Coopersmith v. Gold

Decision Date07 December 1992
PartiesSydelle Cindy COOPERSMITH, Plaintiff, v. Richard L. GOLD, M.D. and Richard L. Gold, M.D., P.C., Defendants.
CourtNew York Supreme Court

Bruce Brady, Callan, Regenstreich, Koster & Brady, New York City, for defendants.

Susan L. Corcoran, Birbrower, Montalbano, Condon & Frank, New York City, for plaintiff.

JOAN B. LEFKOWITZ, Justice.

FACTUAL BACKGROUND

In April 1986 plaintiff commenced an action against Dr. Richard Gold, a psychiatrist, and his professional corporation seeking Defendants moved for summary judgment to dismiss all three causes of action. The late Justice Kelly denied the motion in 1990. On April 11, 1991 the Appellate Division, Third Department reversed so much of Justice Kelly's order as refused to dismiss the fraud and battery causes of action. Coopersmith v. Gold, 172 A.D.2d 982, 568 N.Y.S.2d 250. The remaining cause of action in medical malpractice was remanded for trial on the merits as well as whether the doctrine of equitable estoppel was applicable regarding the statute of limitations.

                monetary damages in medical malpractice, for allegedly sexualizing their relationship while she was a patient, and for fraud and battery.   Defendants denied the allegations.   Extensive discovery was conducted.   Plaintiff publicized her allegations by giving interviews and appearing on nationally broadcast television shows
                

In June 1992 plaintiff moved for an order permitting her to introduce testimony of other patients' alleged claims of sexual contact with Dr. Gold. Defendants requested that the record be sealed. The applications came on to be heard on June 17, 1992 and no members of the public or press were in attendance. The Court heard counsel in chambers on the record, reviewed the documents submitted and rendered a written decision that day denying the motion and granting defendants' motion to seal the papers, transcript of the oral argument and decision of the Court. No gag order was imposed. 75 Am.Jur.2d, Trial, § 201; Ann. 56 ALR 4th 1214 (1987), § 3(A), Restraining Orders-Civil Cases.

In granting the sealing order the Court stated (decision of June 17, 1992, pages 2-4):

Sealing Motion

"Defendants move for an order sealing plaintiff's in limine motion and the papers in connection with the instant application.

The court has ruled that the proposed testimony of other persons, set forth in some detail in the moving papers, inadmissible as evidence-in-chief at the trial. The trial is scheduled for September 14, 1992. However, revelation of the details by the media of the proposed testimony that cannot be presented as evidence-in-chief at the trial would cause great harm to all parties: (1) it is quite possible that some of the proposed witnesses will be identified thereby breaching an implicit (if not explicit) promise of confidence and anonymity between plaintiff and the proposed witnesses, and (2) possible taint of the juror pool in Rockland County as the pretrial publicity and notoriety of the alleged similar misdeeds of the defendant Dr. Gold would surely carry over into the jury selection process. It would serve no useful purpose to release the information contained in the motion papers at this time while attempting to contain the damage publicity would likely cause where the proposed evidence is not admissible in the first instance. See Matter of Westchester Rockland Newspapers v. Leggett, 48 N.Y.2d 430, 438-39, 423 N.Y.S.2d 630, 399 N.E.2d 518 (1979); Matter of Gannett Co., Inc. v. DePasquale, 43 N.Y.2d 370, 380-381, 401 N.Y.S.2d 756, 372 N.E.2d 544 (1977), aff'd, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979); cf. Matter of Poughkeepsie Newspapers, Inc. v. Rosenblatt, 92 A.D.2d 232, 459 N.Y.S.2d 857 (2d Dep't 1983), aff'd, 61 N.Y.2d 1005, 475 N.Y.S.2d 370, 463 N.E.2d 1222 (1984).

Redacting the motion papers or the transcript of oral argument will not avoid the problems heretofore mentioned. At common law, notwithstanding the statutory provision that judicial proceedings generally be open to the public (Judiciary Law § 4), the right to inspect and copy judicial records is not absolute and it is a matter of the exercise of prudent judicial discretion whether such records should be sealed. Matter of Crain Communications, Inc. v. Hughes, 135 A.D.2d 351, 521 N.Y.S.2d 244 (1st Dep't 1987), app. dism. 71 N.Y.2d 993, 529 N.Y.S.2d 277, 524 N.E.2d 878 (1988), aff'd 74 N.Y.2d 626, 541 N.Y.S.2d 971, 539 N.E.2d 1099 (1989).

