Doe v. Roman Catholic Archdiocese of N.Y., 64 Misc.3d 1220(A), 117 N.Y.S.3d 468 (Table) (N.Y. Sup. Ct. 2019)

for Petitioner: Barbara Hart, Esq., Lowey Dannenberg, P.C., 44 South Broadway, Suite 1100, White Plains, NY 10601-2301, (914) 997-0500

for Respondent Roman Catholic Archdiocese: Joanne Filiberti and Peter James Johnson, Jr., Esqs., Leahey and Johnson, 120 Wall Street, Suite 2220, New York, NY 10005, (212) 269-7308

for Respondent Daniel Calabrese: Benjamin Allee, Esq., Yankwitt LLP, 140 Grand Street, Suite 705, White Plains, NY 10601 (914) 686-1500

Terry Jane Ruderman, J.

Background

Petitioner alleges that he was sexually molested by Calabrese in 1983 or 1984 when petitioner was approximately thirteen years old. The factual claims made in the petition include the following: Calabrese was a seminarian at respondent St. Joseph's Seminary, who was ordained as a priest of respondent Roman Catholic Archdiocese of New York (the "Archdiocese") in 1987, and was subsequently laicized in 2005. On the day of the alleged incident, Calabrese had invited the petitioner to the Seminary to use its gym and swimming pool. After swimming in the pool, Calabrese suggested that the petitioner take a shower in the men's locker room. When the petitioner and Calabrese entered the shower area of the locker room, an unidentified male (hereinafter referred to as "John Doe Respondent No.1") was already in the shower area. Calabrese and John Doe Respondent #1 proceeded to sexually molest the petitioner. Petitioner contends that the incident was planned by Calabrese and John Doe #1, and occurred with the participation and/or knowledge of the other unidentified John Doe Respondents, while they were in respondents' employ, at respondents' facilities, and under respondents' auspices.

The Child Victims Act

On February 14, 2019, New York State enacted the Child Victims Act (L. 2019 c.11) ("CVA") which, inter alia, (1) extended the statute of limitations on criminal cases involving certain sex offenses against children under 18 (see CPL 30.10 [f] ); (2) extended the time which civil actions based upon such criminal conduct may be brought until the child victim reaches 55 years old (see CPLR 208 [b) ); and (3) opened a one-year window reviving civil actions for which the statute of limitations has already run (even in cases that were litigated and dismissed on limitations grounds), commencing six months after the effective date of the measure, i.e. August 14, 2019 (see CPLR 214-g ).

The Present Application

The first branch of the petition seeks permission to proceed as John Doe and for related relief. Petitioner also seeks pre-action discovery, including (a) Calabrese's deposition to determine the identities of the other persons involved in the alleged incident; (b) the identity or identities, including contact information, for all of Calabrese's supervisors, faculty, classmates, and co-workers at the Archdiocese and at respondent St. Joseph's Seminary a/k/a St. Joseph's Seminary and College a/k/a St. John Neumann Seminary College at St. Joseph's Seminary a/k/a Dunwoodie (the "Seminary"); and (c) all relevant documents in respondents' custody, possession, or control concerning any alleged molestation by Calabrese and/or John Doe Respondents 1 through 9; and documents related to any investigations and/or complaints concerning molestation allegations at the Seminary. Additionally, petitioner asks to have the Court direct respondents to preserve and log all relevant documents in their custody, possession, or control, in both physical and electronic formats; to prepare a report on the preservation and logging of the aforementioned documents and records; to appoint a neutral special master to oversee and ensure compliance with the preservation and logging of the aforementioned documents and records, and to identify and preserve the names of any living witnesses at the Seminary and the Archdiocese who may have relevant information to this case.

The Parties' Contentions

The first branch of petitioner's application, seeking permission to proceed under the pseudonym John Doe, asserts that petitioner's three children, who are in college, high school and middle school, respectively, live in the community. Petitioner states that although his children know about the alleged incident, he would prefer they not be exposed to any potential embarrassment which may occur as the result of discussion of this matter at their schools. Petitioner also maintains that this case is likely to draw attention from the media, and if petitioner is not allowed to proceed under a pseudonym the media attention could prevent other victims from coming forward.

