Doe v. MacFarland

• Decision Date: 10 December 2019
• Docket Number: 34675/2019
• Citation: 117 N.Y.S.3d 476,66 Misc.3d 604
• Parties: Jane DOE, Plaintiff, v. Ronald MACFARLAND, Clarkstown Central School District, and Various Employees of Clarkstown Central School District Whose Names are Currently Unknown and Thus Designated as Donald Doe I-XXX, Defendants.
• Court: New York Supreme Court

66 Misc.3d 604

117 N.Y.S.3d 476

Jane DOE, Plaintiff,

v.Ronald MACFARLAND, Clarkstown Central School District, and Various Employees of Clarkstown Central School District Whose Names are Currently Unknown and Thus Designated as Donald Doe I-XXX, Defendants.

34675/2019

Supreme Court, Rockland County, New York.

Decided December 10, 2019

Kevin Mulhearn, Esq., Attorney for Plaintiff, 60 Dutch Hill Rd, Suite 6B, Orangeburg, NY 10962, Law Offices of Daniel E. Bertolino

Laurie A Dorsainvil, Esq., Attorneys for Defendant MacFarland, 407 North Highland Avenue, Upper Nyack, NY 10960

Paul I. Marx, J.

Plaintiff's renewed motion, brought by Order to Show Cause, seeks an order (1) permitting "Plaintiff to file and prosecute her claims using a ‘Jane Doe’ designation on the grounds that Plaintiff brings this action pursuant to the New York Child Victims Act, CPLR § 214-g, alleging child sexual abuse, and is afforded privacy protections pursuant to New York Civil Rights Law § 50-b"; (2) allowing "this action to be commenced, and the file maintained in this action, under a caption containing a ‘Jane Doe’ designation"; (3) directing "that only the Jane Doe designation for the Plaintiff [shall] appear within the body of any documents filed with the Court"; and (4) requiring that "all documents that bear the true name of the Jane Doe Plaintiff, or any document that tends to identify the Plaintiff shall be redacted by the party filing such document and the original un-redacted document shall be retained by the party who has filed the redacted document for an in camera inspection by the Court."¹

Order to Show Cause/Affirmation of Kevin T. Mulhearn, Esq./Affidavit of Plaintiff² 1-3

Affirmation in Opposition of Laurie A. Dorsainvil, Esq/Exhibit A 4-5

Reply Affidavit of Plaintiff 6

Plaintiff's Memorandum of Law in Further Support/ Exhibits A-C 7-8

Introduction/Background

With the enactment of New York's Child Victims Act, CPLR § 214-g, which permits claims arising from alleged sexual abuse of children to be brought decades after the events complained of, came the almost inevitable onslaught of lawyers advertising for clients to prosecute such claims.³ Many of those advertisements suggest, if not overtly state, that victims of child sex abuse can proceed anonymously. So ubiquitous have these advertisements become that it is likely that the public perception is that plaintiffs have a nearly absolute right to proceed in these cases without revealing their identity. Indeed, counsel bringing these actions and applications to proceed anonymously often fail to submit an affidavit or other showing of the necessity for anonymity. This case was no exception.

In fact, plaintiff's counsel in this action previously filed an Order To Show Cause seeking an order permitting plaintiff to proceed as "Jane Doe", without any supporting documents. In addition to being unsupported by an affidavit of a person with knowledge, the application made no provision for the defendants to know the identity of the plaintiff. This omission was sufficient in and of itself to warrant denial of the motion.⁴ Thus, by Decision and Order dated August 30, 2019, the Court denied the prior motion on that ground. NYSCEF Document #6.

Applications by plaintiffs in Child Victims Act cases for leave to proceed anonymously have met with differing results. Some courts have granted the application where it was unopposed and plaintiff submitted an affidavit claiming that the "case is likely to draw attention from the media, and if plaintiff is not allowed to proceed under a pseudonym, increased media attention may lead to a chilling effect that may inhibit plaintiff and other alleged victims of abuse from coming forward." See e.g. Doe v. Kara , ("Kara ") (Sup Ct Queens County, September 22, 2019, Silver, J. Index #714910/2019). Some courts have granted the application based solely on an affirmation of counsel where the application was not opposed. Doe v. Roman Catholic Diocese of Albany , (Sup Ct Orange County September 5, 2019, Sciortino, J., Index # 006469/2019). As indicated above, some courts, this one included, have denied the application with leave to renew where the application was made without an affidavit of the plaintiff. See also, Doe v. Good Samaritan Hospital , ("Good Samaritan Hospital") 2019 N.Y. Slip Op. 29313, 110 N.Y.S.3d 830 (Sup. Ct. Nassau County, October 3, 2019, Jaeger, J.).⁵

Just weeks ago, a court granted an opposed application for leave to proceed anonymously in an action which was revived by the Child Victims Act. ARK 55 Doe v. Archdiocese of New York , ("Ark 55" ) (Sup. Ct. New York County, November 4, 2019, Silver, J. Index #950049/2019).⁶ The decisions in Ark 55 and Kara, supra , merit additional consideration, as discussed below.

