INDEX NO. 602235/2016 FILED: NASSAU COUNTY CLERK 04/26/2016 05:10 PM NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 04/26/2016 SUPREME COURT OF ΤΗΕ STATE OF NEW COUNTY OF NASSAU YORΚ WILLIAM J. O'REILL Υ, PIaintiff, Index Νο. 602235/2016 -againstMAUREEN MCPHILMY, Defendant. MEMORANDUM OF LA W ΙΝ SUPPORT OF PLAINTIFF'S ΜΟΤΙΟΝ ΤΟ SEAL PURSUANT ΤΟ 22 NYCRR 216.1 Hoguet Newman RegaI & Kenney, LLP, ίη respectfully SUblllits this melllorandum of Iaw to fiIe all documents seaI, pursuant Ιο ίη this action that disclose οη beha1f of PIaintiff William J. O' Reilly, support of its motion by Order ΟΓ ιο Show Cause, refer to materials that are confidentia1 under the terms of the confidentiaIity agreement entered ίηΙο between P1aintiff and Defendant Maureen McPhi1my. BACKGROUND This is an action for damages resulting from Defendant's misrepresentations and fraudulent inducement of PIaintiff ιο enter ίηΙο a separation agreement and Ιο agree Ιο a diνorce incorporating the Separation Agreement. (See Affirmation of Fredric S. Newman, dated 26, 2016 ("Newman Aff."), Εχ . Β). together as husband and wife and about ΑΡΓίΙ2 , Ιη haνe 1996, P1aintiff and Defendant married, began two minor chi1dren. (See Newnlan Aff. , 2010, PIaintiffand Defendant entered ίηto a foπnal ~ 3). ΑΡΓίΙ Iiνing Οη ΟΓ Separation Agreement. (Id ., ~ 4). Plaintiff is a public figure and matters concernlng his personaI life, marriage, and chi1dren, attract media attention, which, extreme emotional distress. (Id., ~ 2). υροη information and beIief, caused the minor chiIdren υροη infoπnation 1 of 6 and beIief, past media attention. Thus, ίη the Separation Agreement, Plaintiff and Defendant agreed and circumstances suποuηdίηg Ιο Ιο strict confidentiality of the terms shield the children from the pressures of unwanted and intrusive publicity the separation. (Td., ~ 5). Specifically, the Separation Agreement contains a Ι9, Confidentiality and Nondisclosure Agreenlent, dated November Agreement"). (Newman Aff., Defendant agreed that " ίη the other Party ... that Εχ. Α). Pursuant Ιο the Confidentiality Agreenlent, Plaintiff and the event of any future legal action Ιο 2009 (the "Confidentiality οτ proceeding by one Party against the extent permitted by law, all filings shall be comrnenced and οτ prosecuted anonymously, all court files shall be sealed to third-parties (except his respective counsel), and the Parties hereby consent Ιο any order of the Court which excludes tllird parties from any and all court proceedings." (Newman Aff., Ιο an order entered ίη Εχ. Α, ~ 5). Indeed, pursuant the matrimonial action between the parties, the divorce proceeding is fact, ίη the divorce proceedings closed the courtroom Ιο conlpIeteIy under seal and being prosecuted anonymously. (See Newman Aff., an order dated December the public ίη Ι9 , ίη 2013, the court ~ attorneys, sought Ιο (Id. , ~ 9). ~ 10). Application. (Id.) commence an action anonymously and under seal, by nlaking an Οη ΑρτίΙ Ι, Οη Αρτί11 , 2016, Ηοη. previously agreed and Οη ΑρτίΙ ίη Νο. Karen V. Murphy declined to sign the Εχ Parte 002518Εχ Parte 2016, Plaintiffcomrnenced this action by filing a Sumrnons with Notice, to provide the parties with the opportunity ηοΙ Ιη Plaintiff, through his Application for Leave to File Complaint Anonymously and Sealing Order, Index has 7). consideration ofthe best interests ofthe Plaintiffand Defendant's children. (.!iL) This is a fraudulent inducement of contract action. 2016. (Id., her Ιο make an application for sea1ing, as the best interests of the minor children of the couple. (Id. , ~ !!). 5,2016, Defendant was personally served. (NYSCEF Doc. Νο. 2). Defendant appeared, ηοτ served a written detnand [οτ a complaint, 2 2 of 6 ηοτ requested an extension of time ιο do either. (See Newman Aff. , ~ 15). Therefore, Defendant is intends to fi!e a Μοιίοη for a Defau!t Judgment and seeks !eave constituting the c!aim pursuant confιdentia! ιο ίη Ιο defau!t. (Id.) P!aintiff fi!e proof of the facts CPLR 3215(!) under sea!, as such facts will touch upon information, which P!aintiff and Defendant previous!y agreed Agreement and ίη ίη the Confidentia!ity the best interest of their chi!dren wou!d remain sea!ed. (Id., ~ 16). ARGUMENT Ι. Α SEALING ORDER IS W ARRANTED UNDER SECTION 216.1 There is a compelling interest contractually ob!igated ηο! ιο ίη sea!ing thi s case because Plaintiff and Defendant are disc!ose information re!ated ιο this dispute as they agreed tlle best interests of their chi!dren, which overcomes the right of pub!ic access ιο ίι is ίη records. Section 216.1 ofthe Uniform Rules for New York State Tria! Courts provides that a court may enter an order sea!ing the court records "upon a written finding of good cause, which shall specify the grounds thereof. " 22 NYCRR § 216.1(a). "[S]ince there is good cause, ίη ηο abso!ute definition, essence, 'boi!s down to ... the prudent exercise of the court's discretion. ", Mancheski v. Gabelli Grp. Capita! Partners, 39 A.D.3d 499, 502, 835 N.Y.S.2d 595, 598 (2d Dep't 2007) (citations omitted). fi!ed ίη Thίs Court shou!d exercise its discretion and sea! the Comp!aint this action. There is a strong justification for keeping the records ίη the parties agreed that future disputes shou!d be confidentia! and this action confidentia! because ίι is ίη the best interests oftheir chi!dren. While there is a general ru!e favoring open court records, New ιο that good cause exists for sealing of records outweigh the public' s right Misc. LEXIS 50, 2015 ΝΥ ιο Υ ork courts recognize protect the interests of chi!dren, which can know. See Matter of Skutch Music Publ., Inc. (Diaz), 2015 S!ip Ορ 300 !8(U), ~ 3 (Sur. Ct. Jan. 30, 2015). It is ίη Ν.