Matter of Lummus Tech., LLC v Air Prods. & Chems., Inc. 2024 NY Slip Op 34543(U) December 20, 2024 Supreme Court, New York County Docket Number: Index No. 654365/2024 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. INDEX NO. 654365/2024 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 12/20/2024
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M -----------------------------------------------------------------------------------X IN THE MATTER OF THE APPLICATION OF LUMMUS INDEX NO. 654365/2024 TECHNOLOGY, LLC 09/02/2024, Petitioner, MOTION DATE 09/16/2024
-v- MOTION SEQ. NO. 002 003 AIR PRODUCTS AND CHEMICALS, INC., DECISION + ORDER ON Respondent. MOTION
-----------------------------------------------------------------------------------X
HON. JOEL M. COHEN:
The following e-filed documents, listed by NYSCEF document number (Motion 002) 15, 16, 17, 18, 19, 20, 21, 22, 28 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 were read on this motion to SEAL / REDACT .
Petitioner Lummus Technology, LLC (“Lummus”) and Respondent Air Products and
Chemicals, Inc., seek orders sealing and/or redacting exhibits that were filed in connection with
this proceeding as NYSCEF Document Numbers 1, 3, 4, 5, 6, 8, and 14 (MS 02); and 36, 37, 38,
44, 45, 46, 47, 48, 49, and 50 (MS 03). For the following reasons, Petitioner’s motion (MS 02) is
denied without prejudice, and Respondent’s motion (MS 03) is 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
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]).
654365/2024 IN THE MATTER OF THE APPLICATION OF LUMMUS TECHNOLOGY, LLC vs. AIR Page 1 of 4 PRODUCTS AND CHEMICALS, INC. Motion No. 002 003
1 of 4 [* 1] INDEX NO. 654365/2024 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 12/20/2024
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. VI, 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]). Additionally, sealing and/or redacting is appropriate to the
extent the documents sought to be sealed contain nonpublic information about confidential
contracts or agreements with non-parties (see 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[.]”]).
The Court has reviewed Respondent’s proposed sealing of the documents filed as
NYSCEF Document Numbers 36, 37, 38, 46, 47, and 48 (MS 03) and finds that they comport
with the applicable sealing standard as laid out in Mosallem, 76 AD3d at 348-350, and its
progeny, in that they contain sensitive and confidential business and financial information,
including that of third parties.
However, Respondents’ generalized assertions of good cause for the remaining Exhibits
filed as NYSCEF Document Numbers 1, 3, 4, 5, 6, 8, and 14 (MS 02); and 44, 45, 49, and 50
(MS 03) do not establish a compelling justification for the complete sealing that is proposed.
654365/2024 IN THE MATTER OF THE APPLICATION OF LUMMUS TECHNOLOGY, LLC vs. AIR Page 2 of 4 PRODUCTS AND CHEMICALS, INC. Motion No. 002 003
2 of 4 [* 2] INDEX NO. 654365/2024 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 12/20/2024
While portions of these documents may include confidential business and financial information,
the proposed sealing is not adequately explained or justified. Thus, Respondents should propose
and justify targeted redactions that satisfy the requirements of 22 NYCRR § 216 [a] and
applicable case law. They may also provide evidence of the parties’ reasonable expectation of
confidentiality in the arbitration to support sealing of records and the public interest (or lack
thereof) in the subject matter of the documents.
Any subsequent motion seeking to address the above concerns should adhere to this
Part’s Sealing Practices and Procedures (see
https://www.nycourts.gov/LegacyPDFS/courts/comdiv/NY/PDFs/part3-sealing-practices.pdf),
including the requirement to submit an affidavit based on personal knowledge attesting to the
factual bases for redaction, unredacted copies of the documents with proposed targeted
redactions in highlights, and a spreadsheet setting forth a non-conclusory good faith basis for
each proposed redaction.
