factor weighs in her favor because her claims involve "sexual assault, sexual harassment and unlawful, surreptitious recording of Plaintiff in areas demanding the utmost privacy — the bedroom and bathroom[,]" Pl's Mem. at 5 (ECF No. 10), and thus are "highly sensitive and of a personal nature." Sealed Plaintiff, 537 F.3d at 190. "[W]hile this factor supports granting Plaintiff's motion . . . the nature of Plaintiff's allegations alone does not suffice to permit her to proceed anonymously." Doe v. Gong Xi Fa Cai, Inc., No. 19 Civ. 2678 (RA), 2019 WL 3034793, at *1 (S.D.N.Y. July 10, 2019); see also Doe v. Skyline Automobiles Inc., 375 F. Supp. 3d 401, 406 (S.D.N.Y. 2019) (concluding the first Sealed Plaintiff factor is not dispositive). Indeed, courts in this District have denied motions to proceed anonymously in numerous cases involving allegations of sexual harassment and sexual assault. See, e.g., Rapp v. Fowler, No. 20 Civ. 9586 (LAK), 2021 WL 1738349, at *1 (S.D.N.Y. May 3, 2021) (denying motion to proceed anonymously in case involving statutory rape); Doe v. Townes, No. 19 Civ. 8034 (ALC) (OTW), 2020 WL 2395159, at *1 (S.D.N.Y. May 12, 2020) (denying same motion in case involving sexual assault); Doe v. Weinstein, 484 F. Supp. 3d 90, 98 (S.D.N.Y. 2020) (same); Skyline Automobiles, 375 F. Supp. 3d at 404 (denying same motion in case where plaintiff was "drugged and brutally raped").

Although plaintiff argues otherwise, the second and third factors, which consider the risk of harm to plaintiff if her identity is disclosed, do not favor her.^[2] To start, plaintiff argues that there is "great risk" of defendants retaliating against her by, for example, providing negative references to her prospective employers, and that such retaliation would deter potential witnesses from coming forward. Pl's Mem. at 5-6. This argument has no purchase where, as here, the defendants already know the plaintiff's identity. See Doe v. United States, No. 16 Civ. 7256 (JGK), 2017 WL 2389701, at *3 (S.D.N.Y. June 1, 2017) (explaining that allowing plaintiff to proceed anonymously "would do nothing to protect him" from retaliation since defendant knows plaintiff's identity) (citations omitted).

In this regard, to justify the exceptional relief of proceeding anonymously, plaintiff must establish with sufficient specificity the incremental injury that would result from disclosure of her identity. See Gong Xi Fa Cai, 2019 WL 3034793, at *2 (finding anonymity was not warranted "absent more direct evidence linking disclosure of [plaintiff's] name to a specific physical or mental injury"); Fowler, 2021 WL 1738349, at *5 (explaining that at issue on a motion to proceed anonymously is whether public disclosure would cause unique harm above and beyond any harm caused by the underlying events); see also Skyline Automobiles, 375 F. Supp. 3d at 406 ("Courts in this District have held that speculative claims of physical or mental harms are insufficient to bolster a request for anonymity.") (citation omitted); Abdel-Razeq v. Alvarez & Marsal, Inc., No. 14 Civ. 5601 (HBP), 2015 WL 7017431, at *3 (S.D.N.Y. Nov. 12, 2015) ("[T]he potential for embarrassment or public humiliation does not, without more, justify a request for anonymity.").

The single case plaintiff cites in support of her claim of psychological injury, Doe v. Smith, cuts against plaintiff, who, unlike the plaintiff in Smith, has not submitted any corroborating medical testimony. See 105 F. Supp. 2d 40, 43-44 (E.D.N.Y. 1999). In Smith, the court concluded that the plaintiff satisfied her burden of demonstrating harm only after she submitted "specific evidence predicting that revelation of her identity will likely cause psychological and emotional pain so intense that it would threaten her stability, her safety, and even her life." Id. (citing affidavit submitted by plaintiff's doctor); see also Doe No. 2. v. Kolko, 242 F.R.D. 193, 196 (E.D.N.Y. 2006) (concluding plaintiff's submissions, which included psychiatrist's declaration, "are sufficiently particularized and specific to establish a serious risk of harm to plaintiff's mental health"). As such, plaintiff's bald assertion that disclosure of her identity would subject her to "further mental harm, harassment, ridicule and personal embarrassment," Doe Aff. ¶ 4 (ECF No. 9 Ex. 1), supported only by her own affidavit, is insufficient.

