"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
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
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,
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.
NY2d 115, 123 ) 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..."
. at 123).
Since the date
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
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] [C] [viii] [I] and § 405 [c][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
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
, 307 AD2d 676, 677 ; Flushing Natl. Bank v State of New
, 210 AD2d 294 , lv denied
86 NY2d 706 ). Here,
claimant's letter submitted in opposition to the instant motion states that "The
Dept. of Labor (NYS) told me
that they did not
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.
Accordingly, the defendant's motion is granted and the claim is dismissed as