New York State Court of Claims

New York State Court of Claims

GOSSELIN v. THE STATE OF NEW YORK, #2000-015-021, Claim No. 098840, Motion Nos. M-61100, CM-61182


Synopsis


There are no private causes of action available in the Court of Claims for money damages for violations of the Freedom of Information Law or the Personal Privacy Protection Law.

Case Information

UID:
2000-015-021
Claimant(s):
DINEEN M. GOSSELIN
Claimant short name:
GOSSELIN
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
098840
Motion number(s):
M-61100
Cross-motion number(s):
CM-61182
Judge:
FRANCIS T. COLLINS
Claimant's attorney:
John A. Nasto, Jr., EsquireBy: Michael B. Oshins, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 6, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


The motion of the defendant for an order granting it summary judgment dismissing the third and fourth causes of action set forth in the claim upon the ground that the Court lacks jurisdiction due to claimant's failure to serve and file a claim, or serve a notice of intention to file a claim, within 90 days of accrual is granted. The cross-motion of the claimant for an order pursuant to CPLR 3212 granting her summary judgment upon the liability issue upon all of the causes of action set forth in the claim is denied. Pursuant to CPLR 3212 (b) the Court grants summary judgment to the defendant dismissing the first, second, fifth and sixth causes of action set forth in the claim for failure to state causes of action recognized by the law of this State. In a claim filed on August 21, 1998, claimant alleges that she filed income tax returns with the State of New York for the years 1993, 1994 and 1995. It is asserted that Department of Taxation and Finance employees Ann Marie O'Grady, Dina Klein and Michelle Dearstyne, improperly accessed claimant's tax returns and divulged confidential information contained therein to Kathleen Olson, without claimant's consent, which Ms. Olson used to stalk and otherwise harass the claimant. In her notice of intention to file a claim received by the Attorney General on October 1, 1997, claimant stated that the claim arose during August of 1996 when her tax returns were improperly obtained by Ann Marie O'Grady.

The first cause of action in the claim alleges that the defendant's employees intentionally and wilfully violated claimant's right to privacy through the release of information protected by the Personal Privacy Protection Law. The second cause of action alleges that release of the information violated rights secured to the claimant by the Freedom of Information Law (FOIL). The third cause of action asserts that the conduct of the defendant was an intentional or wilful violation of the secrecy requirements of New York Tax Law § 697 (e). The fourth cause of action alleges that the defendant was negligent in failing to establish sufficient safeguards and procedures. The fifth cause of action alleges that the defendant breached an implied contract with the claimant by allowing confidential information contained in her tax returns to be disclosed. The sixth cause of action sets forth a claim that the State of New York intentionally inflicted severe emotional distress upon the claimant.

A trial term note of issue has been filed and the trial of this claim is scheduled to commence on November 2, 2000. The defendant has moved for summary judgment dismissing all of the causes of action set forth in the claim upon the ground that the notice of intention was not served within 90 days of accrual of the claim and the claim itself was not timely served. Claimant has cross-moved for partial summary judgment upon the liability issue upon all of the causes of action set forth in the claim based upon the conviction of Ann Marie O'Grady of four felony counts of computer trespass. Prior to reaching the merits of the defendant's motion or the claimant's cross-motion the Court will avail itself of the discretion set forth in CPLR 3212(b) to grant summary judgment to other than the moving party without the necessity of a cross-motion for that relief. When a party has moved for summary judgment upon a particular cause of action, the Court may grant summary judgment to the non-moving party dismissing that cause of action if the record before it discloses a lack of merit (City Wide Payroll Serv. v Israel Discount Bank of N.Y., 239 AD2d 537). The Court is exercising that discretion to sua sponte dismiss four of the causes of action contained in the claim for failing to state legal theories recognized by the courts of this State even though the defendant in its motion did not seek dismissal upon those grounds.