Turning to petitioner's application for pre-action discovery, petitioner argues that he has put forth meritorious causes of action against respondents. He states that he intends to file claims under the CVA against the respondents including sexual abuse, assault, battery, fraud, false imprisonment, negligent hiring, negligent supervision and retention, vicarious liability, gross negligence, and punitive damages. He contends that the information he seeks is material and necessary to aid in the prosecution of his forthcoming claims, to frame his pleadings, to ensure compliance with the CVA statute of limitations period, and to preserve information.

Petitioner asserts that there are other witnesses who are material to petitioner's claims who have become, or are in significant danger of becoming, unavailable, due to, inter alia, advancing age. He contends that the identity of these witnesses is in the exclusive custody and control of the respondents, and argues that pre-action discovery is appropriate in this instance since the CVA look-back provision only provides for a one-year extension of the statute of limitations. Petitioner maintains that he will be significantly prejudiced if he is required to wait until after filing his complaint to seek this discovery.

Additionally, petitioner asks the Court to direct respondents to preserve and log all relevant documents in their custody, possession, and control concerning any alleged misconduct by Calabrese. Petitioner requests that the Court appoint a special master to oversee the document logging and preservation of the documents and the creation of a report concerning that document logging and preservation.

In opposition, Calabrese first argues that the court is without jurisdiction over him as he does not live or transact business within New York State. Citing Matter of Fidelity National Title Ins. Co. (34 Misc 3d 508 [Sup Ct, NY County 2011] ), Calabrese contends that CPLR 302 is inapplicable to a respondent in a special proceeding. Additionally, Calabrese maintains that petitioner has failed to demonstrate a basis for pre-action discovery.

The Church Respondents contend that the application should be denied as premature and unnecessary based on petitioner's failure to meet his burden of proof, or alternatively, that determination of the application be held in abeyance until the rules regarding the handling of actions brought pursuant to CVA have been implemented. The Church Respondents argue that recent amendments to the Judiciary Law, require the Chief Administrator of the Courts to promulgate rules regarding the handling of cases brought pursuant to the CVA (see Judiciary Law 219-d ), and that training is to be provided to judges with respect to crimes involving sexual assault (see Judiciary Law 219-c ). The Church Respondents argue that petitioner is forcing the Court to adjudicate discovery issues before the appropriate rules and training are in place.¹

The Church Respondents also contend that petitioner has failed to demonstrate grounds warranting pre-action discovery. They argue that petitioner has failed to allege a meritorious cause of action against them. They claim that Calabrese is not under their control, that petitioner has failed to allege a relationship between the Church Respondents and the John Doe Respondents, and that petitioner has failed to allege that either the Seminary or the Archdiocese knew, or should have known, of any propensities by Calabrese to engage in the alleged act. They further argue that the petition is unverified and that petitioner has failed to provide an affidavit in support of the petition by anyone with first-hand knowledge of the alleged incident.

The Church Respondents argue that petitioner has failed to demonstrate that any of the sought discovery is material or necessary to frame a complaint. They further maintain that the names of Calabrese's supervisors, faculty, classmates, and co-workers are not necessary to commence the action because petitioner may commence an action against the present respondents and seek the names of any additional defendants or witnesses in the ordinary course of discovery.

Additionally, the Archdiocese affirms that it is already retaining and preserving records pursuant to a litigation hold and a subpoena served on the Archdiocese by the New York State Attorney General.

Analysis

As a preliminary matter, this Court finds that it may assert jurisdiction over Calabrese through the long-arm jurisdiction statute of this state (see CPLR 302 [a][2] ). Petitioner alleges that he was sexually molested by Calabrese in New York State. The fact that Calabrese no longer resides within the confines of the state does not defeat its jurisdiction over him. The holding of Matter of Fidelity National Title Ins. Co. , is inapposite. The Court in Fidelity found that it lacked jurisdiction over the proposed deponent because the petitioner there had not asserted a cause of action against him. That case is readily distinguishable from the present petition which alleges that Calabrese was one of the perpetrators of the abuse allegedly experienced by the petitioner.