Effective February 6, 1991 is part 216 of the Uniform Rules for Trial Courts (22 NYCRR) pertaining to sealing of records. Section 216.1(a) provides that an order At the appropriate time after final disposition of this case by settlement or verdict, the court will entertain an application to unseal the records provided that the anonymity of the proposed witness may still be maintained, perhaps by redaction of certain details. Cf. Matter of Westchester Rockland Newspapers, Inc. v. Leggett, supra, 48 N.Y.2d 430, 444, 423 N.Y.S.2d 630, 399 N.E.2d 518."

                sealing court records shall not be made unless 'good cause' is shown.   Good cause has been established here as details of the allegations if publicized extensively might taint potential jurors and might lead to identification of some or all of the proposed witnesses.   Accordingly, confidentiality is essential at this stage of the proceedings and the records and transcript of the oral argument are directed to be sealed by the County Clerk, not to be opened except upon order of the court
                

Had the record not been sealed, an investigative reporter could have examined the County Clerk's file and published a report thereof in the newspapers subject only to the law on defamation. Shiles v. News Syndicate Co., 27 N.Y.2d 9, 313 N.Y.S.2d 104, 261 N.E.2d 251 (1970), cert. den. 400 U.S. 999, 91 S.Ct. 454, 27 L.Ed.2d 450 (1971); Star-Telegram, Inc. v. Walker, 834 S.W.2d 54 (Supreme Ct.Tex.1992); Ann. 43 ALR 3rd 634 (1972), Libel and Slander: Privilege of Reporting Judicial Proceedings; see Smith v. Daily Mail Publishing Co., 443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979) (can publish name of juvenile delinquent lawfully obtained); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975) (can publish rape victim's name lawfully obtained from court records); Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947) (cannot bar publication of information made public during trial); see, Freihofer v. Hearst Corp., 65 N.Y.2d 135, 490 N.Y.S.2d 735, 480 N.E.2d 349 (1985) (no cause of action for invasion of privacy or prima facie tort on publication of details of matrimonial from confidential court files).

Jury selection began on or about September 14, 1992. Trial commenced on September 22, 1992 and continued for fifteen days (including jury deliberations of parts of two days) during the period September 22 through October 22, 1992, exclusive of Jewish holidays when the Court was not in session. The trial was open to the public and other media. During the period of time the case was ongoing articles appeared in the dominant local newspaper, The Rockland Journal News, on ten separate occasions. 1 The local radio station, WRKL, also mentioned the trial at various times in its newscasts throughout the trial period. The verdict was reported by The Rockland Journal News and WRKL in Rockland County. The Court is also aware that the verdict was reported by WHUD in Westchester County as well as by the New York Times.

During the course of plaintiff's case Dr. Gold was called to testify and was asked by plaintiff's counsel whether he had The parties rested on October 15, 1992. The next day the plaintiff requested leave to reopen, to present two rebuttal witnesses, to refute the inferences raised by Dr. Gold's exhibition of his chest scars to the jury as part of his direct evidence that if plaintiff had seen his chest as she so testified when she claimed to have had sex with him, she would have had to have seen the scars, which she denied seeing. 2 The rebuttal witnesses, it was claimed, would testify to being patients of Dr. Gold, who had sexual relations with him but who also did not see scars on his chest. The Court directed counsel to submit written memoranda and denied leave to orally argue the point. On October 21, 1992 (the 17th and 18th being the weekend and the 19th and 20th being Jewish Holidays) the Court gave copies of its decision denying the plaintiff's motion to counsel. On defense counsel's application that part of the record and decision were sealed. Again the basis for denial of the motion was that the issue was too collateral and highly prejudicial. The record was sealed because jury deliberations were to begin that day.

                sexual relations with the plaintiff.   Dr. Gold answered in the negative.   Of course, that testimony could not be impeached by the plaintiff by introduction of testimony of other patients who would have testified that they too had sex with Dr. Gold, since the impeaching testimony was too collateral to the main issues.   Fisch on New York Evidence (2d ed.), § 486;  see simultaneous decision in Coopersmith v. Gold, decided today denying motion to set aside verdict.   However, plaintiff was not bound by Dr. Gold's response and did testify, herself, that Dr. Gold had told her about his sexual relations with other patients.  Spampinato v. A.B.C. Cons.  Corp., 35 N.Y.2d 283, 360 N.Y.S.2d 878, 319 N.E.2d 196 (1974);  Richardson on Evidence (10th ed.), § 512
                

On October 22, 1992 the jury returned its verdict finding that Dr. Gold did not have sexual relations with the plaintiff or otherwise deviate from accepted medical standards. Plaintiff was given fifteen days to formally move to set aside the verdict. On October 27, 1992 the Court executed the within order to show cause presented by Gannett...

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    ... ... The People and Mr. Macedonio's counsel have argued that Newsday's application is untimely ( Coopersmith v. Gold, 156 Misc.2d 594 N.Y.2d 521[Sup Ct. Rockland Co.1992]; CPLR 216[1] ). Although this contention is presented with great skill, the Court is ... ...
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    ... ... The People and Mr. Macedonio's counsel have argued that Newsday's application is untimely ( Coopersmith v ... Gold , 156 Misc 2d 594 NY2d 521[Sup Ct. Rockland Co.1992]; CPLR 216[1]). Although this contention is presented with great skill, the Court is ... ...
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