Berkovec v. Blue Matrix I, LLC

2024 NY Slip Op 33487(U)

• Court: New York Supreme Court, New York County
• Decided: October 2, 2024
• Docket: Index No. 652203/2024
• Status: Unpublished

Opinion

Berkovec v Blue Matrix I, LLC 2024 NY Slip Op 33487(U) October 2, 2024 Supreme Court, New York County Docket Number: Index No. 652203/2024 Judge: Joel M. Cohen Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [FILED: NEW YORK COUNTY CLERK 10/02/2024 12:48 P~ INDEX NO. 652203/2024 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 10/02/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M ----------------------------------------------------------------------------------- X

KENNETH BERKOVEC INDEX NO. 652203/2024

Plaintiff, 05/03/2024, 06/17/2024, - V - MOTION DATE 08/20/2024 BLUE MATRIX I, LLC, MOTION SEQ. NO. 001 003 004 Defendant. DECISION+ ORDER ON MOTION ----------------------------------------------------------------------------------- X

HON. JOEL M. COHEN:

The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19,20, 21, 22,23,24, 25,26,27,28,29, 30, 31,32, 33 were read on this motion to SEAL/REDACT

The following e-filed documents, listed by NYSCEF document number (Motion 003) 43, 44, 45, 46, 47, 48,49,50,51,52,53,54,55,56,57,58,59, 60,61,62 were read on this motion to SEAL/REDACT

The following e-filed documents, listed by NYSCEF document number (Motion 004) 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86 were read on this motion to SEAL/REDACT

The parties in this action seek orders sealing and/or redacting exhibits that were filed in

connection with this proceeding as NYSCEF Document Numbers 1, 3, 4, 5, 6, 7, and 8 (MS 01)

("Plaintiff's Motion"); and 36, 38, 39, 40, 41, and 42 (MS 03); and 63, 69, 71, 76, 77, 78, 79, 80,

and 81 (MS 04) (together with MS 03, "Defendant's Motions"). For the following reasons, the

motions are granted in part.

Pursuant to§ 216.1 (a) of the Uniform Rules for Trial Courts, this Court may seal a filing

"upon a written finding of good cause, which shall specify the grounds thereof. In determining

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whether good cause has been shown, the court shall consider the interests of the public as well as

of the parties" (22 NYCRR § 216.1 [a]).

The Appellate Division has emphasized that "there is a broad presumption that the public

is entitled to access to judicial proceedings and court records" (Mosallem v Berenson, 76 AD3d

345, 348 [1st Dept 2010]). "Since the right [of public access to court proceedings] is of

constitutional dimension, any order denying access must be narrowly tailored to serve

compelling objectives, such as a need for secrecy that outweighs the public's right to

access" (Danco Labs., Ltd v Chemical Works of Gedeon Richter, Ltd., 274 AD2d 1, 6 [1st Dept

2000] [emphasis added]; see also, e.g. Gryphon Dom. VL LLC v APP Intern. Fin. Co., B. V, 28

AD3d 322, 324 [1st Dept 2006]). "Furthermore, because confidentiality is the exception and not

the rule, 'the party seeking to seal court records has the burden to demonstrate compelling

circumstances to justify restricting public access"' (Maxim, Inc. v Feifer, 145 AD3d 516,517

[1st Dept 2016] [citations omitted]).

The Court has reviewed all three motions, and concludes Defendant's proposed targeted

redactions of the documents filed as 1, 3, 4, 5, 6, 7, 8, 48, 50, 52, 54, 56, 58, 69, 76, and 78

comport with the applicable sealing standard as laid out in Mosallem, 76 AD3d at 348-50, and its

progeny, in that the redacted information contains sensitive and confidential business and

financial information. Further, these Exhibits are properly sealed and/or redacted to the extent

they contain nonpublic information about confidential contracts or agreements with non-parties

(Mancheski v Gabelli Grp. Capital Partners, 39 AD3d 499, 502 [2d Dept 2007] ["[D]isclosure

could impinge on the privacy rights of third parties who clearly are not litigants herein[.]"]). On

the other hand, the proposed redactions filed as NYSCEF Document Numbers 69 and 80 are

overbroad and tantamount to complete sealing, and Defendant does not establish a compelling

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justification for the nearly complete sealing that is proposed. Accordingly, Defendant should

propose and justify more narrowly tailored redactions that satisfy the requirements of 22

NYCRR § 216 [a], applicable case law, and this Decision and Order.

Any subsequent motion seeking to address the above concerns should adhere to this

Part's Sealing Practices and Procedures (see

https ://www.nycourts.gov/LegacyPD FS/courts/comdiv/NY/PDF s/part3-sealing-practices. pdf),

including the requirement to submit an affidavit based on personal knowledge attesting to the

factual bases for redaction and a spreadsheet setting forth a non-conclusory good faith basis for

each proposed redaction.

Accordingly, it is

ORDERED that Plaintiffs motion (MS O1) is granted in part to the extent of

Defendant's proposed redactions; it is further

ORDERED that Defendant's Motion Sequence 03 is granted and Motion Sequence 04

is granted in part; it is further

ORDERED that the County Clerk shall maintain the unredacted documents filed as

NYSCEF Document Numbers 1, 3, 4, 5, 6, 7, and 8 (MS 01); 36, 38, 39, 40, 41, and 42 (MS 03),

and 63, 69, 76, and 78 (MS 04) under seal, so that the documents may be accessible by the

parties, their counsel, and authorized court personnel; and it is further

ORDERED that the exhibits sealed by this Order be permitted to remain on the docket in

redacted form; it is further

ORDERED that the exhibits filed as NYSCEF Document Numbers 80 shall remain

provisionally sealed for 21 days from the date of the Court's entry of this Decision and Order on

NYSCEF. If any party file a new motion to seal or redact confidential portions of the documents

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consistent with this Decision and Order within that 21-day period (or a stipulation as permitted

by this Decision and Order), the documents shall remain provisionally sealed pending resolution

of that motion. Ifno such motion is filed within 21 days from the entry of this Decision and

Order, the parties shall alert the County Clerk that the motion to seal the above-referenced

documents has been denied by the Court and that the documents should be unsealed on

NYSCEF; it is further

ORDERED that, to the extent they have not already done so, the parties shall upload

redacted copies to NYSCEF of the documents for which sealing/redaction is granted; it is further

ORDERED that nothing in this Decision and Order shall be construed as sealing

documents or testimony to be admitted at trial; and it is further

ORDERED that, as it relates to future submissions made by either party which contain

subject matter that the court has authorized to be sealed by this Decision and Order, the parties

may file a joint stipulation, to be So Ordered, which will authorize the filing of such future

submissions to be filed in sealed and/or redacted form on NYSCEF, provided that an

unredacted copy of any document is contemporaneously filed with a request to seal.

This constitutes the Decision and Order of the Court.

10/2/2024 DATE JOEL M. COHEN, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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