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IN THIS CHILD VICTIMS ACT ACTION, THE JUDGE CORRECTLY STRUCK INFLAMMATORY LANGUAGE FROM THE COMPLAINT BUT SHOULD NOT HAVE SEALED THE COMPLAINT WITHOUT MAKING WRITTEN FINDINGS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the judge was correct in striking inflammatory language from this Child Victims Act complaint but should not have sealed the complaint:

Pursuant to CPLR 3024 (b), “[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading.” “[I]t is generally held that the test under this section is whether the allegation is relevant, in an evidentiary sense, to the controversy and, therefore, admissible at trial” … . Although “factual averments about sexual abuse are necessary in any action where those allegations form the predicate for an award of damages, to state a cause of action generally and pursuant to the CVA [Child Victims Act] specifically” … , the language struck by the court does not contain any factual averments necessary to plaintiff’s causes of action. Further, the court’s decision to strike the inflammatory language does not preclude plaintiff from attempting to prove at the trial stage that defendant committed acts of sexual abuse against her. We thus conclude that “there is no prejudice to plaintiff as a result of the order, whereas if [the language is] not stricken prejudice may result to defendant” … .

We further conclude, however, that the court erred in granting that part of the cross-motion seeking to seal the complaint without making “a written finding of good cause, . . . specify[ing] the grounds thereof,” as required by 22 NYCRR 216.1 (a) … . LG 101 Doe v Wos, 2023 NY Slip Op 02404, Fourth Dept 5-5-23

Practice Point: In this Child Victims Act case, the judge properly struck inflammatory language from the complaint but should not have sealed the complaint absent written findings of good cause.

 

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