Accordingly, it is
ORDERED that Respondent’s motion to seal and/or redact (MS 03) is granted in part,
insofar as it seeks to seal the documents filed as NYSCEF Document Numbers 36, 37, 38, 46,
47, and 48, and is otherwise denied, without prejudice to filing a new motion within 21 days to
redact confidential portions of the remaining Exhibits consistent with this Decision and Order
and applicable case law; it is further
ORDERED that Petitioner’s motion to seal and/or redact (MS 02) is denied, without
prejudice to filing a new motion within 21 days to redact confidential portions of the documents
filed as NYSCEF Document Numbers 1, 3, 4, 5, 6, 8, and 14 consistent with this Decision and
Order and applicable case law; it is further
654365/2024 IN THE MATTER OF THE APPLICATION OF LUMMUS TECHNOLOGY, LLC vs. AIR Page 3 of 4 PRODUCTS AND CHEMICALS, INC. Motion No. 002 003
3 of 4 [* 3] INDEX NO. 654365/2024 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 12/20/2024
ORDERED that the County Clerk shall maintain the documents filed as NYSCEF
Document Numbers 36, 37, 38, 46, 47, and 48 under seal, so that the documents may be
accessible by the parties, their counsel, and authorized court personnel; it is further
ORDERED that the documents filed as NYSCEF Document Numbers 1, 3, 4, 5, 6, 8,
and 14 (MS 02); and 44, 45, 49, and 50 (MS 03) shall remain provisionally sealed for 21 days
from the date of the Court’s entry of this Decision and Order on NYSCEF. If the parties file a
new motion (or new motions) to seal or redact confidential portions of the documents consistent
with this Decision and Order within that 21-day period, the documents shall remain provisionally
sealed pending resolution of that motion. If no such motion is filed within 21 days from the entry
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Matter of Lummus Tech., LLC v Air Prods. & Chems., Inc. 2024 NY Slip Op 34543(U) December 20, 2024 Supreme Court, New York County Docket Number: Index No. 654365/2024 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. INDEX NO. 654365/2024 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 12/20/2024
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M -----------------------------------------------------------------------------------X IN THE MATTER OF THE APPLICATION OF LUMMUS INDEX NO. 654365/2024 TECHNOLOGY, LLC 09/02/2024, Petitioner, MOTION DATE 09/16/2024
-v- MOTION SEQ. NO. 002 003 AIR PRODUCTS AND CHEMICALS, INC., DECISION + ORDER ON Respondent. MOTION
-----------------------------------------------------------------------------------X
HON. JOEL M. COHEN:
The following e-filed documents, listed by NYSCEF document number (Motion 002) 15, 16, 17, 18, 19, 20, 21, 22, 28 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 were read on this motion to SEAL / REDACT .
Petitioner Lummus Technology, LLC (“Lummus”) and Respondent Air Products and
Chemicals, Inc., seek orders sealing and/or redacting exhibits that were filed in connection with
this proceeding as NYSCEF Document Numbers 1, 3, 4, 5, 6, 8, and 14 (MS 02); and 36, 37, 38,
44, 45, 46, 47, 48, 49, and 50 (MS 03). For the following reasons, Petitioner’s motion (MS 02) is
denied without prejudice, and Respondent’s motion (MS 03) is 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
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]).
654365/2024 IN THE MATTER OF THE APPLICATION OF LUMMUS TECHNOLOGY, LLC vs. AIR Page 1 of 4 PRODUCTS AND CHEMICALS, INC. Motion No. 002 003
1 of 4 [* 1] INDEX NO. 654365/2024 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 12/20/2024
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. VI, 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]). Additionally, sealing and/or redacting is appropriate to the
extent the documents sought to be sealed contain nonpublic information about confidential
contracts or agreements with non-parties (see 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[.]”]).
The Court has reviewed Respondent’s proposed sealing of the documents filed as
NYSCEF Document Numbers 36, 37, 38, 46, 47, and 48 (MS 03) and finds that they comport
with the applicable sealing standard as laid out in Mosallem, 76 AD3d at 348-350, and its
progeny, in that they contain sensitive and confidential business and financial information,
including that of third parties.
