Anonymous v. Lerner

Anonymous v Lerner (2015 NY Slip Op 00469)

Anonymous v Lerner

2015 NY Slip Op 00469

Decided on January 20, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 20, 2015
Tom, J.P., Saxe, Feinman, Clark, Kapnick, JJ.

13974 157590/13

[*1] Anonymous, Plaintiff-Appellant,

v

William Lerner, Defendant-Respondent.

Levine & Blit, PLLC, New York (Matthew J. Blit of counsel), for appellant.

Cohen Clair Lans Greifer & Thorpe LLP, New York (Robert S. Cohen of counsel), for respondent.

Order, Supreme Court, New York County (Debra A. James, J.), entered March 12, 2014, which granted defendant's motion to compel plaintiff to be named in the action, unanimously affirmed, without costs.

While plaintiff's allegations concerning the negligent and fraudulent transmission of genital herpes, a sexually transmitted disease, implicates a substantial privacy right (cf. "J. Doe No. 1" v CBS Broadcasting, Inc., 24 AD3d 215 [1st Dept 2005]), "the trial court 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 AD3d 356, 361 [1st Dept 2006] [citation omitted]).

The determination of whether to allow a plaintiff to proceed anonymously requires the court to "use its discretion in balancing plaintiffs privacy interest against the presumption in favor of open trials and against any potential prejudice to defendant" (Stevens v Brown, 2012 NY Slip Op 31823[U], **9 [Sup Ct, NY County 2012], citing Doe v Szul Jewelry, Inc., 2008 NY Slip Op 31382[U], 15 [Sup Ct, NY County May 13, 2008]).

The trial court did not improvidently exercise its discretion in finding that plaintiff's privacy concerns were outweighed by, inter alia, the fact that the action was brought against an individual defendant, relates to his private life and reputation, and puts plaintiff's credibility at issue (see Doe v Shakur, 164 FRD 359, 361 at n 1 [SD NY 1996]; cf. Doe v Szul Jewelry, Inc., 2008 NY Slip Op 31382[U][Sup Ct, NY County 2008]), and undermined by her reporting her story to the media before serving defendant with process (see Doe v Kidd, 19 Misc 3d 782, 789 [Sup Ct, NY County 2008]). "[C]laims of public humiliation and embarrassment . . . are not [*2]sufficient grounds for allowing a plaintiff . . . to proceed anonymously" (Doe v Shakur, 164 FRD at 362; Doe v New York Univ., 6 Misc 3d 866, 879 [Sup Ct, NY County 2004]; cf. Doe v Kolko, 242 FRD 193 [ED NY 2006]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 20, 2015

CLERK