Mombrun v. New York City Department of Housing Preservation and Developmentet al

Filing 12

ORDER granting 11 Letter Motion to Seal. For the reasons stated below, the motion to seal the Complaint is GRANTED. The Clerk of Court is respectfully directed to restrict access to the Complaint and Amended Complaint, (Docs. 2, 6), only to the C ourt and the parties. IT IS FURTHER ORDERED that, by September 19, 2024, the parties meet and confer then submit a joint letter and a proposed redacted complaint which may be filed on the public docket. IT IS FURTHER ORDERED that, by September 19, 2 024, Plaintiff explain its reasons for including the confidential and protected information discussed below--some of which clearly qualifies for redaction under my Individual Rules 5.B.i and ii.--in public filings. SO ORDERED. (Signed by Judge Vernon S. Broderick on 8/29/2024) (tg)

numerous factors, such as “(i) the danger of impairing law enforcement or judicial efficiency and
(ii) the privacy interests of those resisting disclosure.” Bernstein, 814 F.3d at 143. Importantly,
“the proponent of sealing must demonstrat[e] that closure is essential to preserve higher values
and is narrowly tailored to serve that interest.” Bernstein, 814 F.3d at 144 (internal citation and
quotation omitted); Lugosch v. Pyramid Co., 435 F.3d 110, 112 (2d Cir. 2006) (“Documents may
be sealed if specific, on the record findings are made demonstrating that closure is essential to
preserve higher values and is narrowly tailored to serve that interest”).
B. The Complaint Should Be Sealed Because it Contains Information about a
Confidential Ongoing COIB OATH Proceeding
By way of background, while Plaintiff was employed with HPD, allegations were
made against Plaintiff that resulted in a referral to the New York City Department of Investigation
(“DOI”) and the COIB. DOI completed an investigation, after which time HPD commenced
disciplinary action against Plaintiff. Separately, the COIB also conducted its own investigation.
The confidential OATH proceeding of concern here is one component of the ongoing COIB
investigation. Throughout the Complaint, Plaintiff makes liberal reference and citation to the
OATH proceeding, and he appended to the Complaint a document purportedly produced during
the OATH hearing. See Complaint (“Compl.”) ¶¶ 35, 48-62,101-103, 121, 123-137; see also Ex.
A, ECF No. 6-1.
Pursuant to § 2603(k) of the New York City Charter, “records, reports, memoranda
and files of the [Conflicts of Interest Board] shall be confidential and shall not be subject to public
scrutiny.” N.Y.C. Charter § 2603(k). Furthermore, pursuant to § 2-03 of the Rules of the Conflict
of Interest Board, an OATH hearing, including the one referenced the Complaint, is confidential
until such time as the COIB issues “an order stating its final findings.” See 53 R.C.N.Y. § 203(j)(1). Even subsequent to the issuance of such an order, “all other underlying records, reports,
memoranda, and files will remain confidential in accordance with Charter § 2603(k).” See 53
R.C.N.Y. § 2-03(j)(2). Moreover, the Administrative Law Judge’s report and recommendation
remains confidential. See 53 R.C.N.Y. § 2-03(g).
Here, all claims involving the ongoings of the OATH hearing, including all
allegations against Anita Armstrong and the COIB, and exhibits relating to the OATH hearing
should be sealed because they are confidential by law. Plaintiff does not allege that he requested
to make the OATH hearing public, nor has the COIB issued a determination report. Thus,
everything pertaining to the OATH hearing remains confidential, and these portions of the
Complaint should be sealed. See, e.g., Floyd v. City of N.Y., 2021 U.S. Dist. LEXIS 142724, at
*14-15 (S.D.N.Y. 2021) (granting motion to seal because the public’s right of access did not attach
to a draft report that had not been finalized or filed).
C. The Complaint Should Be Sealed Because it Contains Personally Identifying
Information
a. The Photographs Plaintiff Included in the Complaint are Improper
Pursuant to Rule 8 of the Federal Rules of Civil Procedure, pleadings must contain
“statements” and “allegations” showing that the pleader is entitled to relief. F.R.C.P. 8(a), (d). The
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federal rules, however, do not contemplate photographs of named defendants or of other objects.
See Marom v. Town of Greenburgh, 2015 U.S. Dist. LEXIS 21759, at *16 (S.D.N.Y. 2015)
(“summonses are integral to and incorporated by reference in the complaint, whereas photographs
are not”) (declining to consider photographs annexed to a complaint when considering a motion
to dismiss); Energizer Brands, LLC v. My Battery Supplier, LLC, 529 F. Supp. 3d 57, 61
(E.D.N.Y. 2021) (declining to consider photographs annexed to a complaint as they are not integral
to the complaint or incorporated in it by reference). Here, Plaintiff improperly incorporates
photographs of Defendant Vaysman and non-party Hendrickson in the Complaint. See Compl. at
2, 27. The photographs of Defendant Vaysman and non-party Hendrickson are not material to the
Complaint, nor are they statements or allegations. Instead, the photographs are personally
identifying information, which is improper, and should be sealed from public access. See Krull v.
Annucci, 2022 U.S. Dist. LEXIS 2095, at *5 (S.D.N.Y. 2022) (finding that personally identifying
information includes photographs); Davis v. 1568 Broadway Hotel Mgmt. LLC DoubleTree Hotel
Times, 2018 U.S. Dist. LEXIS 2659, at *12 (S.D.N.Y., 2018) (ordering redactions of personal
identifying information) Sealing those portions of the Complaint that include photographs of a
defendant and non-party preserves the privacy of those individuals “without jeopardizing the right
of access that presumptively applies to judicial documents.” See Ingber, 2024 U.S. Dist LEXIS
89183 at *4. Accordingly, the inclusion of photographs of Defendant Vaysman and Hendrickson
in the Complaint is improper, and the portions of the Complaint displaying those photographs
should be sealed from public access. See M.C. v. Cty. of Westchester, 2019 U.S. Dist. LEXIS
211569, at *2 (S.D.N.Y. 2019) (granting plaintiff’s motion to file under seal “[p]hotographs of his
likeness”).
b. The Photographs Plaintiff Included in the Complaint are Prejudicial
A court may decline to seal personal information “when it relates to allegations
made in the complaint and filings and ‘necessary to or helpful in resolving a motion.’” See Ramirez
v. Temin & Co., 2020 U.S. Dist. LEXIS 216034, at *15 (S.D.N.Y. 2020) (internal citation
omitted)). However, courts have the discretion to exclude information if the danger of unfair
prejudice substantially outweighs the probative value. See F.R.E. 403; United States v. Quattrone,
441 F.3d 153, 186 (2d Cir. 2006) (“Unfair prejudice may be created by the tendency of the
evidence to prove some adverse fact not properly in issue or unfairly to excite emotions against
the defendant”). Because the photographs included in the Complaint do not relate to allegations
made in the Complaint and are prejudicial, those portions of the Complaint where the Plaintiff
included photographs should be sealed.
In addition, when determining whether to seal portions of the Complaint, the
“privacy interests of innocent third parties . . . should weigh heavily in a court’s balancing
equation.” Eric Fishon v. Peloton Interactive, Inc., 2022 U.S. Dist. LEXIS 186782, at *7 (S.D.N.Y.
2022) (quoting United States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995)); see also SEC v.
Telegram Grp., Inc., 2020 U.S. Dist. LEXIS 106592, at *8 (S.D.N.Y. 2020) (“the privacy interests
of non-parties” is a factor that often “outweigh[s] the right of public access”). Here, Hendrickson
is a non-party to this action. Furthermore, Plaintiff does not bring any allegations here against
Hendrickson. The privacy interest of non-party Hendrickson supports sealing that portion of the
Complaint that contains her photograph.

