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Tenant Privacy & Landlords: Social Security Number

NYC Rent Regulation: Rent Control/Rent Stabilized, DHCR Practice/Procedures

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Re: Tenant Privacy And Landlords: Social Security Numbe

Postby Anna » Mon Apr 25, 2005 9:29 am

Meyerson, psrt 2:

Consumer Protection Statutory Claim

Plaintiff seeks relief upon the claim that her landlord's request for her social security number constitutes a violation of New York's consumer protection statute (GBL § 349 [h]), upon the allegation that her landlord deceptively represented that she was required by law to provide personal and confidential information, including her birth date and social security number, in order to secure a renewal lease and to avoid eviction. A prima facie case of deceptive practices pursuant to GBL § 349 requires a showing that defendants' acts are directed to consumers, that they are deceptive or misleading in a material way and that plaintiff has been injured thereby (Zurakov v. Register.Com, Inc., 304 AD2d 176 [1st Dept. 2003], citing Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 NY2d 20, 25-26 [1995]).

To elaborate upon the facts, in September of 2003, the landlord sent a renewal lease with a letter directing her to complete and execute a form which required such information in relation to each occupant of plaintiff's apartment. The form stated it was "In accordance with New York City Administrative Code, Section 27-705 (c)" and that "Failure to reply is grounds for eviction." The included "Lease Renewal Instructions" stated that all enclosed forms "must be signed if you would like to renew your lease for your apartment. You must completely sign and enter all information requested." Plaintiff alleges that the landlord routinely sends the same forms to all rent-regulated tenants in the buildings it owns or manages.

Upon receiving the lease renewal packet, plaintiff sought legal advice as to whether she was required to complete the affidavit and provide all information demanded. The landlord refused to withdraw the demand for information.

The landlord baldly asserts that it is entitled to demand disclosure of the plaintiff's social security number, urging such demand is specifically authorized by applicable laws. Landlord relies on Administrative Code of the City of New York § 27-2075 (c), which relates to maximum permitted occupancy of an apartment. The provision states, in relevant part, that "[o]n written demand ...by the owner when he or she rents a dwelling unit or any time thereafter, the tenant shall submit an affidavit setting forth the names and relationship of all occupants within the dwelling unit and the ages of any minors." By its plain language, the Code provision relied upon by defendants does not authorize a demand for social security numbers of apartment occupants, or for the birth dates of all adult occupants.

Further, to the extent landlord's forms could be understood as threatening eviction for noncompliance, such threat must also be viewed as inaccurate since courts have held that a tenant cannot be evicted for noncompliance with section 27-2075 of the Administrative Code (Tabak v. Pinzon, NYLJ, 3/18/99, p. 30, col. 4 [Civ. Ct. NY Co.], "mere non-response to a Demand Notice alone is an insufficient basis to evict a rent controlled tenant"; 338 West 17th St. Assoc. v. Katehis, NYLJ, 10/5/94, p. 22, col. 2 [Civ. Ct. NY Co.], noting that "Housing Maintenance Code was enacted to protect tenants from substandard tenements and housing conditions which were clearly a threat to the very lives and health of the occupants," and "[w]hile landlords have an affirmative duty to investigate conditions at their buildings and ensure that the buildings meet the [*7]legal standards, the Code was never intended to be used as a sword by a landlord who seeks to evict low rent tenants who have not been proven to be a danger to the building"). Despite defendants' protests, a plain English reading of the form tendered leads to a reader's reasonable conclusion that failure to provide the information demanded is grounds for eviction and non-renewal of a lease.


