Surrogate's Court, Rockland County, September 26, 2023

Getler, Gomes & Sutton, P.C., Suffern (Janine A. Getler of counsel), for petitioner.

Before the court is a motion seeking to seal court records in connection with this probate pursuant to 22 NYCRR 216.1. The motion is unopposed.

Background

J.S. executed his will on January 2, 2013. The will included specific bequests to his three sons and one grandchild. In December 2019, the one grandchild filed a petition with the Supreme Court seeking leave to change their name to comport with their gender identity. The name change petition was granted on January 30, 2020. The Supreme Court found that the record of the name change should be sealed pursuant to 22 NYCRR 216.1 based on the safety and privacy concerns of the petitioner.

Decedent passed away on October 2, 2022. On May 31, 2023, petitioner, one of decedent's sons and the named executor in the will, filed a petition to probate the will. The will refers to the grandchild by their prior name. Because the grandchild is a beneficiary, the probate petition requires that the grandchild's name and address be listed in section 7 (a) of the petition.

On July 11, 2023, petitioner moved to seal the records of probate to redact the grandchild's former name. Petitioner argues that the grandchild's safety and privacy concerns constitute good cause for the partial sealing of the records. Petitioner does not claim that the grandchild has specific instances of or a personal history of threats to their personal safety.

Discussion

"Public access to the courts is a hallmark of our system of adjudicating disputes." (Matter of Schwartz, 20 Misc 3d 860, 861 [Sur Ct, Kings County 2008] [denying application to seal].) The public is presumed to have the right of access to ensure "the actual and perceived fairness of the judicial system, as 'the bright light cast upon the judicial process by public observation diminishes the [*2]possibilities for injustice, incompetence,{**81 Misc 3d at 927} perjury, and fraud.' " (Mancheski v Gabelli Group Capital Partners, 39 AD3d 499, 501 [2d Dept 2007], quoting Republic of Philippines v Westinghouse Elec. Corp., 949 F2d 653, 660 [3d Cir 1991].) Applications to seal should be granted only when "an overriding compelling interest" has been demonstrated. (Schwartz, 20 Misc 3d at 862.)

In 1991, in response to an increase in settlements that sought to seal court records, the Chief Administrative Judge of the Courts promulgated rule 22 NYCRR 216.1 (a). The rule directs that court records shall not be sealed "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." (Id.; see Matter of East 51st St. Crane Collapse Litig., 106 AD3d 473 [1st Dept 2013] [decision to unseal records affirmed to allow class members to make informed decisions as to relative benefits and drawbacks of settling their own claims].)

Since confidentiality has been the exception, the court must make an independent decision in each case as to whether "good cause" has been shown, and whether to seal records in whole or in part. (See Mancheski, 39 AD3d at 502 [affirming trial court decision that identified particular documents to file under seal].) The movant must demonstrate that public access to the documents at issue has significant potential to harm a compelling interest of the movant and there is no alternative to sealing that could adequately protect the threatened interest.

Here, the Supreme Court already determined pursuant to 22 NYCRR 216.1 (a) that good cause existed to seal the records of this person's name change. While this finding is not binding on this court, it is persuasive. Further, in 2021, the Gender Recognition Act (the GRA) was signed into law in New York. (See L 2021, ch 158.) The GRA amended the name change statute set forth in article 6 of the Civil Rights Law. As is relevant here, Civil Rights Law § 64-a was amended to clarify the "totality of the circumstances" standard for sealing name change papers. The amendments clarified that the

" 'totality of the circumstances' shall include, but not be limited to, a consideration of the risk of violence or discrimination against the applicant, including such applicant's status as transgender or as the subject of domestic violence. The court shall not deny such sealing request solely on the basis that the applicant lacks specific instances of or a{**81 Misc 3d at 928} personal history of threat to personal safety." (Id. subd [1].)

Again, while the GRA does not speak to requests to seal court records other than those related to name changes, the legislative history makes it clear that the presumption should favor sealing of records to protect members of the LGBTQ+ community from "hate crimes, public ridicule, and random acts of discrimination." (Senate Introducer's Mem in Support, Bill Jacket, L 2021, ch 158 at 6, 9 [Justification]; cf. Matter of JE, 79 Misc 3d 1052 [Sup Ct, Albany County 2023] [discussing GRA].)

Surrogate's Court filings are presumptively public. Prior to electronic filing, anyone could come to the Surrogate's Court and search its files. Now, almost all documents are filed electronically through NYSCEF (New York State Courts Electronic Filing System). Most of the documents that are uploaded can be viewed by accessing WebSurrogate.^[FN1] Although the names of the beneficiaries and distributees of a decedent are not searchable in WebSurrogate, if one knows the name of a decedent or the fiduciary, then it is possible to access the entire file. In this case, both the will and the petition for probate would [*3]contain the former name of the beneficiary grandchild, and the probate petition would contain the current name and address.

In light of the GRA, this court finds the evidence of a transgender name change is not information that is presumptively public information. That, combined with the prior finding of good cause pursuant to 22 NYCRR 216.1 (a) in the Supreme Court, persuades this court that there is good cause to seal the records that would reveal the name change in this court.

Petitioner's prayer for relief seeks to have the former name redacted. However, in Surrogate's Court, the appropriate protection of the beneficiary is best achieved by redacting the new name and address from the probate petition and all associated documents in this case.^[FN2] In addition, the documents submitted in support of the motion to seal will be sealed.{**81 Misc 3d at 929} Therefore, it is ordered that the motion to seal the petition for probate and all supporting documents to protect the transgender beneficiary's identity is approved in that the relevant beneficiary's current name and address shall be redacted from all documents filed electronically, and petitioner shall provide non-redacted documents by mail to the Surrogate's Court to be held under seal; it is further ordered that the unredacted version of this decision and order is sealed.

"The court may grant relief, pursuant to a general prayer contained in the notice of motion or order to show cause, other than that specifically asked for . . . if the relief granted is not too dramatically unlike the relief sought, and if the proof offered supports it and the court is satisfied that no one has been prejudiced by the formal omission to demand it specifically." (Nehmadi v Davis, 95 AD3d 1181, 1184 [2d Dept 2012].)