Preview
FILED: KINGS COUNTY CLERK 06/11/2021 10:23 AM INDEX NO. 514098/2021
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/11/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
ARK393 DOE, Index No. __________________
Plaintiff, EX PARTE AFFIRMATION IN
v. SUPPORT FOR AN ORDER TO
SHOW CAUSE FOR LEAVE TO
DIOCESE OF BROOKLYN a/k/a THE ROMAN FILE A CIVIL ACTION UNDER
CATHOLIC DIOCESE OF BROOKLYN, NEW THE CHILD VICTIMS ACT USING
YORK; HOLY FAMILY; and DOES 1-5 whose A PSEUDONYM
identities are unknown to Plaintiff,
Defendants.
JEFFREY R. ANDERSON, an attorney duly admitted to practice law in the State of New
York, hereby affirms under the penalty of perjury as follows:
1. I am an attorney with Jeff Anderson & Associates, representing the Plaintiff in this
CPLR § 214-g Child Victims Act (“CVA”) action, and I am fully familiar with the facts and
circumstances of this matter.
2. Pursuant to CPLR § 2217(b), no prior application has been made to this or any other
Court for the relief requested herein.
3. The Defendants’ negligence caused the Plaintiff to sustain serious and permanent
personal injuries as a result of being sexually abused as a child. Plaintiff’s Complaint, filed
concurrently herewith, describes in detail the events surrounding Plaintiff’s claims.
A. Justice Silver Has Ruled That Similarly-Situated Plaintiffs Should Be Granted
Permission to Proceed with CVA Claims Using a Pseudonym in New York County.
4. The Honorable George J. Silver, the Deputy Chief Administrative Judge for the
New York City courts designated to preside over all CVA pretrial proceedings across the courts
of New York City’s five boroughs, recently entered numerous Order and Decisions in CVA
matters granting the same relief requested here. See, e.g., ARK1 Doe v. Archdiocese of New York,
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et al., Index No. 950035/2019, attached as EXHIBIT A; ARK99 Doe v. The Boy Scouts of
America, et al., Index No. 950096/2019.
5. In the court’s Orders, Justice Silver correctly considered the compelling interest a
survivor of childhood sexual abuse asserts when requesting to proceed using a pseudonym:
The instant case involves alleged acts that will no doubt center on
information about plaintiff of a sensitive and highly personal nature.
The court recognizes that plaintiff, as the alleged victim of sexual
abuse, has undoubtedly suffered great emotional distress. Moreover,
this case has not been brought against a government entity, a factor
this court believes would militated in favor of the public’s right to
know. Instead, defendants are private entities and institutions, and
therefore are not prejudiced at this time. In contrast, revelation of
plaintiff’s name could unsettle plaintiff and perhaps deter plaintiff
from litigating this matter. Such an outcome would undoubtedly
undermine the very purpose for which the CVA was enacted. To
be sure, revelation of plaintiff’s identify would undermine the
litigation by denying a portion of the relief ultimately requested
in the action.
Id. at 2-3 (emphasis added).
6. Just as the court’s reasoning recognizes this compelling interest, the court also
recognized a lack of prejudice from the pseudonym to these private entity defendants and
institutions. Id. at 3.
7. The court also found that the public “has an interest in seeing this case determined
on its merit,” with anonymity of the plaintiff preserving “the integrity of that stated objective.” Id
at 3.
8. Moreover, the court expressly held that this same reasoning applies even when there
is no agreement among the parties to proceed using a pseudonym:
While the relief herein has been agreed to via stipulation, the court finds that a
decision reflecting its deliberation on the application herein is warranted.
Accordingly, the decision and order that follows reflects the court’s determination,
notwithstanding the parties’ agreement reflected in the attached stipulation.
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Id. at 1 (emphasis added).
9. Plaintiff will provide and confidentially communicate Plaintiff’s name and other
identifying information to Defendants in this matter. The relief requested is solely for public
anonymity and permission to use a pseudonym in the caption of court filings.
B. New York Case Law Supports Permitting Plaintiff to Proceed Using a Pseudonym.
10. “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
A.D.3d 487, 487 (1st Dep’t 2015) (internal quotation and citations omitted).