Nor do defendants advance any other showing of a right to obtain social security numbers of occupants of the apartments. This unit is not one in which the tenant receives governmental benefits (see, e.g., Waterside Redevelopment Co. LP v. Department of Housing Preservation and Development, 270 AD2d 87 [1st Dept. 2000], lv app denied 95 NY2d 765 [2000], income inquiry for tenants of City-Aided Limited Profit Housing Companies under Article 2 of the Private Housing Finance Law). The landlord has not initiated a luxury decontrol inquiry under the Rent Stabilization Law, which would not entitle it to social security information in any event (Administrative Code of the City of New York § 26-504.1; Shapiro v. New York State Div. of Housing and Community Renewal, NYLJ, p. 28, col. 4, 4/8/98 [Sup. Ct. NY Co., Tolub J.], aff'd, 262 AD2d 18 [1st Dept. 1999], aff'd as modified sub nom Elkin v. Roldan, 94 NY2d 853 [1999], "As the tax department advised the Governor in his July 7, 1993 letter, 'the Tax Law prohibits use of tax return information for nontax purposes' and '[u]nder federal law, social security numbers cannot be used for the purpose of denying rent control to high-income tenants through the matching program envisioned by the bill' (Commissioner's letter in Governor's Bill Jacket, Laws of 1993, Chapter 253)", which means verification is by name and address only. It can also be noted that this same confidential treatment of social security numbers is respected in the course of summary landlord-tenant proceedings (see Cambridge Development, LLC. v. McCarthy, 2003 WL 22798957 [NY City Civ. Ct., Lebovits, J.], permitting tenant to redact social security numbers from documents produced in nonprimary-residence summary proceedings).

Accordingly, there is no legal support for the form's instructions that tenants "must" complete the affidavit nor to the claim the defendants' demands were authorized by law. Because a "deceptive act or practice" under the consumer protection statute is a representation or omission "likely to mislead a reasonable consumer acting reasonably under the circumstances" (Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, supra, 85 NY2d at 26, the landlord's form clearly is deceptive..

Defendants then maintain that plaintiff has not shown injury, which is required by GBL § 349 (h), which permits "any person injured by reason of a violation" of the statute to bring an action to enjoin the unlawful act or practice and/or an action to recover actual damages or $50.00. Defendants argue plaintiff alleges no actual damages, other than anxiety and distress, as well as pre-litigation attorney's fees which appear to be an item of pecuniary damage separate and apart from the costs of litigation. The court determines the pleading is proper in form and sufficient under the statute. As stated in relation to another consumer fraud claim, Goshen v. Mutual Life Insurance Company of New York, 98 NY2d 314, 326 (2002), on this motion to dismiss, "the pleadings are necessarily afforded a liberal construction" and a plaintiff accorded "the benefit of every possible favorable inference" (citation omitted). Accordingly, this branch of the motion is denied with leave to renew after amplification of the pleading or discovery.

Further, it cannot be doubted that a privacy invasion claim and an accompanying [*8]request for attorney's fees may be stated under GBL § 349 based on non-pecuniary injury, such as deprivation of the right to maintain the privacy of medical records (see Anonymous v. CVS Corp., 188 Misc 2d 616 [Sup. Ct. NY Co. 2001], grant of class certification affirmed 293 AD2d 285 [1st Dept. 2002]; see also Remsburg v. Docusearch, Inc., 149 N.H. 148, 816 A.2d 1001 [2003], under New Hampshire consumer fraud statute, invasion of privacy claim against investigator was proper). Declaratory relief may well be appropriate for a case such as this one, which presents an instance of an actual and justiciable case or controversy, affecting the rights of the parties on both sides (see 43 NY Jur.2d Declaratory Judgments and Agreed Case § 18; Bartley v. Walentas, 78 AD2d 310 [1st Dept. 1980], purpose of declaratory action "is to serve a practical end 'in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations'"; see also Martinez v. Classic Realty LLC, NYLJ, 5/21/2003, p. 18, col. 1, [Sup. Ct. NY Co., Abdus-Salaam, J.], landlord demand similar to that in instant case withdrawn, tenant's claim for declaratory relief could proceed).

The belated objection that plaintiff lacks a proper claim under GBL § 349 because the defendants' activity was not directed to the "public at large," is not properly before the court because raised only in reply papers(see Dannasch v. Bifulco, 184 AD2d 415, 417 [1st Dept. 1992]). The court observes that plaintiff pleads that defendants own and manage a substantial number of rent-regulated apartments, and use the challenged forms for all lease renewals, so that the dispute is not simply a private contract dispute and generally claims involving residential rental units are a type of claim recognized under the statute (see Lozano v. Grunberg, 195 AD2d 308 [1st Dept. 1993], tenant stated claim under GBL § 349, based on landlord's issuance of deceptive dispossess notices based on late rent payments; 23 Realty Associates v. Teigman, 213 AD2d 306 [1st Dept. 1995], Department of Consumer Affairs has given notice that the offering of rental housing is a legitimate area of interest for consumer protection against deceptive advertising and misrepresentation; Frazier v. Priest, 141 Misc 2d 775 [City Ct. Jefferson Co. 1988], GBL § 349 applies to the landlord-tenant relationship). The defendants' point to no legislative intent indicated that those engaged in the residential real estate business are exempt from compliance with the consumer protection laws (see Karlin v. IVF America, Inc., 93 NY2d 282 [1999], a "blanket exemption for providers of medical services and products is contrary to the plain language of the statutes").

