HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/FLYNN.ASC

Text File | 1993-01-14 | 7KB | 138 lines

/* This case is reported in 553 N.Y.S.2d 288.  This matter
considers the question of closing an HIV case in its entirety to
the public, and finds that this is inappropriate. */

Thomas FLYNN, Plaintiff,

v.

John DOE As Personal Representative of the Estate of Bob Doe,
Deceased, and as Trustee Under Trust Agreement dated on or about
November 23, 1984 and XYZ Inc., Defendants.

Supreme Court, New York County,

March 19, 1990.

BEVERLY S. COHEN, Justice:

The individual defendant in his representative and fiduciary
capacity, moves pursuant to CPLR 3103 for an order granting (1)
the amendment of the caption substituting pseudonyms for true
names; (2) anonymity of defendants in perpetuity; (3) non
disclosure of the identities of defendants and the medical
condition of decedent to any person other than the parties and
attorneys except by further order of the court; (4) exclusion of
any persons except parties, counsel and designated court
personnel from all hearings, subject to the direction of this
court; and (5) sealing of the file in the Office of the County
Clerk.

An ex parte temporary restraining order was granted to the movant
enjoining plaintiff from disclosing defendants' identities to
anyone except parties, attorneys or their designees, the sealing
of the entire County Clerk's file, and amending the caption with
pseudonyms for defendants for the pendency of the hearing and
determination of the within motion.

The underlying complaint sets forth, inter alia, causes of action
in fraud and misrepresentation in the concealment by the deceased
defendant of his AIDS illness from plaintiff who engaged in
unprotected sexual relations with the decedent, and, against the
decedent's estate and his defendant company, for wrongful
termination of employment.

[1, 2]  Movant cites Article 31 of the CPLR as providing
authority to the court for the grant of his motion.  This article
concerns disclosure in civil actions. CPLR 3103(a) permits a
court to issue a protective order concerning any disclosure
device.  It is not, as defendant urges, statutory authority for
the extraordinary relief sought by this motion. Indeed the movant
has not indicated any case authority under CPLR 3103(a) for the
relief sought and relies chiefly on the recently enacted Public
Health Law ("PHL") Article 27 pertaining to HIV and AIDS related
information.

[3]  At the outset the principle must be stated that all court
proceedings are presumptively open to the public, where the
people and media have a right to be present, and where their
presence historically has been thought to enhance the integrity
and quality of the proceedings (see, Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 575-578, 100 S.Ct. 2814, 2826-28, 65
L.Ed.2d 973).

New York State has adopted this principle by statute in Section 4
of the Judiciary Law which provides that "the sittings of every
court within this state shall be public, and every citizen may
freely attend the same."  The Court of Appeals has long held that
this right may be asserted by the public and the press in civil
and criminal cases (cf, Lee v. Brooklyn Union Pub. Co., 209 N.Y.
245, 248-249,103 N.E. 155; Matter of Gannett Co. v. DePasquale,
43 N.Y.2d 370, 401 N.Y.S.2d 756, 372 N.E.2d 544; Mtr. of
Westchester Rockland Newspapers v. Leggett, 48 N.Y.2d 430, 437,
423 N.Y.S.2d 630, 399 N.E.2d 518).

The movant representative nevertheless argues for anonymity and
pseudonyms for defendants referring to PHL Article 27-F. PHL Sect
2785(2) permits a court to grant disclosure of confidential HIV
related information only upon a proper showing. Sect 2785(3)
directs the court, when authorizing such information, to seal all
legal papers submitted as part of the application and decision
thereon.

Defendants' reliance on Article 27-F of PHL is misguided.  The
legislature's purpose in

"providing additional protection of the confidentiality of HIV
related information is to encourage the expansion of voluntary
confidential testing for the human immunodeficiency virus (HIV)
so that the individuals may come forward, learn their health
status, make decisions regarding the appropriate treatment, and
change the behavior that puts them and others at risk of
infection." (McKinneys Cons.Laws of NY, Book 44, PHL 2750 pocket
part, at 38)

This purpose of encouraging voluntary testing and treatment is
not as compelling when the party who had AIDS is deceased,
particularly when balanced against the strongly revered, and
protected public policy of open court proceedings.  Additionally,
the law does not authorize a living defendant who has AIDS to
remove his true name from the caption of a suit alleging fraud
related to a sexual transmission. The statute does not augment a
constitutional right to privacy so as to bar the public from
knowledge of the action. The Estate representative of a defendant
who died of the disease has no greater right under the statute to
conceal the true name of the decedent, than would a living
defendant, nor does the statute protect his family or family
business.

The presumption favoring open trials and free flow of information
derives from our belief as a society that those events will
result in a populace most able to make the decisions required of
citizens in a democracy.

This principle applies especially to information about the AIDS
plague.  Except where necessary to protect the privacy of AIDS
patients, information about all manifestations of the problem
should be widely disseminated so as to increase public awareness.
The court has not been persuaded that secrecy and silence will ad
vance any legitimate interest of a party to this lawsuit or that
the customary openness of court proceedings will prejudice any
rights of decedent or the defendant corporation.

Disclosure of confidential HIV-related information will be
governed by Article 27-F of the Public Health Law.

Accordingly, the defendants' motion is denied except that
defendants are granted a continuation of the ex parte relief main
taining the anonymity of the defendants and sealing the entire
County Clerk's file for a period of ten (10) days from service of
a copy of this order with notice of entry, to allow the
defendants the opportunity to apply to the Appellate Division for
a stay pending appeal.  Any confidential medical information
which may become part of the record during the pendency of this
action will be sealed pursuant to PHL Article 27-F.