The preliminary executors have filed an ex parte preemptive application pursuant to 22 NYCRR §216.1(a) for an order sealing the records of the estate. Specifically, they request the Court seal all information concerning the "...disclosure of revenues, expenses and profits (if any) of the Patrick properties and all of the facts and documents related thereto, including annual financial statements and appraisals..." (Motion, ¶16). The decedent owned a real estate company and had a financial stake in six (6) commercial properties at her death.

The basis for this application is that disclosure of the estate's financial position would place it at an economic disadvantage in any future attempt to either sell or lease the properties. The preliminary executors also urge in very general terms that disclosure would be detrimental to the estate if it were to pursue deferral of estate taxes pursuant to Internal Revenue Service Code §6166.

Part 216 of the Court Rules provides in relevant part:

"Except where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except 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]).

It is settled under New York law 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].) A party seeking to seal court records has the burden to demonstrate compelling circumstances to justify restricting public access. (Mancheski v. Gabelli Group Capital Partners, 39 AD3d 499, 502 [2d Dept. 2007].) That burden is "substantial". (Mosallem v. Berenson, supra, at 349.) [*2]

The cited rule does not define "good cause". There are, however, decisions which assist in its implementation. A determination whether good cause exists must be on a case by case basis, according to the facts. (Mancheski v. Gabelli Group Capital Partners, supra; Doe v. Bellmore-Merrick Central High School, 1 Misc 3d 697, 699 [Sup Ct, Nassau Cty, 2003].)

Sealing the record is not warranted when the information sought to be sealed is already a matter of public record and is manifestly of public interest. For example, the movants acknowledge that the assessed value of one of the decedent's property interests is readily available (Motion, ¶5). (Coopersmith v. Gold, 156 Misc 2d 594 [Sup Ct, Rockland Cty, 1992].) Conclusory claims of the need for confidentiality are insufficient to find good cause. (Matter of Hoffmann, 284 AD2d 92, 94 [1st Dept. 2001].) Indeed, "confidentiality is clearly the exception, not the rule...[T]he court is always required to make an independent determination of good cause." (Id. at 94.) The type of proceeding is an important factor to consider when determining whether good cause exists to seal the record. (Matter of Twentieth Century Fox Film Corp., 190 AD2d 483, 487 [1st Dept. 1993].) A finding of good cause presupposes that public access to the Surrogate's Court file will likely result in harm to a compelling interest of the movants. (Mosallem v Berenson, supra, at 349.) Distilled to its simplest form, good cause "boils down to...the prudent exercise of the court's discretion." (Mancheski v. Gabelli Group Capital Partners, supra, at 502.)

The movants have hypothesized about events, potential estate liability and financial transactions related to the estate which have yet to occur. It is entirely prospective.

The requested order is overbroad. It also lacks specificity to provide a sound basis or legitimate need to take judicial action. (Gryphon Domestic VI, LLC v. APP International Finance Co., B.V., 28 AD3d 322, 325 [1st Dept. 2006], lv appl den'd 10 NY3d 705 [2008].) Disclosure with appropriate redaction as the estate unfolds will more discretely accomplish the protective as well as informational ends of both its interests and the public. (Danco Laboratories, Ltd. v. Chemical Works of Gedeon Richter, Ltd., 274 AD2d 1, 6 [1st Dept. 2000].)

The motion is denied without prejudice based upon the foregoing.

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

April 17, 2013

ENTER

HON. JAMES D. PAGONES, S.C.J.