PB-7 Doe v. Amherst Cent. Sch. Dist.

• Citation: 196 A.D.3d 9,148 N.Y.S.3d 305
• Decision Date: 07 May 2021
• Docket Number: 1222,CA 20-00117
• Court: New York Supreme Court — Appellate Division
• Parties: PB-7 DOE, Plaintiff-Respondent, v. AMHERST CENTRAL SCHOOL DISTRICT, Amherst Central High School and John Koch, Also Known as Jack Koch, Defendants-Appellants.

196 A.D.3d 9

148 N.Y.S.3d 305

PB-7 DOE, Plaintiff-Respondent,

v.AMHERST CENTRAL SCHOOL DISTRICT, Amherst Central High School and John Koch, Also Known as Jack Koch, Defendants-Appellants.

1222

CA 20-00117

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: May 7, 2021

HODGSON RUSS LLP, BUFFALO (JULIA M. HILLIKER OF COUNSEL), FOR DEFENDANTS-APPELLANTS AMHERST CENTRAL SCHOOL DISTRICT AND AMHERST CENTRAL HIGH SCHOOL.

WALSH, ROBERTS & GRACE, BUFFALO (MARK P. DELLA POSTA OF COUNSEL), FOR DEFENDANT-APPELLANT JOHN KOCH, ALSO KNOWN AS JACK KOCH.

PHILLIPS & PAOLICELLI, LLP, NEW YORK CITY (DIANE M. PAOLICELLI OF COUNSEL), AND FANIZZI & BARR, P.C., NIAGARA FALLS, FOR PLAINTIFF-RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, TROUTMAN, BANNISTER, AND DEJOSEPH, JJ.

OPINION AND ORDER

Opinion by Smith, J.:

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

In 2019, plaintiff commenced this personal injury action pursuant to the Child Victims Act ([CVA] see CPLR 214-g ), alleging that she was sexually abused over a period of several years in the early 1980s while attending school at defendant Amherst Central High School (School) by a person who purported to be a guidance counselor there. In the complaint, plaintiff referred to herself as "PB-7 Doe" and, several weeks after commencing the action, she moved by order to show cause for permission to use that pseudonym. Defendants appeal from an order granting that motion, and we affirm.

Initially, we decline to address defendants’ contention that Supreme Court properly determined that Civil Rights Law § 50-b does not apply because they are not aggrieved by that part of the order (see CPLR 5511 ).

Contrary to defendants’ contention, there is nothing in the CVA that indicates that the legislature, when enacting the statute, intended to bar the use of pseudonyms. The CVA was enacted on February 14, 2019 (see L 2019, ch 11, § 3). Well before that date, however, New York State courts permitted parties to proceed using a title and caption containing a fictitious name in certain circumstances (see e.g. Anonymous v. Anonymous , 158 A.D.2d 296, 297, 550 N.Y.S.2d 704 [1st Dept. 1990] ), and the courts of New York continue to permit that practice where the circumstances warrant it (see e.g. Doe v. Bloomberg, L.P. , 36 N.Y.3d 450, 473, 143 N.Y.S.3d 286, 167 N.E.3d 454 [2021] ). In addition, although not binding on this Court, the federal courts also permit a party to proceed using a pseudonym if special circumstances warrant anonymity (see e.g. Roe v. Wade , 410 U.S. 113, 120 n. 4, 93 S.Ct. 705, 35 L.Ed.2d 147 [1973] ; Roe v. Aware Woman Ctr. for Choice, Inc. , 253 F.3d 678, 685-687 [11th Cir. 2001], cert denied 534 U.S. 1129, 122 S.Ct. 1067, 151 L.Ed.2d 970 [2002] ; Does I thru XXIII v. Advanced Textile Corp. , 214 F.3d 1058, 1067-1069 [9th Cir. 2000] ). The CVA does not include any language that would change the state of the law with respect to the use of pseudonyms. Thus, any change in the existing law could arise only by implication. "[I]t is a general rule of statutory construction[, however,] that a clear and specific legislative intent is required to override the common law" ( Hechter v. New York Life Ins. Co. , 46 N.Y.2d 34, 39, 412 N.Y.S.2d 812, 385 N.E.2d 551 [1978] ; see Assured Guar. [UK] Ltd. v. J.P. Morgan Inv. Mgt. Inc. , 18 N.Y.3d 341, 351, 939 N.Y.S.2d 274, 962 N.E.2d 765 [2011] ; see also Fumarelli v. Marsam Dev., Inc. , 92 N.Y.2d 298, 306, 680 N.Y.S.2d 440, 703 N.E.2d 251 [1998] ). No such clarity exists in the CVA. It is long settled that this Court will not infer "that it was the intention of the [l]egislature to make a radical change in the policy of the state" from the legislature's failure to include a provision in a statute ( Matter of Lampson. , 33 App. Div. 49, 59, 53 N.Y.S. 531 [4th Dept. 1898], affd 161 N.Y. 511 [1900] ).