Anonymous Caption

Petitioner initially seeks to proceed under the pseudonym "John Doe" to avoid potential embarrassment to his three children, who although aware of the alleged incident may, according to petitioner, be subjected to embarrassment should the matter be discussed in public. Although none of the respondents opposed this application in their papers, they did object at oral argument to petitioner proceeding under a pseudonym. Respondents argue that they have a right to know petitioner's identity and that it would be impossible to defend against petitioner's allegations without that knowledge.

A "trial court should not pro forma approve an anonymous caption, but should exercise its discretion sparingly and then, only when unusual circumstances necessitate it" ( Applehead Pictures LLC v. Perelman , 80 AD3d 181, 192 [1st Dept 2010] [internal quotation marks and citations omitted] ). "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 prejudice to defendant" ( Anonymous v. Lerner, 124 AD3d 487, 487 [1st Dept 2015] [internal quotation marks and citations omitted]; see Doe v. Szul Jewelry, Inc. , 2008 NY Slip Op 31382 [U] [Sup Ct, NY County 2008]. Claims of public humiliation and embarrassment are not sufficient grounds for allowing a plaintiff to proceed anonymously ( Anonymous v. Lerner , 124 AD3d at 487 ). Other factors considered by the courts include whether the plaintiff's situation is compelling, involves highly sensitive matters, including social stigmatization, or involves real danger of physical harm ( Doe v. New York Univ. , 6 Misc 3d 866 [Sup Ct, NY County 2004] ).

"It is elementary that the primary function of a pleading is to apprise an adverse party of the pleader's claim ... Absent such notice, a defendant is prejudiced by its inability to prepare a defense to the plaintiff's allegations" ( Cole v. Mandell Food Stores, Inc. , 93 NY2d 34, 40 [1999] [internal quotation marks and citations omitted] ). "The rationale for the disclosure of a plaintiff's name in a complaint or petition is grounded in the basic due process rights of notice and an opportunity to be heard" ( 3B Carmody-Wait 2d § 28:6 ) [Note: online treatise]. Moreover, CPLR 2101 requires that the caption of a summons and complaint include the names of all parties (see 22 NYCRR § 202.5 [d] [1] [ii]; see also Coe v. LaGuardia Airport Hotel Assoc. , 134 Misc 2d 579 [Sup Ct, NY County 1987] ; E.K. v. New York Hosp. Cornell Med. Ctr. , 158 Misc 2d 334 [Sup Ct, Orange County 1992] [plaintiff allowed to proceed using her initials because her identity had previously been disclosed to defendants] ).

In the present case, petitioner contends, respondents should be able to determine petitioner's identity based upon allegations of a past relationship between Calabrese's sister and petitioner's cousin. However, this assertion is made in a petition signed by counsel, offered without the benefit of substantiation by an individual with first-hand knowledge. Notably, 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. Even assuming arguendo that Calabrese may be able to guess petitioner's true identity, as petitioner suggests, the Church Respondents, who presumably are not privy to information concerning the alleged relationship between petitioner's cousin and Calabrese's sister, would remain disadvantaged. To allow petitioner to proceed without respondents ever knowing his true identity would be highly prejudicial to respondents' ability to defend themselves against these claims as they would be unable to connect their acts to any specific persons (see Coe v. LaGuardia Airport Hotel Assoc. , 134 Misc 2d at 581 ). Notably, all of the cases relied upon by petitioner in support of proceeding pseudonymously involve situations where the defendants knew plaintiff's true identity and/or the plaintiff had consented to the use of his/her legal name for discovery purposes.

Based on the foregoing discussion, the Court finds that petitioner has failed to make the necessary showing in support of his application to proceed under an anonymous caption.