Accordingly, the motion to dismiss is denied.

Conclusion

Given that this debate raises an issue of first impression, the requests for sanctions raised by both parties are denied.

Defendants' motion to dismiss is denied. As to defendant Greystar, such denial is without prejudice to renewal following discovery.[FN6] In relation to the monetary damages cause of action, [*9]such motion is denied without prejudice to renewal following amplification of the pleadings or discovery. The court can proceed no further on the merits of the claim given that defendants have not yet answered.

This decision constitutes the order of the court.

Dated: February 28 , 2005

______________________________

J.S.C.
Footnotes

Footnote 1:The term "authorized person" means an officer or employee of any political subdivision of a State, or agency of a political subdivision of a State, and any other person, officer or employee thereof, who has or had access to social security account numbers or related records, as defined by 42 U.S.C. § 405 (c)(2)(c)(viii)(III).

Footnote 2:The Privacy Act also provides "[i]t shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose [the individual's] social security account number" (5 U.S.C. § 552 [7][a][b][11]; see McKay v. Altobello, 1997 WL 266717 [E.D. La. 1997], voter registration denied after refusal to provide mother's maiden name and Social Security number, determinated to violate section 7 of the Privacy Act).

Footnote 3:In Arakawa v. Sakata, 133 F. Supp. 2d 1223, 1229-1230 (D. Haw. 2001), the court reviewed the lower court decisions preceding the 2000 decision in Condon v. Reno, supra, and the few scattered decisions finding social security numbers were not confidential in the face of certain governmental interests. The court concluded "that there is a constitutional right to privacy in the information released about Plaintiff in this case, specifically his SSN" (133 F.Supp.2d at 1229). See also Flavio L. Komuves, We've Got Your Number: An Overview of Legislation and Decisions to Control the Use of Social Security Numbers as Personal Identifiers, 16 J. Marshall J. Computer & Info. L. 529, 561-65 (1998), A. Michael Froomkin, The Death of Privacy?, 52 Stan. L. Rev. 1461 [2000], Elbert Lin, Prioritizing Privacy: A Constitutional Response to the Internet, 17 Berkeley Tech. L.J. 1085 [2002], and Clifford S. Fishman, Technology and the Internet: The Impending Destruction of Privacy by Betrayers, Grudgers, Snoops, Spammers, Corporations, and the Media, 72 Geo. Wash. L. Rev. 1503 [2004]).

Footnote 4:There are rare cases in which the government determines that disclosure is appropriate and such situations must be justified by a clear government interest which prevails in a balancing test. For example, in In re Crawford, 194 F.3d 954 (9th Cir. 1999), cert. denied sub nom Ferm v. U.S. Trustee, 528 U.S. 1189 (2000), a lay preparer of bankruptcy petitions objected to a statutory requirement of 11 U.S.C.A. § 110 (c)(1) that he place his identifying social security number on court papers. The Ninth Circuit recognized a right of informational privacy in relation to a social security number, which was a conditional right to weighed against the governmental interest (194 F.3d 959). It opined that the threat of identity theft was not an immediate harm, but one remote in time and place and to be undertaken by a non-governmental actor and that unlike disclosure of HIV status, sexual orientation, or genetic makeup a social security number "is not inherently sensitive or intimate information, and its disclosure does not lead directly to injury, embarrassment or stigma" (194 F.3d 959-960). It held a sufficient justification for the requirement could be found in the legislative purpose and bankruptcy's special interest in public access to judicial proceedings (194 F.3d at 960).