The first cause of action is premised upon a violation of article 6-A of the Public Officers Law, entitled "Personal Privacy Protection Law", which prohibits the disclosure of personal information gathered by State agencies except under specific circumstances. This Court agrees with the holding of Judge Bell in the case of Lawrence v State of New York, 180 Misc 2d 337, that there is no private cause of action against the State for the unauthorized dissemination of computer information in violation of the Personal Privacy Protection Law. Consequently, the first cause of action set forth in the claim fails to state a legally cognizable theory of recovery.

The second cause of action alleged in the claim seeks to recover money damages for a violation of a provision of the FOIL (Public Officers Law art 6). A violation of a provision of the FOIL does not give rise to a private cause of action to recover money damages in the Court of Claims (Warburton v State of New York, 173 Misc 2d 879). Therefore, the second cause of action in the claim must be dismissed for lack of merit.

The fifth cause of action alleges that the disclosure of claimant's confidential tax information breached an implied contract between the claimant and the State. In the Court's view, the facts of this case do not give rise to an implied contract. In particular, the Court agrees with the reasoning of Judge Rossetti set forth in Davis v State of New York, 84 Misc 2d 597, 599, 600, revd on other grounds 54 AD2d 126, as follows:
We shall initially discuss untimely filing. Claimant argues his claim is timely filed first because it should be deemed (in the alternative) as one for breach of an implied contract by the State not to reveal confidential records and thus governed by the six-month filing provisions of subdivision 4 of section 10 of the Court of Claims Act. The facts alleged do not support such a contract, either implied in fact or in law. For an implied in fact contract, there must be circumstances from which the inference of an agreement can be drawn (see, Davis v Caldwell, 1 AD2d 827). No such circumstances are disclosed here. The subject duty was a statutorily imposed one, not one agreed to by the parties. The fact a duty exists and is breached does not make a claim contractual since duty and breach are the essence of tort as well as contract actions. The nature and genesis of the duty determine the nature of the claim and here the duty is statutory, not contractual. As to any implied in law contract, we note this concept is an equitable one, not contractual, and is based on a legally imposed obligation to avoid unjust enrichment (see Bradkin v Leverton, 26 NY2d 192; Miller v Schloss, 218 NY 400.) Such enrichment is wholly absent here.
Here, the State's duty not to disclose claimant's confidential records arose from various statutes, not from any agreement it had with claimant. Consequently, there can be no contract implied in fact. Furthermore, since the State was in no way enriched by the disclosure, there can be no contract implied in law. The fifth cause of action does not state a legally cognizable cause of action.

The sixth cause of action proceeds upon an intentional infliction of emotional distress theory. The public policy of this State precludes the maintenance of a claim against the State of New York for the intentional infliction of emotional distress (Brown v State of New York, 125 AD2d 750; Liddell v State of New York, 182 Misc 2d 133; Yanicki v State of New York, 174 Misc 2d 149; Matter of V. v State of New York, 150 Misc 2d 156). The sixth cause of action must be dismissed for lack of merit.

The third cause of action in the claim alleges intentional and negligent conduct on the part of the State in permitting disclosure of the information contained in the claimant's tax returns in violation of Tax Law § 697 (e), and the fourth cause of action proceeds upon a negligence theory for failure of the State to have in place sufficient procedures to prevent the disclosure. Both causes of action are based upon an alleged breach of claimant's right of privacy. New York does not recognize a cause of action for breach of privacy, except under article 5 of the Civil Rights Law, which is not involved here (Crandall v Personal Mtge. Corp., 210 AD2d 981). An attempt to assert a breach of the right to privacy in the form of a traditional common law cause of action such as negligence or unjust enrichment will not be permitted (Grodin v Liberty Cable, 244 AD2d 153). Thus, it appears that neither cause of action states a viable theory of recovery. However, the Court does not reach that issue in view of the defendant's dismissal motion based upon the failure of claimant to file and serve a claim, or serve a notice of intention to file a claim, within 90 days of accrual.