Furthermore, it is not lost on the Court that plaintiff has chosen to inflict upon others the precise harm she now seeks to avoid: "having her name publicly tied to [defendants'] heinous acts." Pl's Mem. at 9-10. Specifically, plaintiff's Complaint needlessly exposes identifying information about numerous non-parties, including defendants' ten-year-old son and his grandmother, another family member, and an ex-colleague, in total disregard of their privacy interests. See, e.g., Compl. ¶¶ 39, 50, Ex. A.

Short of total anonymity, "there are [] alternative mechanisms for protecting the confidentiality of the plaintiff," Sealed Plaintiff, 537 F.3d at 190 (tenth factor), that can mitigate the potential harms of disclosure, such as "sealing and redacting certain documents containing sensitive information. . . ." Gong Xi Fa Cai, 2019 WL 3034793, at *3 (internal quotation marks, citations, and alteration omitted). Plaintiff thus fails to establish that disclosure of her identity presents a severe risk of harm.

"In considering the sixth factor," which evaluates the prejudice to defendants absent disclosure, "courts have examined difficulties in conducting discovery, the reputational damage to defendants, and the fundamental fairness of proceeding anonymously." Fowler, 2021 WL 1738349, at *6 (internal quotation marks and citations omitted). Although defendants know who plaintiff is, concealment of plaintiff's identity from the public can still hamper defendants' ability to conduct discovery. See id. at *7. In addition, plaintiff levies serious, reputation-threatening accusations against defendants that have already garnered significant media attention.^[3] "[C]ourts have found that defending against such allegations publicly, while a plaintiff is permitted to make her `accusations from behind a cloak of anonymity,' is prejudicial." Gong Xi Fa Cai, 2019 WL 3034793, at *2 (quoting Doe v. Shakur, 164 F.R.D. 359, 361 (S.D.N.Y. 1996)). As such, the sixth factor also weighs against plaintiff.^[4]

With respect to the seventh factor, which asks whether plaintiff's identity has thus far been kept confidential, plaintiff asserts that although there has been press coverage about her case, she has been identified only as Jane Doe and remains anonymous to the general public. Pl's Mem. at 7. Assuming, arguendo, that plaintiff's representation is accurate, this factor weighs in her favor even though defendants know who she is. See Gong Xi Fa Cai, 2019 WL 3034793, at *2 (finding seventh factor favors plaintiff where only defendants knew plaintiff's identity). Ultimately, however, the seventh factor is not significant enough to tip the scales. See Weinstein, 484 F. Supp. 3d at 97.

By contrast, factors eight and nine, which consider the public interests at stake, strongly weigh against permitting plaintiff to https://nypost.com/2021/10/11/married-nyc-businessman-secretly-recorded-live-in-assistant-in-bathroom-lawsuit-claims/. proceed anonymously. Plaintiff argues, without support, that the issues in this case are legal in nature, such that "there is an atypically weak public interest in knowing litigants' identities." Sealed Plaintiff, 537 F.3d at 190 (ninth factor). To the contrary, this is precisely the type of case involving "particular actions and incidents," where open proceedings would "benefit the public as well as the parties and also serve the judicial interest in accurate fact-finding and fair adjudication." Weinstein, 484 F. Supp. 3d at 97-98 (internal quotation marks and citation omitted). Indeed, in cases such as this one, "[w]hen the allegations involve workplace harassment, courts more commonly find that the public interest counsels against anonymity." Gong Xi Fa Cai, 2019 WL 3034793, at *2. Finally, as this court explained in Fowler:

"Though . . . the public generally has an interest in protecting those who make sexual assault allegations so that they are not deterred from vindicating their rights, it does not follow that the public has an interest in maintaining the anonymity of every person who alleges sexual assault or other misconduct of a highly personal nature."

2021 WL 1738349, at *8 (emphasis in original).

Plaintiff seeks to rely on New York Civil Rights Law § 50-b to bolster her argument that the public interest disfavors disclosure. Pl's Mem. at 8. New York Civil Rights Law § 50-b provides that "[t]he identity of any victim of a sex offense as defined [in the relevant statutes] . . . shall be confidential." However, plaintiff provides no authority supporting the application of this state law in a federal case. In any event, it is far from clear that plaintiff's allegations rise to the level of a "sex offense" such that she would be entitled to relief under § 50-b.^[5]

IV. CONCLUSION

As the foregoing demonstrates, plaintiff has not met her burden of demonstrating that her "interest in anonymity" outweighs the prejudice to defendants and "the customary and constitutionally-embedded presumption of openness in judicial proceedings." Sealed Plaintiff, 537 F.3d at 189 (quoting Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 685 (11th Cir. 2001)). Accordingly, plaintiff's motion to proceed anonymously and for a protective order mandating that defendants keep plaintiff's identity confidential is denied. Given the sensitivity of the allegations at issue, the Court stays this Order for seven days to enable plaintiff and her counsel to consider this ruling.