11. A party should be granted the right to proceed anonymously in a civil action “where
a substantial privacy interest is involved” concerning “highly sensitive matters” including “social
stigmatization,” Doe v. N.Y.U., 786 N.Y.S.2d 892, 903 (Sup. Ct. N.Y. Cnty. 2004), and where
identification of the plaintiff poses a risk of mental or physical harm, harassment, ridicule, or
personal embarrassment. Doe v. Szul Jewelry, No. 604277/07, 2008 N.Y. Misc. LEXIS 8733, at
*17 (Sup. Ct. N.Y. Cnty. May 13, 2008); see also Doe v. Spencer Cox Clinic, No. 158024/2017,
2018 N.Y. Misc. LEXIS 1165, at *2-4 (Sup. Ct. N.Y. Cnty. Apr. 6, 2018) (weighing factors
outlined in Szul and allowing use of a pseudonym in a civil action brought against private entities
because disclosure of health information could lead to “social stigmatization” and revealing
plaintiff’s identity would have a deterrent effect on his willingness to file his complaint with
appropriate factual specificity); see also Civil Rights Law § 50-b(1) (“The identity of any victim
of a sex offense…shall be confidential.”).1
1
Although, historically, courts have afforded protection to survivors of sexual offenses under Civil
Rights Law § 50-b(1) where there is an arrest and prosecution or an investigation, New York courts
have also applied this statute in civil cases, like this one, allowing a plaintiff to proceed under a
pseudonym. See Doe v. N.Y.U., 786 N.Y.S.2d 892, 904 (Sup. Ct. N.Y. Cnty. 2004) (granting
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12. As noted above, Plaintiff does not intend to conceal Plaintiff’s identity from
Defendants or this Court. Defendants will have the same ability to investigate and defend their
case as if Plaintiff’s true identity were on the caption of public filings, and, thus, Defendants will
face no prejudice in defending their case. See, e.g., E.K. v. New York Hosp. Cornell Med. Ctr.,
600 N.Y.S.2d 993, 994 (Sup. Ct. Orange Cnty. 1992) (allowing plaintiff to proceed using her
initials because her identity was previously disclosed to defendants); see also Doe v. Roman
Catholic Archdiocese of New York, 64 Misc. 3d 1220(A) (Sup. Ct., Westchester Co. 2019)
(disallowing use of a pseudonym, when, “[n]otably, to date, petitioner’s true identity has not been
disclosed to respondents or to the Court, and no representation was made that petitioner’s true
identity will be disclosed.”).
13. Granting Plaintiff the right to proceed under a pseudonym for public filings
obviates the need for Plaintiff to request a sealing of records. Therefore, use of a pseudonym strikes
the right balance between protecting Plaintiff from further harm, while maintaining the public’s
right to open judicial proceedings and access to court records. See, e.g., Anonymous v. Anonymous,
744 N.Y.S.2d 659, 660 (Sup. Ct. N.Y. Cnty. 2002); Doe v. Szul Jewelry, 2008 N.Y. Misc. LEXIS
8733, at *19; Doe v. Bellmore-Merrick Cent. High Sch. Dist., 770 N.Y.S.2d 847, 850 (Sup. Ct.
Nassau Cnty. 2003).
plaintiffs’ application for an order permitting plaintiffs to file an amended complaint to replace
their names with pseudonyms pursuant to Civil Rights Law § 50-b); see also Jane Doe 1 v. Beth
Israel Med. Ctr., No. 156127/2018, 2018 N.Y. Misc. LEXIS 3499, at *1, 2018 N.Y. Slip Op.
31964(U), 1 (Sup. Ct. N.Y. Cnty. Aug. 14, 2018) (granting plaintiff’s motion pursuant to § 50-b
to proceed under a pseudonym); Doe v. Bellmore-Merrick Cent. High Sch. Dist., 770 N.Y.S.2d
847, 848-49 (Sup. Ct. Nassau Cnty. 2003) (same).
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C. Plaintiff Will Suffer Psychological Trauma If Required to Publically Disclose
Plaintiff’s Identity.
14. Plaintiff has expressed their desire to keep their identity concealed from the public
to protect their privacy and to insulate them from social stigmatization.
15. As predicted by Judge Silver in the above-referenced Order and Decisions on this
issue, the loss of public anonymity would likely harm Plaintiff and cause Plaintiff great
psychological pain. See Affidavit of Childhood Sexual Abuse Psychologist Susan Phipps-Yonas,
Ph.D., attached as Exhibit B.