Initially, the Court notes that the fourth and fifth affirmative defenses in the answer allege the jurisdictional defense with the requisite specificity (Flushing Natl. Bank v State of New York, 210 AD2d 294). The failure to comply with the time limitations set forth in Court of Claims Act § 10 deprives the Court of the jurisdiction to determine a claim (State of New York v Dewey, 260 AD2d 924). Court of Claims Act § 10 (3) requires that a claim premised upon a negligence theory be filed and served, or a notice of intention served, within 90 days of accrual or face dismissal (Villa v State of New York, 228 AD2d 930). The same time frame applies to a claim premised upon an intentional tort pursuant to Court of Claims Act § 10 [3-b] (Hernandez v State of New York, 144 AD2d 167). The 90 day time period begins to run from the date of the claim's accrual. A claim generally accrues when damages are ascertainable, not when the injured party discovers the wrongdoing (Flushing Natl. Bank v State of New York, 156 Misc 2d 979, affd 210 AD2d 294). The determinative issue is whether a claim was served and filed, or a notice of intention served, within 90 days of the accrual of the claim.

The affidavit of Victor J. Vasta offered in support of the dismissal motion establishes to the satisfaction of the Court that claimant's computer records were accessed by Ann Marie O'Grady, Michelle Dearstyne and Dina Klein on August 26, 1996. In her affidavit in opposition to the motion, claimant states that those three employees divulged confidential information from her tax return to Kathleen Olson during August of 1996. On September 12, 1996, claimant telephoned the Taxpayer Assistance Bureau to complain that Ann Marie O'Grady had accessed her personal income tax file and disclosed information to O'Grady's sister, Kathleen Olson. It is asserted in paragraph 7 of the claim that Kathleen Olson used that information to stalk claimant at her place of employment, to call claimant's residence repeatedly, and to harass claimant's boyfriend, Paul Olson. In her notice of intention to file a claim, claimant swears that her claim accrued during August of 1996. Yet, the notice of intention was not received by the Attorney General until October 1, 1997 and the claim was not received by the Attorney General until September 16, 1998 or filed with the Clerk of the Court until August 21, 1998. Clearly, neither the notice of intention nor the claim was served within 90 days of the August, 1996 accrual date identified by claimant in her notice of intention. In order to avoid dismissal, claimant argues that her time to serve a notice of intention, or serve and file a claim, should be measured from when she first discovered the full extent of the wrongdoing by Ann Marie O'Grady, which was on August 20, 1997 when she was informed by Mr. Vasta that the State's investigation was complete. As stated earlier in this decision, the discovery rule for the accrual of a claim has been rejected in this State (Conner v State of New York, ____ AD2d ____, 701 NYS2d 481). Consequently, the third and fourth causes of action set forth in the claim must be dismissed for lack of jurisdiction.

The final issue to be addressed is the request contained in the affidavit of claimant's counsel for permission to file a late claim. The Court of Claims lacks authority to grant late claim relief under Court of Claims Act § 10 (6) when the applicable Statute of Limitations set forth in article 2 of the CPLR has expired (Berger v State of New York, 171 AD2d 713). Here, both the one year Statute of Limitations set forth in CPLR § 215 (3) applicable to a violation of a right of privacy cause of action and the three year Statute of Limitations set forth in CPLR § 214 (5) for negligence claims expired prior to the making of the cross-motion containing the request for late claim relief. As a result, the Court lacks the discretion to grant late claim relief.


April 6, 2000
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:

  1. Notice of motion dated January 20, 2000;
  2. Affidavit of Dennis M. Acton sworn to January 20, 2000 with exhibits;
  3. Notice of cross-motion dated February 7, 2000;
  4. Affidavit of Michael B. Oshins sworn to February 7, 2000, with exhibit;
  5. Affidavit of Dineen M. Gosselin sworn to February 7, 2000;
  6. Reply affidavit of Dennis M. Acton sworn to February 11, 2000.