SO ORDERED.

[1] The Sealed Plaintiff factors are: "(1) whether the litigation involves matters that are highly sensitive and of a personal nature; (2) whether identification poses a risk of retaliatory physical or mental harm to the . . . party seeking to proceed anonymously . . .; (3) whether identification presents other harms and the likely severity of those harms . . .; (4) whether the plaintiff is particularly vulnerable to the possible harms of disclosure . . . particularly in light of [her] age; (5) whether the suit is challenging the actions of the government or that of private parties; (6) whether the defendant is prejudiced by allowing the plaintiff to press [her] claims anonymously, whether the nature of that prejudice (if any) differs at any particular stage of the litigation, and whether any prejudice can be mitigated by the district court; (7) whether the plaintiff's identity has thus far been kept confidential; (8) whether the public's interest in the litigation is furthered by requiring the plaintiff to disclose [her] identity; (9) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants' identities; and (10) whether there are any alternative mechanisms for protecting the confidentiality of the plaintiff. . . ." 537 F.3d at 189-90(internal quotation marks and citations omitted).

[2] The related fourth factor does not weigh in plaintiff's favor, either. As an adult, plaintiff cannot, and does not, contend that she is "particularly vulnerable to the possible harms of disclosure . . . in light of [her] age." Sealed Plaintiff, 537 F.3d at 190.

[3] See, e.g., Rebecca Rosenberg, "Married NYC businessman secretly recorded live-in assistant in bathroom, lawsuit claims," N.Y. Post (Oct. 11, 2021),

[4] Plaintiff does not address the related fifth factor, which distinguishes between suits against private parties and suits against the government. Courts are more reluctant to permit anonymity where, as here, a suit involves private individuals, because allegations of misconduct "`may cause damage to their good names and reputations,' among other things." Skyline Automobiles, 375 F. Supp. 3d at 406 (quoting North Jersey Media Group, Inc. v. Doe Nos. 1-5, No. 12 Civ. 6152 (VM) (KNF), 2012 WL 5899331, at *7 (S.D.N.Y. Nov. 26, 2012)).

[5] Since all of plaintiff's claims are brought under New York State and New York City statutes and common law, there would appear to be no barrier to plaintiff discontinuing this lawsuit and re-filing in New York state court in a direct effort to rely on § 50-b, should plaintiff disagree with this Court's reading of the provision."

SEALING COURT FILINGS

Styles v. Podz Inc., Date filed: 2021-05-13, Court: Supreme Court, New York, Judge: Justice Arlene Bluth, Case Number: 652677/2021:

"The motion by plaintiff to seal the summons with notice filed by plaintiff is denied. Plaintiff alleges that she was fired for exposing and objecting to purportedly improper conduct by defendant Imbruce. She contends that she discovered that Imbruce was allegedly sending inappropriate messages using the company’s social media account and when she confronted Imbruce about these issues, he worsened his treatment of her. Plaintiff says she was a consultant for defendant Podz, Inc. and she was eventually promised money in exchange for keeping silent about Imbruce’s lewd acts while Podz was in negotiations to be acquired by another company for a substantial amount of money. However, that agreement was never formalized. The summons with notice also mentions witnesses, a phone call and a video recording which all allegedly substantiate plaintiff’s claim. Now plaintiff moves to seal this document on the ground that it was “prematurely filed” while negotiating a confidential settlement agreement with defendants. Plaintiff explains that the parties have agreed to a settlement in principle but that the settlement will not be finalized if this document remains in NYSCEF with public access. She claims that all sides agree that the document should be sealed. Plaintiff emphasizes that the parties were involved in a “private dispute.” “Under New York law, there is a broad presumption that the public is entitled to access to judicial proceedings and court records. This State has long recognized that civil actions and proceedings should be open to the public in order to ensure that they are conducted efficiently, honestly, and fairly” (Mosallem v. Berenson, 76 AD3d 345, 348, 905 NYS2d 575 [1st Dept 2010] [internal quotations and citations omitted]). “Confidentiality is clearly the exception, not the rule and the party seeking to seal court records has the burden to demonstrate compelling circumstances to justify restricting public access” (id. at 346). The Court denies the motion. As an initial matter, the Court rejects plaintiff’s claim that the filing should be sealed because it was “prematurely filed.” That makes no sense. The document plaintiff seeks to seal is the commencing document for the entire case. Not only did plaintiff upload the document, she paid the filing fee. That demonstrates a deliberate decision to upload the document and start a case. The fact that plaintiff later regrets filing the document or that defendants insist that it should be sealed as part of a settlement is of no concern to this Court. Plaintiff chose to file a document that contained serious allegations while apparently in the middle of what she now refers to as a “private dispute.” But it was plaintiff who made it a public dispute by starting the case and filing a publicly accessible document. The only reason this case is before the undersigned is because plaintiff chose to file the document. And, of course, if plaintiff was insistent on filing something, she could have filed a summons with notice that contained fewer details. The summons with notice at issue here is akin to a complaint. The Court recognizes that there are often good reasons to seal documents, such where the filings contain confidential information (like a Social Security number) or trade secrets. This is also not a situation where a party inadvertently files an exhibit that it promised to keep confidential or forgot to include redactions. Instead, plaintiff appears to want the document sealed so she can settle the case. That’s not a reason to restrict public access to court files, especially where the document at issue is the commencing document for the entire case."