WHEREFORE, based upon the foregoing, it is respectfully requested that this Court issue
an Order for the following relief:
(i) Permitting Plaintiff to proceed in this action under the pseudonym “ARK393 DOE”
and with the caption “ARK393 DOE v. DIOCESE OF BROOKLYN a/k/a THE
ROMAN CATHOLIC DIOCESE OF BROOKLYN, NEW YORK; HOLY
FAMILY; and DOES 1-5 whose identities are unknown to Plaintiff”;
(ii) Directing that the parties, their attorneys, and agents refrain from publishing
Plaintiff’s true identity;
(iii) Directing that all papers filed in this action, and all judgments, orders, decisions,
notices to the Court and any other document relating to the action refer to Plaintiff
by the pseudonym “ARK393 DOE” and bear the caption “ARK393 DOE v.
DIOCESE OF BROOKLYN a/k/a THE ROMAN CATHOLIC DIOCESE OF
BROOKLYN, NEW YORK; HOLY FAMILY; and DOES 1-5 whose identities are
unknown to Plaintiff” and directing the County Clerk to enter and record all papers
in the action under the title “ARK393 DOE v. DIOCESE OF BROOKLYN a/k/a
THE ROMAN CATHOLIC DIOCESE OF BROOKLYN, NEW YORK; HOLY
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FAMILY; and DOES 1-5 whose identities are unknown to Plaintiff”; and
(iv) Granting such other and further relief as may be just and proper.
Dated: June 11, 2021
New York, New York
/s/ Jeffrey R. Anderson
Jeffrey R. Anderson
Trusha Goffe
Nahid A. Shaikh
JEFF ANDERSON & ASSOCIATES, P.A.
55 West 39th Street, 11th Floor
New York, NY 10018
Telephone: (646) 759-2551
Email: Jeff@AndersonAdvocates.com
Email: Trusha@AndersonAdvocates.com
Email: Nahid@AndersonAdvocates.com
Counsel for Plaintiff
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Preview
FILED: KINGS COUNTY CLERK 06/11/2021 10:23 AM INDEX NO. 514098/2021 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/11/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ARK393 DOE, Index No. __________________ Plaintiff, EX PARTE AFFIRMATION IN v. SUPPORT FOR AN ORDER TO SHOW CAUSE FOR LEAVE TO DIOCESE OF BROOKLYN a/k/a THE ROMAN FILE A CIVIL ACTION UNDER CATHOLIC DIOCESE OF BROOKLYN, NEW THE CHILD VICTIMS ACT USING YORK; HOLY FAMILY; and DOES 1-5 whose A PSEUDONYM identities are unknown to Plaintiff, Defendants. JEFFREY R. ANDERSON, an attorney duly admitted to practice law in the State of New York, hereby affirms under the penalty of perjury as follows: 1. I am an attorney with Jeff Anderson & Associates, representing the Plaintiff in this CPLR § 214-g Child Victims Act (“CVA”) action, and I am fully familiar with the facts and circumstances of this matter. 2. Pursuant to CPLR § 2217(b), no prior application has been made to this or any other Court for the relief requested herein. 3. The Defendants’ negligence caused the Plaintiff to sustain serious and permanent personal injuries as a result of being sexually abused as a child. Plaintiff’s Complaint, filed concurrently herewith, describes in detail the events surrounding Plaintiff’s claims. A. Justice Silver Has Ruled That Similarly-Situated Plaintiffs Should Be Granted Permission to Proceed with CVA Claims Using a Pseudonym in New York County. 4. The Honorable George J. Silver, the Deputy Chief Administrative Judge for the New York City courts designated to preside over all CVA pretrial proceedings across the courts of New York City’s five boroughs, recently entered numerous Order and Decisions in CVA matters granting the same relief requested here. See, e.g., ARK1 Doe v. Archdiocese of New York, 1 1 of 6 FILED: KINGS COUNTY CLERK 06/11/2021 10:23 AM INDEX NO. 514098/2021 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/11/2021 et al., Index No. 950035/2019, attached as EXHIBIT A; ARK99 Doe v. The Boy Scouts of America, et al., Index No. 950096/2019. 