However, Respondents’ generalized assertions of good cause for the remaining Exhibits
filed as NYSCEF Document Numbers 1, 3, 4, 5, 6, 8, and 14 (MS 02); and 44, 45, 49, and 50
(MS 03) do not establish a compelling justification for the complete sealing that is proposed.
654365/2024 IN THE MATTER OF THE APPLICATION OF LUMMUS TECHNOLOGY, LLC vs. AIR Page 2 of 4 PRODUCTS AND CHEMICALS, INC. Motion No. 002 003
2 of 4 [* 2] INDEX NO. 654365/2024 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 12/20/2024
While portions of these documents may include confidential business and financial information,
the proposed sealing is not adequately explained or justified. Thus, Respondents should propose
and justify targeted redactions that satisfy the requirements of 22 NYCRR § 216 [a] and
applicable case law. They may also provide evidence of the parties’ reasonable expectation of
confidentiality in the arbitration to support sealing of records and the public interest (or lack
thereof) in the subject matter of the documents.
Any subsequent motion seeking to address the above concerns should adhere to this
Part’s Sealing Practices and Procedures (see
https://www.nycourts.gov/LegacyPDFS/courts/comdiv/NY/PDFs/part3-sealing-practices.pdf),
including the requirement to submit an affidavit based on personal knowledge attesting to the
factual bases for redaction, unredacted copies of the documents with proposed targeted
redactions in highlights, and a spreadsheet setting forth a non-conclusory good faith basis for
each proposed redaction.
Accordingly, it is
ORDERED that Respondent’s motion to seal and/or redact (MS 03) is granted in part,
insofar as it seeks to seal the documents filed as NYSCEF Document Numbers 36, 37, 38, 46,
47, and 48, and is otherwise denied, without prejudice to filing a new motion within 21 days to
redact confidential portions of the remaining Exhibits consistent with this Decision and Order
and applicable case law; it is further
ORDERED that Petitioner’s motion to seal and/or redact (MS 02) is denied, without
prejudice to filing a new motion within 21 days to redact confidential portions of the documents
filed as NYSCEF Document Numbers 1, 3, 4, 5, 6, 8, and 14 consistent with this Decision and
Order and applicable case law; it is further
654365/2024 IN THE MATTER OF THE APPLICATION OF LUMMUS TECHNOLOGY, LLC vs. AIR Page 3 of 4 PRODUCTS AND CHEMICALS, INC. Motion No. 002 003
3 of 4 [* 3] INDEX NO. 654365/2024 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 12/20/2024
ORDERED that the County Clerk shall maintain the documents filed as NYSCEF
Document Numbers 36, 37, 38, 46, 47, and 48 under seal, so that the documents may be
accessible by the parties, their counsel, and authorized court personnel; it is further
ORDERED that the documents filed as NYSCEF Document Numbers 1, 3, 4, 5, 6, 8,
and 14 (MS 02); and 44, 45, 49, and 50 (MS 03) shall remain provisionally sealed for 21 days
from the date of the Court’s entry of this Decision and Order on NYSCEF. If the parties file a
new motion (or new motions) to seal or redact confidential portions of the documents consistent
with this Decision and Order within that 21-day period, the documents shall remain provisionally
sealed pending resolution of that motion. If no 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 as it relates to future submissions, made by any party, that contain
subject matter that the court has authorized to be sealed by this Decision and Order, parties may
file a joint stipulation, to be So Ordered, which will authorize the filing of such future
submissions to be filed in redacted form on NYSCEF, provided that an unredacted copy of any
document is contemporaneously filed under seal.
This constitutes the Decision and Order of the Court. The Clerk is directed to mark this
Special Proceeding disposed.
12/20/2024 DATE JOEL M. COHEN, J.S.C. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
□ GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
654365/2024 IN THE MATTER OF THE APPLICATION OF LUMMUS TECHNOLOGY, LLC vs. AIR Page 4 of 4 PRODUCTS AND CHEMICALS, INC. Motion No. 002 003
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