Pre-Action Disclosure

CPLR 3102 (c) provides in part: "Before an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order." Although this section may be used to preserve evidence or to identify potential defendants, it "may not be used to ascertain whether a prospective plaintiff has a cause of action worth pursuing" ( Uddin v. New York City Transit Authority , 27 AD3d 265, 266 [1st Dept 2006] ). A petition under this section should be granted only when the petitioner has demonstrated a meritorious cause of action ( Holzman v. Manhattan and Bronx Surface Transit Operating Authority , 271 AD2d 346 [1st Dept 2000] ). Affidavits submitted in this regard must be by someone with first-hand knowledge of the underlying facts ( Nicol v. Town of Rotterdam , 134 AD2d 754, 755 [3d Dept 1987] ). A petition for pre-action disclosure based solely upon the assertions of the petitioner's attorney who did not have first-hand knowledge of the underlying facts is insufficient and should be denied (id. ), since an affirmation of an attorney which is not based upon personal knowledge of the facts is of no probative value or evidentiary significance ( Onewest Bank, FSB v. Michel , 143 AD3d 869 [2d Dept 2016] ).

The petition herein lacks support by a person with first-hand knowledge of the alleged incident, since the only factual assertions provided are those of petitioner's counsel who does not demonstrate first-hand knowledge of the alleged incident. Petitioner fails to include his own affidavit in support of his petition. Although petitioner also seeks to proceed under a pseudonym, he could have provided such an affidavit to the Court for in camera review. Accordingly, petitioner has failed to demonstrate the requisite showing of a meritorious cause of action to justify pre-action discovery.

Even if petitioner had demonstrated a meritorious cause of action, it appears, based upon the papers filed in support of this petition, that petitioner has sufficient information to frame a complaint, and consequently, "the pre-action disclosure he seeks is unavailable to him" ( Ryan v. Marsh & McLennan Int'l, Inc. , 70 AD2d 567, 567 [1st Dept 1979] ; see Matter of Rann v. Metropolitan Transp. Auth. , 22 AD3d 586 [2d Dept 2005] ; Holzman v. Manhattan & Bronx Surface Tr. Operating Auth. , 271 AD2d 346, 347 [1st Dept 2000] ). This Court finds that petitioner has failed to demonstrate a basis for granting pre-action discovery with respect to the names of other defendants or witnesses who may have information relevant to petitioner's allegations. Nor has petitioner demonstrated a basis for pre-action discovery of the names of Calabrese's co-workers or supervisors. To the extent that the petition seeks this information in order to identify additional defendants or witnesses, that information can be obtained through discovery once an action has been commenced. Moreover, contrary to petitioner's assertions, he has failed to demonstrate that he will be prejudiced by waiting to conduct this discovery until he files his complaint.

As for the portion of the petition which seeks to preserve certain documents, petitioner has presented only unsubstantiated assertions that this information is in jeopardy of destruction. "[M]ere conclusory statements of suspicion and conjecture are insufficient" to grant disclosure under CPLR 3102 (c) (Matter of Gleich , 111 AD2d 130, 131 [1st Dept 1985] ). Moreover, the Church Respondents have averred that they are currently preserving all relevant documents and information in their custody and control. Therefore, there is nothing before the Court to indicate that the requested pre-action disclosure is necessary to preserve information (see Zeigler v. City of New York , 65 AD3d 1159 [2d Dept 2009] ).

Accordingly, petitioner's application is denied in its entirety.

All arguments raised on this motion and evidence submitted by the parties in connection thereto have been considered by this court, regardless of whether they are specifically discussed herein.

In light of the foregoing, it is:

ORDERED that petitioner's application is denied in its entirety; and it is further

ORDERED that any applications not explicitly decided are herewith denied; and it is further

ORDERED that petitioner shall serve a copy of this Decision and Order with notice of entry within three (3) days thereof.

The foregoing constitutes the Decision and Order of this Court.