5. In the court’s Orders, Justice Silver correctly considered the compelling interest a survivor of childhood sexual abuse asserts when requesting to proceed using a pseudonym: The instant case involves alleged acts that will no doubt center on information about plaintiff of a sensitive and highly personal nature. The court recognizes that plaintiff, as the alleged victim of sexual abuse, has undoubtedly suffered great emotional distress. Moreover, this case has not been brought against a government entity, a factor this court believes would militated in favor of the public’s right to know. Instead, defendants are private entities and institutions, and therefore are not prejudiced at this time. In contrast, revelation of plaintiff’s name could unsettle plaintiff and perhaps deter plaintiff from litigating this matter. Such an outcome would undoubtedly undermine the very purpose for which the CVA was enacted. To be sure, revelation of plaintiff’s identify would undermine the litigation by denying a portion of the relief ultimately requested in the action. Id. at 2-3 (emphasis added). 6. Just as the court’s reasoning recognizes this compelling interest, the court also recognized a lack of prejudice from the pseudonym to these private entity defendants and institutions. Id. at 3. 7. The court also found that the public “has an interest in seeing this case determined on its merit,” with anonymity of the plaintiff preserving “the integrity of that stated objective.” Id at 3. 8. Moreover, the court expressly held that this same reasoning applies even when there is no agreement among the parties to proceed using a pseudonym: While the relief herein has been agreed to via stipulation, the court finds that a decision reflecting its deliberation on the application herein is warranted. Accordingly, the decision and order that follows reflects the court’s determination, notwithstanding the parties’ agreement reflected in the attached stipulation. 2 2 of 6 FILED: KINGS COUNTY CLERK 06/11/2021 10:23 AM INDEX NO. 514098/2021 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/11/2021 Id. at 1 (emphasis added). 9. Plaintiff will provide and confidentially communicate Plaintiff’s name and other identifying information to Defendants in this matter. The relief requested is solely for public anonymity and permission to use a pseudonym in the caption of court filings. B. New York Case Law Supports Permitting Plaintiff to Proceed Using a Pseudonym. 10. “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 A.D.3d 487, 487 (1st Dep’t 2015) (internal quotation and citations omitted). 11. A party should be granted the right to proceed anonymously in a civil action “where a substantial privacy interest is involved” concerning “highly sensitive matters” including “social stigmatization,” Doe v. N.Y.U., 786 N.Y.S.2d 892, 903 (Sup. Ct. N.Y. Cnty. 2004), and where identification of the plaintiff poses a risk of mental or physical harm, harassment, ridicule, or personal embarrassment. Doe v. Szul Jewelry, No. 604277/07, 2008 N.Y. Misc. LEXIS 8733, at *17 (Sup. Ct. N.Y. Cnty. May 13, 2008); see also Doe v. Spencer Cox Clinic, No. 158024/2017, 2018 N.Y. Misc. LEXIS 1165, at *2-4 (Sup. Ct. N.Y. Cnty. Apr. 6, 2018) (weighing factors outlined in Szul and allowing use of a pseudonym in a civil action brought against private entities because disclosure of health information could lead to “social stigmatization” and revealing plaintiff’s identity would have a deterrent effect on his willingness to file his complaint with appropriate factual specificity); see also Civil Rights Law § 50-b(1) (“The identity of any victim of a sex offense…shall be confidential.”).1 1 Although, historically, courts have afforded protection to survivors of sexual offenses under Civil Rights Law § 50-b(1) where there is an arrest and prosecution or an investigation, New York courts have also applied this statute in civil cases, like this one, allowing a plaintiff to proceed under a pseudonym. See Doe v. N.Y.U., 786 N.Y.S.2d 892, 904 (Sup. Ct. N.Y. Cnty. 2004) (granting 3 3 of 6 FILED: KINGS COUNTY CLERK 06/11/2021 10:23 AM INDEX NO. 514098/2021 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/11/2021 12. As noted above, Plaintiff does not intend to conceal Plaintiff’s identity from Defendants or this Court. Defendants will have the same ability to investigate and defend their case as if Plaintiff’s true identity were on the caption of public filings, and, thus, Defendants will face no prejudice in defending their case. See, e.g., E.K. v. New York Hosp. Cornell Med. Ctr., 600 N.Y.S.2d 993, 994 (Sup. Ct. Orange Cnty. 1992) (allowing plaintiff to proceed using her initials because her identity was previously disclosed to defendants); see also Doe v. Roman Catholic Archdiocese of New York, 64 Misc. 3d 1220(A) (Sup. Ct., Westchester Co. 2019) (disallowing use of a pseudonym, when, “[n]otably, to date, petitioner’s true identity has not been disclosed to respondents or to the Court, and no representation was made that petitioner’s true identity will be disclosed.”). 