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The Right To Refill, Senate Bill S. 6813 and an analysis of a plaintiff’s right to litigate anonymously.

By Anastasia M. McCarthy, Esq.

A pending bill was just introduced at the end of October 2019 that has some interesting implications on the restaurant industry.  In addition, there are new rulings on issues arising under the Child Victims Act—recently, out of New York County, the Court engaged in a multifactor examination of a plaintiff’s right to litigate anonymously.

October 28, 2019        THE RIGHT TO REFILL, Senate Bill S. 6813
Introduced and referred to Committee.

The Right to Refill Act was introduced and referred to the N.Y. State Senate Rules committee on October 28th. The Act amends the public health law and prohibits “any food establishment that serves beverages or food in a single-use container” from “refusing a reusable beverage or food container supplied by the customer[.]”

A “food establishment” is defined by the law as “a public place engaged in the preparation and service on the premises of food and open to the general public.”  A “reusable beverage container” is also expressly defined as “a bottle, mug, cup or other container that is designed and manufactured to hold beverages and is capable of multiple reuse.” Similarly, a “reusable food container” means “containers, bowls, plates, trays, cartons, cups, lids and other items that are designed and manufactured to hold food and capable of multiple reuse."  Receptacles made entirely of aluminum or polystyrene foam coolers and ice chests are expressly exempted from the definition of “disposable food service containers.”

Under the proposed law, employees of a food establishment may reject a container based on their own individual judgment that the receptacle is an improper size, dirty, or made of an improper material.  Employees are also obligated to dispense beverages “in a manner that prevents contact with or the contamination of beverage dispensing equipment” and/or package leftovers “in a manner that prevents contact with, or contamination of, the food-contact surfaces of the food serving equipment.” 

Food service establishments that serve beverages in single-use containers will be obligated to “conspicuously post” signs informing customers that “they are permitted to request the service of beverages in their own reusable containers.” Similarly, establishments serving food will be required to post signs stating that “the packaging of leftovers from partially consumed meals” may be done in the customer’s own reusable food containers.

 

November 14, 2019    ARK55 DOE v. Archdiocese of New York et al., ARK31 DOE v. Archdiocese of New York et al., ARK61 DOE v. Archdiocese of New York et al., ARK88 DOE v. Archdiocese of New York et al.
Supreme Court of New York, New York County

An analysis of a plaintiff’s right to litigate anonymously.

Plaintiffs in their respective Child Victims Act lawsuits moved the Court, by Order to Show Cause, for permission to proceed with their litigation anonymously.  Although the plaintiffs in each case were willing to share their identities with the defendants, they sought an Order from the Court requiring defendants to keep those identities confidential. One of the defendants argued that the request to keep plaintiff’s identity confidential constituted a due process violation.

Unsurprisingly, the Court granted plaintiffs’ application(s) in each action—what is unusual, however, is the lengthy analysis the Court conducted in arriving at its decision.  After a discussion of the statutory and common law justifications in allowing the victims of sexual assault to participate anonymously in legal proceedings, the Court walked through several factors that it found relevant in deciding to grant plaintiffs’ applications-(1) the claims were not raised against a municipal or governmental entity (“this case has not been brought against a government entity, a factor this court believes would militate in favor of the public’s right to know”) and (2) whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of a sensitive and highly personal nature.”

In applying the facts of each case, the Court held that, where a plaintiff is willing to privately disclose his or her identity to the adverse parties in an action (but does so confidentially), there is no violation of defendant’s due process rights.  Moreover, a grant of anonymity by the Court “impacts far less on the public’s right to open proceedings than does the actual closing of a courtroom or the sealing of records.”  Finally, quoting Aesop, the Court stated that the defendants do not enjoy the same entitlement to anonymity as that of a CVA plaintiff--“’the injuries we do and those we suffer are seldom weighted in the same scales.’ That principle applies here, where the legislature has codified specific protections for alleged victims of sexual assault that do not apply to alleged perpetrators of that abuse.”

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