Υ. the best interest of the children that this dispute remains away from prying eyes. The devastating impact 3 3 of 6 of public disclosure of confidential information nature here, as the court ίη ~ 8). Ιη the parties ' children is ποι speculative ίπ the divorce proceeding previously found, proceeding under seal and anonymously was warranted Newman Aff, υροπ fact , ίη order Ιο ίη an order dated December 19, 2013, the court protect the interests of the parties' children. proceedings closed the courtroom to the public ίπ ίπ (See the divorce consideration of the best interests of the Plaintiff and Defendant 's children. (ld.) Το avoid the indisputable emotional and educational harm Ιο their children, which the parties previously ack.nowledged would result from intense media scrutiny, this Court should safeguard the best interests of the children and seal the proceedings here. Thus, this fraudulent inducement action should remain confidential Ιο protect the interests of their children, just as t11e parties agreed. ιο The parties ' pre-existing agreement support for sealing. See Matter of Cohen ν. 1054Α , Ν.Υ. 815 N.Y.S.2d 493, 493 (Sup. Ct. keep information confidential provides further S.A.C. Capital Advisors LLC, 11 Misc. 3d appropriate, moreover, when the parties wish 1054(Α) , Cnty 2006) ("Sealing records may be particularly Ιο maintain the confidentiality ofmaterials that ' for the most part involve[] the intemal finances ' of a party and do πο! implicate any matters of public interest."). Thus, the public disclosure of the dispute between Plaintiff and Defendant would cause both parties harm and potentially impact the confidentiality of a n1atrimonial matter involving the custody of their children, the interests of which are being protected confidential and anonymous divorce proceedings. Ιπ order Ιο ίπ the set forth his claims, Plaintiff will eventually submit the Sepal'ation Agreement, which involves confidential custodial matters involving Plaintiff and Defendant's children. The disclosure of this information, if revealed, would violate the confidentiality afforded to matrimonial matters under New York law and potentially harm the children. Ιι is for this reason that both parents, the parties here, expressed 4 4 of 6 the intent to avoid the irreparable harrn and devastating impact υροη their children that would result by the disclosure and dissemination of confιdential inforrnation. (See Newman Aff., Εχ. Α). Conversely, there is minimal public interest to this dispute. Putting aside the strong presunlption for confidentiality ίη matters touching υροη matrimony, divorce, and child custodyl - all potentially implicated by public disclosure of the matters raised by this action - New York courts recogιιize that the public has lίttle course of conduct of two private parties concem ίη ίη the terrns of a private agreement and the the performance of that agreement. See Dawson v. White & Case, 184 A.D.2d 246, 247, 584 N.Y.S.2d 814, 815 (1st Dep't 1992) (sealing records and finding that there was ηο ''Iegitimate public concem, as opposed to mere curiosity' to counter-balance the interest of defendant's partners and c1ients ίη keeping their financial arrangements private" (citations omitted)). This is a dispute conceming a fraudulent inducement ιο enter ίηΙο a private, confidential contract perpetrated by Defendant against Plaintiff. As such, the parties' interest ίη maintaining the confidentiality of their dispute, and agreements thereof, should prevail here. ι ShiIes Υ . Ne\vs Syndicate Co., 27 N.Y.2d 9, Ι4 , 3 Ι 3 Ν. Y.S.2d Ι 04, Ι 07 (Ι 970) ("[T]he LegisIature has, at ieast si nce Ι 847 (Oen. RuIes of Prac., ruIe Ι Ι 8; see, aIso, RuIes Civ. Prac., ruIe 278; Domestic ReIations La\v, § 235), made it plain that ίπ matrίlηοnίaΙ actions the balance ofconvenience is ίη favor ofthe individual and that ίπ the case ofpapers fιIed ίη such actions the public interest is serνed ηοΙ by pubIicizing then, but by seaIing them and prohibiting their examination by the pubIic.") 5 5 of 6 CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that this Court enter an order to seal the proceedings. Dated: Αρτίl 26, 2016 New York, New York Respectfully submitted, HOGUET NEWMAN R EGAL & Κ ΕΝΝΕΥ , ΙΙΡ α~1M Fredric S. NewmIi'n Ι Ο East 40,h Street, 35'11 Floor NewYork,NY 10016 Phone: 212-689-8808 AIIoI'neysfor P/ainIίjJ 6 6 of 6