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With respect to the photograph of Defendant Vaysman, Plaintiff, who purports to
assert claims of racial prejudice under the New York State and City Human Rights Laws (“SHRL”
and “CHRL,” respectively), self-identifies as a “Haitian male with a Haitian accent.” See Compl.
¶ 2. The photograph of Defendant Vaysman, which, consequently, is unrelated to even a single
allegation set forth in the Complaint, is highly prejudicial in that it depicts the face of a white
female. Indeed, there is no discernible purpose for Plaintiff to have included a photograph of
Defendant Vaysman other than to inflame an implied perception of racial prejudice. Therefore, the
Court should immediately seal that portion of the Complaint that contains a photograph of
Defendant Vaysman. See Moloi v. Riley, 762 F. Supp. 36, 37 (E.D.N.Y. 1991) (photographs “shall
be excluded if [the] sole purpose is to prejudice the defendant”); D.R. v. Santos Bakery, Inc., 675
F. Supp. 3d 355, 362 (S.D.N.Y. 2023) (where the court excluded photographs that were more
prejudicial than probative).
c. The Names and Email Addresses of COIB and OATH Officials are
Confidential During the Course of an Active Hearing
Courts in the Second Circuit have routinely recognized the need to protect the
personally identifiable information of non-affiliated third parties. See Fishon, 2022 U.S. Dist.
LEXIS 186782 at *7; Amodeo, 71 F.3d at 1050-51 (2d Cir. 1995); SEC, 2020 U.S. Dist. LEXIS
106592, at *8. Here, exhibits annexed to the Complaint include the names and e-mail addresses of
COIB employees, OATH employees, and the name and email address of the Administrative Law
Judge overseeing an ongoing OATH hearing. See Compl., Ex. B, ECF Dkt. No. 6-2. As set forth
above, such information should be sealed because it is confidential by law. Furthermore, this
personally identifying information is the type that courts typically deem confidential and
permissible to seal. See, Oklahoma Firefighters Pension v. Musk, 2024 U.S. Dist. LEXIS 90579,
at *4 (S.D.N.Y. 2024) (redacting names of non-party employees identified in the complaint);
Golden Unicorn Enter., Inc. v. Audible, Inc., 2023 U.S. Dist. LEXIS 39273 (S.D.N.Y 2023)
(granting motion to seal request of nonparties information, including names and email addresses);
Rowe v. Google LLC, 2022 U.S. Dist. LEXIS 173468, at *2 (S.D.N.Y. 2022) (“to accommodate
the privacy interests of third-parties, documents may be filed under seal with the names […] of
non-party employees redacted”); Kewazinga Corp. v. Microsoft Corp., 2021 U.S. Dist. LEXIS
62974, at *14 (S.D.N.Y. 2021) (redacting emails and other personal information of nonparties).
Thus, for the reasons explained supra, City Defendants respectfully request that the
Complaint be sealed. We thank the Court for its attention to this matter.
Respectfully submitted,
/s/_
Elisheva L. Rosen
Elisheva L. Rosen
Assistant Corporation Counsel
cc:

Tyrone A. Blackburn, Esq
Attorney for Plaintiff
T. A. Blackburn Law, PLLC.
TABlackburnlaw.com

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