In addition, several trial courts have addressed the legislature's intent in enacting the CVA with respect to the use of pseudonyms and concluded 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. MacFarland , 66 Misc. 3d 604, 614, 117 N.Y.S.3d 476 [Sup. Ct., Rockland County 2019] ; see also HCVAWCR-Doe v. Roman Catholic Archdiocese of N.Y. , 68 Misc. 3d 1215(A), 2020 N.Y. Slip Op. 50966(U), *2, 2020 WL 5083668 [Sup. Ct., Westchester County 2020] ).

Based on the case law that preexisted the enactment of the CVA and the lack of any indication that the legislature intended to change that law by enacting the CVA, we agree with the reasoning of those trial courts and we conclude that no such intent existed. Consequently, we conclude that the legislature did not intend in enacting the CVA to eliminate the use of pseudonyms in cases commenced pursuant to that statute.

Nevertheless, permission to use a pseudonym will not be granted automatically. The First Department has "remind[ed] 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, but should exercise its discretion to limit the public nature of judicial proceedings ‘sparingly’ and ‘then, only when unusual circumstances necessitate it’ " ( Anonymous v. Anonymous , 27 A.D.3d 356, 361, 814 N.Y.S.2d 21 [1st Dept. 2006] ; see Applehead Pictures LLC v. Perelman , 80 A.D.3d 181, 192, 913 N.Y.S.2d 165 [1st Dept. 2010] ; see also Koziol v. Koziol , 60 A.D.3d 1433, 1434, 878 N.Y.S.2d 524 [4th Dept. 2009], appeal dismissed 13 N.Y.3d 764, 886 N.Y.S.2d 864, 915 N.E.2d 1161 [2009]). In determining whether to grant a plaintiff's request to proceed anonymously, the court must " ‘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 A.D.3d 487, 487, 998 N.Y.S.2d 619 [1st Dept. 2015] ). " ‘[C]laims of public humiliation and embarrassment ... are not sufficient grounds for allowing a plaintiff ... to proceed anonymously’ " ( id. at 488, 998 N.Y.S.2d 619 ).

Thus, when confronted with a request to proceed using a pseudonym, a motion court must balance the interests of the parties, the public, and justice. Although no single factor is more important than another, the factors used in federal courts provide appropriate guidelines by which to review the propriety of such a motion. One federal court, in reviewing a request to proceed using a pseudonym, stated that

"[a]mong the factors courts have considered in balancing these competing interests are: 1) whether the plaintiff is challenging governmental activity or an individual's actions, 2) whether the plaintiff's action requires disclosure of information of the utmost intimacy, 3) whether identification would put the plaintiff at risk of suffering physical or mental injury, 4) whether the defendant would be prejudiced by allowing the plaintiff to proceed anonymously, and 5) the public interest in guaranteeing open access to proceedings without denying litigants access to the justice system.... Related to the third factor is the concern ‘whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties ...’

As to the first and fifth factors, whether the defendants are governmental entities is significant because a challenge to governmental policy ordinarily implicates a public interest and the government has less of a concern with protecting its reputation than a private individual" ( Doe No. 2 v. Kolko , 242 F.R.D. 193, 195 [E.D. N.Y. 2006] ).

In addition, the federal courts have stated that "fictitious names are allowed when necessary to protect the privacy of ... rape victims, and other particularly vulnerable parties or witnesses" ( Doe v. Blue Cross & Blue Shield United of Wis. , 112 F.3d 869, 872 [7th Cir. 1997] ). Thus, a court has discretion to permit the use of a pseudonym where the complaint "allege[s] a matter implicating a privacy right so substantial as to outweigh the customary and constitutionally embedded presumption of openness in judicial proceedings" ( "J. Doe No. 1" v. CBS Broadcasting Inc. , 24 A.D.3d 215, 215, 806 N.Y.S.2d 38 [1st Dept. 2005] ; see Doe v. Doe , 189 A.D.3d 406, 407, 132 N.Y.S.3d 778 [1st Dept. 2020] ).

Here, we conclude that the court properly granted plaintiff's motion. We note that the sole document that plaintif...