In what circumstances may a plaintiff proceed anonymously by filing a complaint under a pseudonym?

Several New York courts "have addressed the legislature's intent in enacting the CVA [Child Victims Act] 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’ ... [and] ‘left it to the courts to assess each individual case’ " (PB–7 Doe v. Amherst Cent. Sch. Dist., 196 A.D.3d 9, 11–12, 148 N.Y.S.3d 305 [4th Dept. 2021], quoting Doe v. MacFarland, 66 Misc.3d 604, 614, 117 N.Y.S.3d 476 [Sup. Ct., Rockland County 2019]). This Court has held that permission to use a pseudonym will not be granted automatically and has noted that the motion 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 A.D.3d 356, 361, 814 N.Y.S.2d 21 [1st Dept. 2006] [internal quotation marks omitted]; see Applehead Pictures LLC v. Perelman, 80 A.D.3d 181, 192, 913 N.Y.S.2d 165 [1st Dept. 2010] ). In determining whether to grant a plaintiff's request to proceed anonymously, the motion court must " ‘use its discretion in

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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]; see also PB–7 Doe, 196 A.D.3d at 12–13, 148 N.Y.S.3d 305 ). A plaintiff seeking permission to proceed anonymously by employing a pseudonym must provide facts specific to the plaintiff that will allow the motion court to exercise its discretion in an informed manner (see Doe v. Yeshiva Univ., 195 A.D.3d 565, 146 N.Y.S.3d 482 [1st Dept. 2021]).

Here, plaintiffs’ motion to allow 33 unnamed plaintiffs to proceed anonymously should have been denied because plaintiffs failed to submit sufficient evidence to support the relief requested. Plaintiffs only submitted a short attorney affirmation, which merely repeated the relief requested in the order to show cause and made a single vague statement that plaintiffs might suffer further mental harm should their identities be revealed. Plaintiffs failed to provide any specific evidence as to why each unnamed plaintiff should be entitled to proceed anonymously (see Doe v. Yeshiva Univ., 195 A.D.3d 565, 146 N.Y.S.3d 482 ).

Preliminarily, this Court must address plaintiffs' unilateral adoption of a caption that does not state their names. "In a summons, a complaint or a judgment the title shall include the names of all parties" (CPLR 2101[c] ). Although the Second Department does not appear to have addressed the issue, the First Department has reiterated that "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" (Applehead Pictures LLC v. Perelman, 80 A.D.3d 181, 192, 913 N.Y.S.2d 165 [1st Dept. 2010], quoting Anonymous v. Anonymous, 27 A.D.3d 356, 361, 814 N.Y.S.2d 21 [1st Dept. 2006] ). If a litigant seeks to employ any means of identification other than his or her name, such relief may be sought by order to show cause when commencing an action (see Matter of K.R. v. Clerk of New York County, 2017 N.Y. Slip Op. 31778[U], 2017 WL 3620582, 2017 N.Y. Misc. LEXIS 3193 [Sup. Ct. N.Y. County, 2017] ["by

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simply denominating himself as ‘K.R.’ in the caption without court approval, the petitioner did not follow the proper procedure for using an anonymous caption"] ).

"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, 998 N.Y.S.2d 619 [1st Dept. 2015] [internal quotation marks and citations omitted] ). An action may not properly be brought pseudonymously if the plaintiffs have not "alleged 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] ).

Some trial-level courts of this State have considered the showing necessary for a pseudonymous caption. "[C]ourts have discretion in determining the issue and do so by balancing the privacy interests of the party seeking anonymity against the general presumption favoring open trials and the risk of prejudice to the opposing party" (Doe v. Szul Jewelry, Inc., 2008 NY Slip Op. 31382(U), 2008 NY Misc. LEXIS 8733, *15 [Sup. Ct., NY County 2008]). "Embarrassment or economic harm to the plaintiffs is insufficient, but factors to consider as to whether plaintiffs' situation is compelling, involving highly sensitive matters including social stigmatization, or ‘where the injury litigated against would occur as a result of the disclosure of the plaintiff's identity" (Doe v. New York Univ., 6 Misc. 3d 866, 879, 786 N.Y.S.2d 892 [Sup. Ct. N.Y. County 2004] [citation and internal quotation marks omitted]).

Plaintiffs suggest that the professional embarrassment and injury to their reputation warrants the pseudonymous caption. However, notwithstanding their desire to preserve their privacy, and to prevent further dissemination of defendant's criticisms and claims against them, this matter does not involve the type of truly sensitive and highly personal claims that create 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, 24 A.D.3d at 215, 806 N.Y.S.2d 38).

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It has been suggested that "allowing plaintiff to proceed under a pseudonym does not significantly hamper the public's interest in open trials because the public will still have access to the court records for [the] case" (

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Stevens v. Brown, 2012 N.Y. Slip Op. 31823(U), 2012 WL 2951181, 2012 N.Y. Misc. LEXIS 3340, *13 [Sup. Ct. N.Y. County 2012], citing Anonymous v. Anonymous, 191 Misc. 2d 707, 708, 744 N.Y.S.2d 659 [Sup. Ct. N.Y. County 2002] ). Nevertheless, the failure to satisfy the controlling rule requiring "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, 24 A.D.3d at 215, 806 N.Y.S.2d 38 ) precludes a pseudonymous caption here.