Footnote 5:In relation to the Restatement standard quoted, tort claims relating to social security numbers notwithstanding that social security numbers are found to be private information and confidential generally are found insufficient because either there is a failure of proof of distribution to the public at large or the information is not regarded as derogatory (Bodah v. Lakeville Motor Express, Inc., 649 N.W.2d 859, 862-63 [Minn. App. 2002], rev'd on other grounds 663 N.W.2d 550 [Minn. 2003], social security numbers are confidential and private, but "are not on their face revealing, compromising[] or embarrassing"; Phillips v. Grendahl, 312 F.3d 357 [8th Cir. 2002]; Busse v. Motorola, Inc., 351 Ill.App.3d 67, 813 N.E.2d 1013, 286 Ill.Dec. 320 [Ill. App. 1st Dist. 2004]; see also Lora M. Jennings, Paying the Price for Privacy: Using the Private Facts Tort to Control Social Security Number Dissemination and the Risk of Identity Theft [Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550 [Minn. 2003], 43 Washburn L.J. 725 [Spring 2004]).

Footnote 6:Defendant Greystar-Prime Management ("Greystar"), seeks dismissal on the grounds that it is not a proper party, based on documentary evidence showing it has no contractual relationship to plaintiff, and is not the owner or manager of the premises (motion, exhibits B and C). Plaintiff responds that dismissal is premature prior to discovery, arguing that Greystar is the entity that issues rent invoice demands, and with which she communicates concerning the apartment. Greystar's motion to dismiss is denied at this time.
Anna
 
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Re: Tenant Privacy And Landlords: Social Security Numbe

Postby Concourse » Mon Apr 25, 2005 11:15 am

Originally posted by Anna:
[b]To elaborate upon the facts, in September of 2003, the landlord sent a renewal lease with a letter directing her to complete and execute a form which required such information in relation to each occupant of plaintiff's apartment. The form stated it was "In accordance with New York City Administrative Code, Section 27-705 (c)" and that "Failure to reply is grounds for eviction." The included "Lease Renewal Instructions" stated that all enclosed forms "must be signed if you would like to renew your lease for your apartment. You must completely sign and enter all information requested." Plaintiff alleges that the landlord routinely sends the same forms to all rent-regulated tenants in the buildings it owns or manages.

Upon receiving the lease renewal packet, plaintiff sought legal advice as to whether she was required to complete the affidavit and provide all information demanded. The landlord refused to withdraw the demand for information.
And then what? The tenant lawyer said, "Let's sue!"???

If it wuz me, I would have filled out the form--after all, the LL has a right to the names of occupants of my apartment--and leave out the social security number. Then the landlord would have to go to a lawyer and say, "hey lawyer, can I sue for eviction because my RS tenant won't give me his social security number?"

That puts the ball in their court. Then they have a decision to make. Either the landlord lawyer would plunge ahead or not at this point. If not, I win, and that's that. If he is wacky enough to sue over a Social Security number, THEN I hire a lawyer.

By the way, this case is still continuing. This was a motion to dismiss, not a decision on the case itself. By no means certain yet that an award of lawyer fees will be granted to the tenant here.
A stupid landlord is a joy to behold.
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Re: Tenant Privacy And Landlords: Social Security Numbe

Postby queensborough » Tue May 10, 2005 1:39 pm

Who has the right to ask for your social security number? According to the Social Security Administration, anyone can ask, but very few entities can actually demand it...motor vehicle depts., tax depts., welfare depts. any thing tax related...banks, brokerages and employers. Thats it. Giving your SS# is voluntary. No one else has a legal right to your social security number. There is a law that prohibits a business from asking for your SS#. Ask if they will accept an alternative form of identification, but they can refuse, like when you want to open a credit card account. Never give your SS# to a doctors office. They don't need it either. Social Security exists for the purpose of tracking earnings and paying benefits.
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Re: Tenant Privacy And Landlords: Social Security Numbe

Postby MikeW » Wed May 11, 2005 12:47 pm

This case is based on a LL asking an existing tenant for there SSN. Since the tenant is regulated, there's nothing the LL can really deny the tenant, if the tenant refuses to give them their SSN.

However, if prospective tenant refused to give the landlord their SSN, it is likely the landlord would refused to rent to that person.
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