Judicial Reports: LexPosition: The Strange Case of the Silent Seal

By Jim Edwards
jimedwards123@hotmail.com
Posted 09-03-08

A journalist litigant tries to get a judge to make a ruling. Any ruling.

Judges often infuriate litigants with rulings that go the “wrong” way, or with complicated precedents that confuse rather than clarify the law.

But what happens when a judge simply refuses to rule in any way at all?

That appears to be happening right now in Courtroom 242 of Manhattan State Supreme Court. There, Judge Ira Gammerman is sitting on a contract dispute that has gone nowhere on his docket since it was filed almost three years ago, in late 2005. I should know. I’m one of the litigants trying to persuade Gammerman to make some decisions.

In the three years since the complaint was filed, three motions have been fully briefed by the parties before Gammerman — including a motion to dismiss — and the judge has not ruled on any of them.


The plaintiff is a disgraced advertising agency executive who was convicted of white-collar corruption charges and sentenced to 70 months in prison. He claims that his former employer set him up for the rap, and thus owes him compensation. He’s acting pro se. Clearly, most of the suit, Mosallem v. Berenson, 115654/2005, is dead in the water.

The defendants — the executive’s former ad agency — moved to dismiss. They are represented by Davis & Gilbert and Skadden, Arps, Slate, Meagher & Flom. Their motion has been undecided since March 2006.

I am a third-party intervenor. I work for a magazine, Brandweek, that covers the advertising business. We’re interested in the case not for its legal merits but for the exhibits filed with the pleadings. We believe that even if the complaint lacks legal merit, the factual allegations are worth reporting. They include the claim that the ad agency engaged in “a global arrangement involving kickbacks, bid-rigging, discounts, and client over-billing in the form of cash, free work, and other benefits.”

That could be big news in the ad biz — my readers are the agency’s employees, managers, and clients.

So in 2006, when I learned of the suit’s existence, I got on the subway from my Astor Place office and walked into the courthouse to look at the case jacket. But the exhibits backing the complaint — dozens of internal agency memos allegedly describing the plot — were missing.

I got into the elevator and rode up to Gammerman’s court. His clerk told me the exhibits had been filed directly in the Judge’s chambers. I was not allowed to see them.

I returned to my office and faxed Gammeran a formal note requesting access. He responded by calling me on the phone. He was friendly and businesslike — just as one might hope a judge would be, but he delivered bad news. One of the defense lawyers in the case had indicated that there were documents they would like to keep confidential. The lawyer said he might make a motion to seal the documents.

“And,” Gammerman told me, “I said, ‘Don't bother, I'll keep them in chambers.’ ”

The Judge then said he would invite the parties to move to seal — and of course they immediately did.

The plaintiff opposed. And I, styling myself as a third-party intervenor, filed pro se papers also opposing the seal motion. The motion to seal was fully briefed by Christmas of 2006.


The rule at stake is straightforward: It’s 216.1 of the Uniform Rules for The New York State Trial Courts. If a judge wants to seal documents, the rule requires “a written finding of good cause, which shall specify the grounds thereof.” The case law suggests that the media need only show that there is some public interest in the matter for the court to be required to render findings. The media need not be admitted as full-blown parties to the case.

And yet . . . Judge Gammerman handed down no decision. The exhibit papers sat in limbo, hidden in his chambers. No ruling sealed them. Yet they remained sealed as a matter of fact.

Time passed. I left my magazine to take a sabbatical fellowship at Columbia University. A year later, I graduated. I got married. I returned to my magazine.

In January 2008, I ran into a former member of the Manhattan District Attorney’s Office who was familiar with Gammerman. He said I had nothing to lose, and that I should file yet another motion, styled as a “request for a ruling,” pointing out the need for a decision, favorable or otherwise. (He also opined that Gammerman’s inaction should be taken as an indicator that he had already ruled against me, which is why I had nothing to lose.)

The head-scratcher, he said, was that Gammerman was known as a “speed-freak” — a robe who scheduled early trial dates whether counsel was ready or not.


So I filed another motion in April 2008. It was fully briefed. Judge Gammerman now has one motion to dismiss, and two motions on rule 216.1, all fully briefed. And all undecided.

One can easily ignore all this as pro se nonsense. The courts are full of unlawyered litigants who can’t navigate the system. But if it’s so easily dismissed, why doesn’t the judge dismiss it? Besides, even though pro se litigants are irritating, it doesn’t mean they should receive second-class treatment at bar.

At some point, the court has a duty to hold its nose, do its job, and get to the merits.

This also points out a hole in the court rules. They don’t actually require a judge to make a ruling (perhaps because declining to rule is an unheard of act). They only state that all motions older than 60 days must be reported to the Administrative Judge.

Perhaps it’s time for a new rule. If so, let Gammerman’s performance in Mosallem v. Berenson be Exhibit A — unsealed.


Posted by Dirk on September 2, 2008 03:57 PM to Judicial Reports