13. Granting Plaintiff the right to proceed under a pseudonym for public filings obviates the need for Plaintiff to request a sealing of records. Therefore, use of a pseudonym strikes the right balance between protecting Plaintiff from further harm, while maintaining the public’s right to open judicial proceedings and access to court records. See, e.g., Anonymous v. Anonymous, 744 N.Y.S.2d 659, 660 (Sup. Ct. N.Y. Cnty. 2002); Doe v. Szul Jewelry, 2008 N.Y. Misc. LEXIS 8733, at *19; Doe v. Bellmore-Merrick Cent. High Sch. Dist., 770 N.Y.S.2d 847, 850 (Sup. Ct. Nassau Cnty. 2003). plaintiffs’ application for an order permitting plaintiffs to file an amended complaint to replace their names with pseudonyms pursuant to Civil Rights Law § 50-b); see also Jane Doe 1 v. Beth Israel Med. Ctr., No. 156127/2018, 2018 N.Y. Misc. LEXIS 3499, at *1, 2018 N.Y. Slip Op. 31964(U), 1 (Sup. Ct. N.Y. Cnty. Aug. 14, 2018) (granting plaintiff’s motion pursuant to § 50-b to proceed under a pseudonym); Doe v. Bellmore-Merrick Cent. High Sch. Dist., 770 N.Y.S.2d 847, 848-49 (Sup. Ct. Nassau Cnty. 2003) (same). 4 4 of 6 FILED: KINGS COUNTY CLERK 06/11/2021 10:23 AM INDEX NO. 514098/2021 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/11/2021 C. Plaintiff Will Suffer Psychological Trauma If Required to Publically Disclose Plaintiff’s Identity. 14. Plaintiff has expressed their desire to keep their identity concealed from the public to protect their privacy and to insulate them from social stigmatization. 15. As predicted by Judge Silver in the above-referenced Order and Decisions on this issue, the loss of public anonymity would likely harm Plaintiff and cause Plaintiff great psychological pain. See Affidavit of Childhood Sexual Abuse Psychologist Susan Phipps-Yonas, Ph.D., attached as Exhibit B. WHEREFORE, based upon the foregoing, it is respectfully requested that this Court issue an Order for the following relief: (i) Permitting Plaintiff to proceed in this action under the pseudonym “ARK393 DOE” and with the caption “ARK393 DOE v. DIOCESE OF BROOKLYN a/k/a THE ROMAN CATHOLIC DIOCESE OF BROOKLYN, NEW YORK; HOLY FAMILY; and DOES 1-5 whose identities are unknown to Plaintiff”; (ii) Directing that the parties, their attorneys, and agents refrain from publishing Plaintiff’s true identity; (iii) Directing that all papers filed in this action, and all judgments, orders, decisions, notices to the Court and any other document relating to the action refer to Plaintiff by the pseudonym “ARK393 DOE” and bear the caption “ARK393 DOE v. DIOCESE OF BROOKLYN a/k/a THE ROMAN CATHOLIC DIOCESE OF BROOKLYN, NEW YORK; HOLY FAMILY; and DOES 1-5 whose identities are unknown to Plaintiff” and directing the County Clerk to enter and record all papers in the action under the title “ARK393 DOE v. DIOCESE OF BROOKLYN a/k/a THE ROMAN CATHOLIC DIOCESE OF BROOKLYN, NEW YORK; HOLY 5 5 of 6 FILED: KINGS COUNTY CLERK 06/11/2021 10:23 AM INDEX NO. 514098/2021 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/11/2021 FAMILY; and DOES 1-5 whose identities are unknown to Plaintiff”; and (iv) Granting such other and further relief as may be just and proper. Dated: June 11, 2021 New York, New York /s/ Jeffrey R. Anderson Jeffrey R. Anderson Trusha Goffe Nahid A. Shaikh JEFF ANDERSON & ASSOCIATES, P.A. 55 West 39th Street, 11th Floor New York, NY 10018 Telephone: (646) 759-2551 Email: Jeff@AndersonAdvocates.com Email: Trusha@AndersonAdvocates.com Email: Nahid@AndersonAdvocates.com Counsel for Plaintiff 6 6 of 6