VALERIANO v. ROME SENTINEL COMPANY

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Supreme Court, Appellate Division, Fourth Department, New York.

Alfred A. VALERIANO, Plaintiff-Appellant, v. ROME SENTINEL COMPANY, Defendant-Respondent.

Decided: September 28, 2007

PRESENT:  HURLBUTT, J.P., MARTOCHE, SMITH, LUNN, AND PERADOTTO, JJ. Durr and Keinz, Esqs., Utica (Donald E. Keinz of counsel), for Plaintiff-Appellant. McMahon and Grow, Rome (Julie Grow Denton of counsel), for Defendant-Respondent.

 Plaintiff commenced this action alleging that defendant wrongfully published his name, address, date of birth and Social Security number in its daily newspaper along with information concerning 12 other individuals in connection with their alleged involvement in an illegal sports gambling operation.   Supreme Court properly granted defendant's preanswer motion to dismiss the complaint for failure to state a cause of action (see CPLR 3211[a][7] ).   The complaint does not state a valid cause of action for violation of Civil Rights Law § 50 because the information was published by defendant in a “newsworthy article” and was not used for advertising or trade purposes (Messenger v. Gruner + Jahr Print. & Publ., 94 N.Y.2d 436, 441, 706 N.Y.S.2d 52, 727 N.E.2d 549;  see generally Walter v. NBC Tel. Network, Inc., 27 A.D.3d 1069, 1070, 811 N.Y.S.2d 521, lv. denied 7 N.Y.3d 703, 819 N.Y.S.2d 870, 853 N.E.2d 241).   Further, the complaint does not state a valid cause of action for negligence.   Defendant is not a government or private entity with a statutory, contractual or fiduciary duty to protect the confidentiality of plaintiff's personal information, and plaintiff's purported negligence cause of action is thus “the functional equivalent of a common-law privacy tort” (Madden v. Creative Servs., 84 N.Y.2d 738, 747, 622 N.Y.S.2d 478, 646 N.E.2d 780), a tort not recognized in New York (see Messenger, 94 N.Y.2d at 441, 706 N.Y.S.2d 52, 727 N.E.2d 549;  see generally Howell v. New York Post Co., 81 N.Y.2d 115, 122-124, 596 N.Y.S.2d 350, 612 N.E.2d 699).   Indeed, the failure to dismiss plaintiff's negligence cause of action would result in the “circumvent[ion of] established privacy law” (Madden, 84 N.Y.2d at 747, 622 N.Y.S.2d 478, 646 N.E.2d 780).   Plaintiff contends for the first time on appeal that the complaint states a cause of action for intentional, reckless or negligent infliction of emotional distress, and we therefore do not consider that contention (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: