Can’t Seal the Alleged Libel Attached to Motion to Seeking Removal of the Libel

Czernyk v. Bongiovanni,

  1. plaintiff sued defendant over an alleged rape;
  2. Recent public claims made by plaintiff’s lawyer about the lawyer of defendant and defendant, as well as on plaintiff’s own blog.
  3. Friday saw defendant’s attorney request an order for plaintiff’s legal representative to “immediately delete the blog post page” as well as “a temporary gag or” against plaintiff’s law firm “pending the outcome the hearing on that issue.” (See also defense lawyer’s declaration);
  4. In the course of this proceeding, the lawyer for the defendant sought to obtain a copy under seal of the blog posting.

This motion arises from a number of demeaning statements that Plaintiff and Plaintiff’s attorneys made about Defendant, Defendant’s lawyers and the counsel of Defendant.

Plaintiff and her lawyer, Susan Crumiller appeared on Bronx Talk, a Bronx television program, to talk about her case. Priya Chaudhry (counsel for defendant) appeared on the second segment and responded to questions from the host. Ms. Chaudhry was interrupted multiple times during her interview to label Ms. Chaudhry a liar. Ms. Crumiller also claimed that Ms. Chaudhry’s statements regarding Counterclaim- Defendant’s monetary demand for one-million-dollars in the pendency the Fordham investigation were lies.

Counsel for Bongiovanni sent a letter on January 21st, 2022 to Ms. Crumiller in which she reacted to her defamatory comments. It stated that Crumiller’s remarks were actionable defamation, and asked her to withdraw her statements. Ms. Crumiller initially responded to the email asking for the identification of the witnesses in the $1 million demand. Ms. Crumiller requested the following information from Defendant’s Counsel. He also reiterated his request to retract the statements of Ms. Crumiller.

Ms. Crumiller responded publicly to the letter of Defendant’s attorney, accusing Defendant’s lawyer of lying and generally mocking Defendant’s attorneys. Crumiller also called Defendant a “rapist” on her website, blog, as well as on social media. The Ms. Crumiller post on Defendant was just one of a number of disparaging posts that included expletive-laden comments about other adversaries’ counsel. Plaintiff later posted Ms. Crumiller’s original post to her Instagram account. Ms. Crumiller, along with her agents, re-posted her defamatory blog post via Twitter and other platforms.

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In an attempt to limit any further damages to Defendant or his counsel, Defendant moved this Court to hear Ms. Crumiller and to request additional interim relief because Ms. Crumiller violated the New York Rules of Professional Conduct. Defendant filed a memorandum of legal and the Declaration of Priya Chaudhry to Support Defendant’s Motion for Expedited Hearing and Interim Relief. Exhibit A [which the motion seeks to seal]Here is an example of Crumiller P.C.’s webpage.Crumiller P.C.’s webpage containing offensive language. This exhibit contains precisely the harmful language that Defendant and his counsel seek to address with their motion and to file this exhibit, unsealed, to the public record would merely exacerbate the damages which they seek to remedy….

Undoubtedly, there is a presumption that public access is possible on any judicial record. However, documents can be sealed “if particular” based on record findings that show closure is necessary to protect higher values. … In making this determination, the court balances the movant’s interest in maintaining the secrecy of the documents with the public’s interest in accessing the information contained in the document.

Where, like here, the public has access to documents or other information that could cause damage to the movant, good cause for filing documents under seal was found.

Defendant doesn’t see any benefit for the public by having this document available. The text contains abusive and defamatory language that is directed towards Defendant as well his counsel. Both Defendant’s professional and personal reputations are greatly damaged by the contents of this document. Thus, the harm to movant here would vastly outweigh any interest the public might have in viewing the content of the document….

Judge John Koeltl, S.D.N.Y., stated no. Today, the judge ordered that the exhibit be sealed.

The defendant did not provide any compelling reason for sealing the case, nor that it would prevent others from distributing similar material.

While I understand why Ms. Chaudhry wants the attachment with the alleged libel to be sealed, I also appreciate the fact that it tends in part to increase the damage of the libel. But in our legal system, decisions by courts—especially decisions that implicate important constitutional rights—generally have to be done in public and subject to public scrutiny, not in secret. This means the public must be able see the arguments used by the parties to support their decisions. It’s difficult to comprehend a decision regarding whether a material should be taken down or libelous (the remedy sought by Ms. Chaudhry) if you don’t have access to that material.

See below for two examples of cases that raised similar questions. Parson v. Farley (N.D. Okla. 2018) Manhattan Telecommunications Corp. Vs. Granite Telecommunications, LLC. Ct. Ch. 2020).