The Instant Application

Plaintiff moves by Order to Show Cause for leave to file and prosecute her complaint using a "Jane Doe" designation "on the grounds that Plaintiff brings this action pursuant to the New York Child Victims Act, CPLR § 214-g, alleging child sexual abuse, and is afforded privacy protections pursuant to New York Civil Rights Law § 50-b", and for related relief which will allow her identity to be concealed. In support thereof, plaintiff submits the affirmation of her attorney and her own affidavit. Plaintiff does not submit a copy of the underlying complaint. Rather, in her affidavit, plaintiff alleges solely that "as a minor child I was forced to submit to sexual relations with Defendant, Ronald MacFarland, for a prolonged period of time. The sexual abuse has had an extraordinarily negative and profound impact on all aspects of my life." (Affidavit ¶5). She continues, "I may suffer further mental anguish, trauma, humiliation, re-victimization, and additional emotional harm should my identity be revealed". (Id. ¶7).

On the initial return date of the Order to Show Cause, the Court inquired of plaintiff's counsel whether he intended to secret plaintiff's identity from defendant. The response was in the negative. Counsel agreed to provide the plaintiff's name and significant identifying information to defense counsel when the hearing concluded. Thus, plaintiff's application was clarified as seeking leave to proceed under a pseudonym and to conceal her identity from the public, not defendants. A briefing schedule was then set by the Court.

Defendant Clarkstown Central School District ("the School District") has not submitted any papers in connection with the motion.

Defendant Ronald MacFarland ("MacFarland") opposes the application, supported by an affirmation of his counsel, a copy of plaintiff's complaint and his verified answer, which includes a counterclaim.

Plaintiff's complaint alleges that beginning in or about May 1984, and continuing for a period of over five years thereafter, MacFarland, then a guidance counselor at Clarkstown North High School, engaged in sexual activity with plaintiff while she was a minor.⁷ She alleges that the "relationship" was well known to officials at the school, who failed to intercede and end it, despite the fact that MacFarland "flaunted [the] relationship" by, amongst other things, prominently displaying plaintiff's photo on his desk "for all to see". She alleges that MacFarland compelled her to engage in sexual activity on a nearly daily basis and that the forced relationship continued beyond her graduation from high school, through her college years and into her employment as a school teacher. She contends that she has "experienced lifelong problems with intimacy and confusion as to her views on sex". She asserts several causes of action against the School District and its employees, designated as: (1) "negligent security and supervision", (2) "breach of duty of care", and (3) "negligent supervision". She asserts a cause of action against MacFarland for assault and battery, for which she seeks compensatory and punitive damages.

In his answer, MacFarland denies that he engaged in a sexual relationship with plaintiff while she was a minor. Rather, he asserts that "Plaintiff and Defendant were engaged in a consensual sexual relationship for a number of years that began after Plaintiff reached the age of consent." Answer ¶92. He asserts fifteen affirmative defenses, contending that: (1) the parties "were engaged in a consensual relationship that began after plaintiff reached the age of consent", (2) there is no proximate cause of any damages, (3) the action is barred by laches, (4) the action is barred by waiver and estoppel, (5) the action should be dismissed as frivolous under 22 NYCRR § 130-1.1, (6) any claimed economic damages should be offset by collateral sources as provided for in CPLR § 4545, (7) the complaint fails to state a cause of action, (8) the action is barred by the statute of limitations, (9) the complaint lacks specificity as required by CPLR §§ 3014 and 3016, (10) any claim based on the Child Victims Act is barred to the extent that the Child Victims Act is found to violate the constitutions of the United States and/or State of New York, (11) the action is barred based on "spoliation of evidence", (12) plaintiff failed to mitigate her damages, (13) "the imposition of punitive damages would violate ... the Fifth and Fourteenth Amendments of the United States Constitution and relevant New York State constitutional law", (14) "any claim for punitive damages is barred, reduced, or in the alternative, is unconstitutional insofar as it constitutes an excessive fine as provided in the Eighth Amendment of the United States Constitution and Article 1, Section 5 of the Constitution of the State of New York", and (15) "the complaint is barred by Plaintiff's unclean hands". In addition, defendant asserts a counterclaim in which he alleges that "Plaintiff has knowingly alleged material factual statements that are false ... including ... allegations that Defendant had sexual relations with her when she was a child and that they had sex on a daily basis in his office ..." Id. ¶109. He...