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 AD3d 487, citing Stevens v. Brown , 2012 NY Misc LEXIS 3340, 2012 NY Slip Op. 31823[U], *8–9 [Sup Ct, NY County 2012], citing Doe v. Szul Jewelry, Inc., 2008 NY Misc LEXIS 8733, 2008 NY Slip Op. 31382[U], *11 [Sup Ct, NY County 2008] ). Thus, the court considers the following factors:

[1] Whether the justification asserted ... is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of a sensitive and highly personal nature; [2] whether the party seeking anonymity has an illegitimate ulterior motive; [3] the extent to which the identity of the litigant has been kept confidential; [4] whether identification poses a risk of mental or physical harm, harassment, ridicule, or personal embarrassment; [5] whether the case involves information of the utmost intimacy; [6] whether the action is against a governmental or private entity; [7] the magnitude of the public interest in maintaining confidentiality or knowing the party's identity; [8] whether revealing the identity of the party will dissuade the party from bringing the lawsuit; [9] whether the opposition to anonymity has an illegitimate basis; [and] [10] [ ] whether the other side will be prejudiced by use of the pseudonym.

(Szul, id. at 16–17).

This court's weighing of these factors in this case supports a determination allowing plaintiff's use of a pseudonym. This action is centered on a claim of improper disclosure of patient health information allegedly entitled to confidentiality under state and federal law—and thus involves a matter of a sensitive and highly personal nature. The disclosure of this particular type of patient health information could lead to social stigmatization—and, as such, plaintiff's identification would pose a substantial risk of undue personal embarrassment. The crux of the parties' dispute, in this court's view, relates to the improper disclosure of patient health information, and, so, necessarily involves information of the utmost intimacy. The action here, significantly, involves a private individual and three private healthcare entities, and does not relate to the conduct of governmental agencies or officers. The public interest in protecting patient health information, moreover, is manifest, in light of state and federal law on the subject. Revealing plaintiff's identity would, in this court's estimation, have a deterrent effect on his willingness to file his complaint with appropriate factual specificity, or to continue this action through motion practice, conferencing, and trial. Notably, defendants have demonstrated no prejudice to them as result of any use by plaintiff of a pseudonym.

Defendants, in opposition, rightly note that no social stigma should attach to any disclosure of plaintiff's HIV status, but that hope does not reflect the actual reality that some with such status face, as a result of prejudice and unenlightened attitudes by many in the community. The parties, at oral argument, disputed whether plaintiff or his counsel may have disclosed plaintiff's identity in the media in connection with this action, but no factual documentation supporting such a claim was timely submitted in opposition to the motion. Finally, the court has been able to divine no illegitimate ulterior motive disguised in plaintiff's request to proceed anonymously.

Following a comprehensive balancing of plaintiff's privacy interests against the presumption in favor of public disclosure and any prejudice to defendant, the court providently exercised its discretion in granting plaintiff's motion to proceed anonymously (see Anonymous v. Lerner, 124 A.D.3d 487, 998 N.Y.S.2d 619 [1st Dept. 2015]). The court credited plaintiff's assertions that he feared not only embarrassment and economic harm from the public disclosure of his identity but also social stigmatization, professional repercussions, and social isolation from his peers and colleagues in the legal profession – fears that the court's decision shows were elaborated upon by plaintiff's counsel during oral argument and that defendants have offered no reason to question. Defendants argue that disclosure will have no chilling effect since plaintiff has already commenced suit, but this argument fails to account for the real possibility that plaintiff would be dissuaded from pursuing the action further and for the inhibiting effect it could have on other potential plaintiffs (see e.g. John Doe No. 4 v. Rockefeller Univ., 2019 N.Y. Slip Op. 33725[U], *2, 2019 WL 6354255 [Sup. Ct., N.Y. County Nov. 22, 2019]).

The court observed that plaintiff's proceeding anonymously would better serve the public's right to know than, for instance, having the records sealed. Defendants

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have not explained why the public must know plaintiff's identity in addition to all other aspects of the case. Nor have defendants shown that they will suffer any prejudice, as plaintiff has agreed to divulge his identity to them and to the court (cf. Doe v. Roman Catholic Archdiocese of N.Y., 64 Misc.3d 1220[A], 2019 N.Y. Slip Op. 51216[U], *5, 2019 WL 3484392 [Sup. Ct., Westchester County, July 31, 2019] [petition to proceed anonymously even vis-a`-vis court and respondents denied on the ground of prejudice to respondents]).

We reject defendants’ contention that plaintiff's motion should be denied because it was supported solely by an attorney affirmation. In GCVAWCG–Doe v. Roman Catholic Archdiocese of N.Y., 69 Misc.3d 648, 650, 132 N.Y.S.3d 557 (Sup. Ct., Westchester County 2020), on which defendants rely, the court referred to "scores of pseudonym applications, many with no affidavit of the plaintiff" or an affidavit "without facts specific to the plaintiff." There is no lack of facts specific to plaintiff in this case. Nor was there anything "pro forma" about the court's grant of his motion.

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.