ON NEW YORK'S NEW "SEALING RULE"

In today's Newsday, the main story discussed a new state law aimed at giving nonviolent offenders a clean slate. As of October 7, 2017, New York courts may expunge eligible offenses under Section 160.59 of the Criminal Procedure Law.

The Law Offices of Robert Briere, a ​New York City Criminal Defense Lawyer,  ​30 Wall Street, New York, NY 10005, had noted on their web site that CPL 160.05 was not the only statute dealing with the sealing of criminal records:

"Remember that CPL 160.59 requires a ten year waiting period before the conviction can be sealed. So, in the meantime, what records can be sealed in New York before the ten year period has run?

Prior to the ten year period running, a record of a criminal conviction, which is any misdemeanor or felony except a youthful offender adjudication, cannot be sealed and is considered a public record available to anyone through the OCA website for a $55 fee. It does not matter if the person had the charge reduced from a felony to a misdemeanor or only received probation. There are no exceptions to the rule.

In New York, the only records that get completely sealed outside of the provisions of CPL 160.59 (pursuant to CPL 160.50) are cases that result in complete dismissals including:

ACD's and other forms of dismissals and acquittals. whenever a case is fully dismissed either through an ACD an acquittal after trial or if the case is dismissal in the interests of justice for dismissed for facial insufficiency...whatever the reason for the dismissal... these get the full sealing treatment of CPL 160.50. On the other hand, charges that are reduced from a misdemeanor or felony to a violation or infraction get the partial seal treatment of CPL 160.55.

How does sealing of a New York Record differ between CPL 160.59 and CPL 160.50 and CPL 160.55?

A sealing under CPL 160.59 occurs upon application of a person with two or less criminal convictions and no more than one felony conviction (that are at least ten years old) pursuant to the process outlined above. A sealing under 160.50 occurs in New York when a criminal charge is dismissed completely, while a sealing under 160.55 occurs when a criminal charge is reduced from a misdemeanor or felony to a violation or infraction.

A sealing under CPL 160.50 is the most favorable of the three since the 160.50 sealing mandates destruction of the arrest record and the sealing of the court file. A sealing under 160.55 is not as comprehensive as the 160.50 sealing. The 160.55 sealing occurs when someone is arrested or charged with a criminal offense, but is ultimately convicted of a violation or infraction, the sealing of the arrest records is accomplished pursuant to CPL 160.55 (1) (c), which means that records of the arrest, such as mugshots, arrest reports and fingerprints are destroyed but the Court file stays open.

The CPL 160.59 is a hybrid of the 160.50 and the 160.55 as is allows for the court file to be sealed but the arrest records remain unsealed." ​

SEALING COURT RECORDS

Recently, Newsday has reported on the sealing of court records in civil cases. The rule, from the Administrative Rules of the Unified Court System & Uniform Rules of the Trial Courts, is set forth herein:

"Section 216.1 Sealing of court records.

(a) Except where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, 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. Where it appears necessary or desirable, the court may prescribe appropriate notice and opportunity to be heard.

(b) For purposes of this rule, "court records" shall include all documents and records of any nature filed with the clerk in connection with the action. Documents obtained through disclosure and not filed with the clerk shall remain subject to protective orders as set forth in CPLR 3103(a).

Historical Note
Sec. filed Feb. 28, 1991 eff. March 1, 1991.