• Surrogate's Court, New York County
  • 3168/2007
  • Dec 26 2012 (Date Decided)
  • Surrogate Glen

ESTATE OF DORIS RUBIN, Deceased (3168/2007) — At the call of the calendar, and for reasons more fully stated on the record, the court denied, in part, the motion of Polly Rubin to redact certain information submitted four years ago incident to the now-discontinued proceeding to declare certain artwork to be an asset of the estate. The proposed redactions included, in broad categories, personal financial information, inventories of artwork, insurance documents, and descriptions of jewelry, furniture and other personal property. Movant alleged that, if accessible as part of the public record, such information might attract "burglars, art counterfeiters, con men, and identity thieves."

The right of public access to court records is a presumption of constitutional dimension established by New York common and statutory law (Mosallem v. Berenson, 76 AD3d 346 [1st Dept 2010]; Gryphon Dom VI LLC v. APP Intl Fin Co, 28 AD3d 322 [1st Dept 2006]). This policy is clearly reflected in Judiciary Law §255-b, which requires that as a rule court records be available to the public. Furthermore, section 216.1 (a) of the Uniform Rules of Trial Courts (22 NYCRR) provides:

"Except where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties. Where it appears necessary or desirable, the court may prescribe appropriate notice and an opportunity to be heard."

The movant bears the burden of showing good cause (28 NY Jur §181) for the proposed redactions. Good cause for sealing records has been requires a "sound basis or legitimate need to take judicial action" (Gryphon at 325) and a particularized finding of a risk of harm (Matter of Hofmann, 284 AD2d 92 [1st Dept 2001]).

Disputes involving estates and trusts are a staple of the Surrogate's Court docket and the court records are therefore often replete with personal and financial information. But, as this court recently ruled in Matter of Thompson (NYLJ, June 19, 2012, at 22, col 3 [Sur Ct, New York County]), that in and of itself is not sufficient to establish good cause for sealing a file.

In terms of financial information, courts have recognized two exceptions to the general rule that court files should be open and the information contained therein accessible to the public. The first exception relates to copies of personal income tax returns to the extent contained in the parties' submissions. Although the courts have recognized a heightened level of confidentiality conferred on personal income tax returns (Latture v. Smith, 304 AD2d 534 [2d Dept 2003]), this rule does not extend to estate tax returns. In fact, section 207.20(b) of the Uniform Rules of Surrogate's Court contemplates the filing of an estate tax return as an alternative to filing an inventory of assets. The second exception to the strong presumption against sealing of court records relates to litigants' social security numbers (Bibeau v. Cantiague Figure Skating Club, Inc., 294 AD2d 525 [2d Dept 2002]) to the extent that they appear in court pleadings or exhibits.

Here, movant has waited over four years to assert the confidentiality of the pleadings in question. Moreover, she has not shown any particularized risk of harm in this case; certainly her generalized fear that the accessibility of information might make her vulnerable to malefactors at large falls far short of the mark. Therefore, the motion to redact movant's personal information is granted only to the extent of those portions of the record at which can be found movant's Social Security Number, and that of her daughter, Katherine Jarvis.

This decision, along with the transcript of the August 8, 2012 proceedings, constitutes the order of the court.

December 26, 2012