New York State Court of Claims

New York State Court of Claims

LOEWKE v. THE STATE OF NEW YORK, #2009-015-183, Claim No. 114416, Motion No. M-76473


Synopsis


Claim alleging the unauthorized disclosure of his Social Security number was dismissed as untimely.

Case Information

UID:
2009-015-183
Claimant(s):
DANIEL F. LOEWKE
1 1.By Order dated January 17, 2008 the caption of this claim was amended sua sponte to reflect the only properly named defendant.
Claimant short name:
LOEWKE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
By Order dated January 17, 2008 the caption of this claim was amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114416
Motion number(s):
M-76473
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Daniel F. Loewke, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 30, 2009
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant moves for dismissal of the claim pursuant to CPLR 3211 (a) (2), (7) and (8) on the grounds that the claim was untimely served and fails to state a cause of action. Claimant alleges the following in his claim:
"2. This claim arises from the acts or omissions of the defendant. Details of said acts or omissions are as follows: Defendant, without claimant's permission divulged personal information and social security number to JP Morgan EFS, 3800 Citibank Center Tampa, Tampa, FL 33610 thereby subjecting claimant to loss of privacy and potential misuse of identity.

3. The place where the acts took place are; NYS Department of Labor, and JP Morgan EFS.

4. The claim accrued on or about the 24th day of August 2007.

5. The claim is served and filed within 90 days of accrual" (defendant's Exhibit A).

In support of its motion for dismissal, the defendant submits an affidavit from Carl N. Boorn, the Director of Unemployment Insurance Benefit Operations for the New York State Department of Labor (DOL). Mr. Boorn oversees the administration of unemployment insurance benefits and, as such, avers that he is familiar with the policies and procedures relating to the processing of claims for unemployment benefits. He states in his affidavit that effective September 10, 2006, DOL stopped issuing paper checks and began utilizing a Direct Payment Card, similar to a bank debit card, to be used by benefit recipients to access their benefits. Based upon information supplied by the claimant and DOL records, Mr. Boorn asserts that claimant applied for benefits by telephone in January 2007. Claimant was determined to be eligible for benefits and was sent a debit card. Mr. Boorn states that claimant received statements of his account beginning in early February 2007 and that the statements reflect weekly deposits of unemployment benefits into an account at J. P. Morgan Chase Bank, N.A. According to Mr. Boorn "[s]ometime thereafter, [claimant] apparently asked Chase for payment of his benefits in full, and, on August 24, 2007, he was issued a check in the amount of $10,517.50, the total amount of benefits paid, less the bank's fee of $12.50 for issuing a paper check" (defendant's Exhibit B, ¶ 7).

Claimant appears to allege a claim for a violation of his "right to privacy". It was noted by the Court of Appeals in Howell v New York Post Co. (81 NY2d 115, 123 [1993]) that while other states have recognized so called " 'privacy torts' " under the common law, "in this State the right to privacy is governed exclusively by sections 50 and 51 of the Civil Rights Law..." (id. at 123).[2] Since the date Howell was decided, however, the New York legislature enacted General Business Law § 399-dd entitled "Confidentiality of social security account number", which prohibits the intentional disclosure of an individual's social security number to the general public and provides for the imposition of civil penalties.[3] Federal statutory provisions governing the disclosure of an individual's social security number include the Privacy Act of 1974 (5 USC § 552a) and the Social Security Act (42 USC § 405 [c][2] [C] [viii] [I] and § 405 [c][2][C][i]). Whatever the applicability of these statutory provisions to the State, it is clear that the claimant's cause of action is statutory in nature and the timeliness of the claim must be measured by the provisions of Court of Claims Act § 10 (4) (see generally Clauberg v State of New York, 19 Misc 3d 942, 948 [2008]).

Court of Claims Act § 10 (4) permits a claim to be served and filed within six months following the date of accrual unless a notice of intention is served within that time. Generally, a claim accrues for the purposes of the Court of Claims Act when damages are reasonably ascertainable (Bullard v State of New York, 307 AD2d 676, 677 [2003]; Flushing Natl. Bank v State of New York, 210 AD2d 294 [1994], lv denied 86 NY2d 706 [1995]). Here, claimant's letter submitted in opposition to the instant motion states that "The Dept. of Labor (NYS) told me that they did not know how the State of N.Y. got away with starting accounts without authorization " (emphasis in original). Thus, the claim accrued, at the latest, on or about March 1, 2007 when the claimant's damages, if any, were ascertainable. The claim served on October 1, 2007 but not filed with the Court until October 29, 2007 is therefore untimely.[4]

Accordingly, the defendant's motion is granted and the claim is dismissed as untimely.



June 30, 2009
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 March 31, 2009;
  2. Affirmation of Michael T. Krenrich dated March 31, 2009 with exhibits;
  3. Letter from Daniel Loewke dated April 7, 2009.

[2]. By its express terms Civil Rights Law § 50 prohibits the use of "the name, portrait or picture of any living person" for the purposes of advertising or trade and is therefore inapplicable to the allegations made in this case.
[3]. The statute was not effective until January 1, 2008, subsequent to the date the instant claim accrued, and exempts from its ambit "the state [and] its political subdivisions".
[4]. Defendant raised as its fourth defense in its answer that the claim was untimely.