Claimant’s motion for discovery and inspection and defendant’s cross motion for dismissal of the subject claim, having been heard jointly, are both considered in this memorandum opinion.
The claim herein is basically for damages arising from the Department of State’s release of confidential information to claimant’s former employer, in violation of CPL 720.35.
On July 1, 1972 Donnie Davis was arrested for a felony, but was found eligible for youthful offender treatment and so adjudicated on November 28, 1972. Under CPL 720.35, all official records and papers relating to a youthful offender case are confidential and are not to be made available to anyone (other than an institution where the offender is committed or an appropriate probation department), except where specifically required or permitted by statute, or upon specific court authorization. Subsequently, on or about September 17, 1974, Mr. Davis was hired as a guard by the Burns Detective Agency (hereinafter "Burns”). Thereafter, by letter dated October 18, 1974, the State Division of Licenses notified Burns of claimant’s 1972 felony arrest. Said division was apparently acting pursuant to subdivision 6 of section 81 of the General Business Law, which requires the Secretary of State to compare the fingerprints of an employee of a licensed private detective or investigator with the Department of Correction’s division of criminal identification and to notify said employer of "any record affecting such prints”. Claimant was consequently fired by Burns on October 23, 1974.
On the same day he was fired, Mr. Davis applied for unemployment compensation. The Unemployment Insurance
With respect to the State’s dismissal motion, the grounds stated therefor are (1) lack of subject matter jurisdiction (CPLR 3211, subd [a], par 2), (2) failure to state a cause of action (CPLR 3211, subd [a], par 7) and (3) failure to timely file the claim (Court of Claims Act, § 10, subd 3). Apparently, grounds (1) and (2) include three distinct arguments. First, the act of releasing the confidential information was a quasi-judicial one as to which the State has not waived its sovereign immunity. Second, claimant should have brought an article 78 proceeding against the State Department to quash his arrest record prior to suing in the Court of Claims. Third, as to claimant’s loss of unemployment benefits, his remedy was an administrative appeal under article 18 of the Labor Law. The remaining ground, untimely filing, is premised on the contention the claim accrued when claimant was fired by Burns on October 23, 1974 and his claim should have been filed within 90 days thereafter.
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,
The pith of the subject claim is liability for violation of a statute. It has characteristics analogous to libel, but its genesis is purely statutory. The duty imposed (not to disclose) would not exist but for the statute (see Shepard Co. v Taylor Pub. Co.,
The second and principal argument of claimant is that even if governed by the 90-day filing requirement, the instant claim should not be deemed to accrue until claimant discovered it— i.e., until he discovered the State released the confidential information (Jan. 22, 1975). This argument has logic, equity and justice on its side, but unfortunately it does not appear to be the law of New York. A cause of action is deemed to accrue generally when the wrongful act occurs, or, at the latest, when damages accrue. (See Schwartz v Heyden Newport Chem. Corp.,
It should be noted that some lower court cases subsequent to Flanagan have attempted to effect a limited expansion of the discovery rule promulgated therein (see Dobbins v Clifford,
The court therefore finds the instant claim accrued when the Department of State released the information on or about October 18, 1974. (Munzer v Blaisdell,
Our inquiry does not end here, however, since claimant’s attorney requests that his answering affidavit be treated alternatively as an application pursuant to subdivision 5 of section 10 of the Court of Claims Act. This subdivision allows the court, in its discretion, to permit a claim to be filed late provided it is shown: (a) a reasonable excuse exists for failure to timely file; (b) the State had actual knowledge of the essential facts of the claim prior to the expiration of the filing period; and (c) there is no substantial prejudice to the State due to the failure to timely file. Based on the attendant facts, we find these requirements to have been met.
The malfeasance for which claimant is suing is the release of the confidential information and he did not learn of that release until after the expiration of the 90-day period. Such lack of knowledge constitutes a reasonable excuse. (See Callanan v State of New York,
Since the release of the information was the wrongful act
The State has made no claim of prejudice and in view of the minimal delay in filing (one month) and the fact the act complained of was committed by the State itself, we discern no apparent prejudice. Also, the essential elements of the claim would seem to be in records and correspondence in the defendant’s possession. Thus the three above-noted requirements of subdivision 5 have been satisfactorily shown.
We also reject defendant’s contention that claimant has failed to show a meritorious cause of action (see Munzer v Blaisdell,
The other points raised by defendant are not substantial. The release of information here was not a quasi-judicial act as to which the State is immune from liability. The State’s checking of claimant’s record and notifying his employer was done pursuant to a mandatory statutory duty. (See Foley v State of New York,
Further, the Court of Appeals has recently indicated the quasi-judicial exception to the State’s waiver of immunity will not be extended to intentional torts. (See Jones v State of New York, supra, at p 279.) Obviously, this court can make no determination relative to the instant claim (such is properly left for trial), but it would seem an analogy could be drawn between intentional torts and intentional violations of an individual’s statutory rights. We fail to see how it can be legitimately argued that the State has the "discretion” to violate the law. Such a position simply cannot be countenanced.
As to defendant’s contention that claimant should have instituted an article 78 proceeding to quash his criminal record, we fail to see its relevance. The subject records were confidential (prior to the State’s action) and thus there should be no need to also have them expunged. Moreover, it would
Finally, defendant’s position that claimant’s proper remedy with respect to the loss of unemployment benefits is an administrative appeal is weakened by the above-noted fact such loss is not a proper element of damage, but really an item in mitigation of damages (see p 602, supra). Apparently, it is claimant’s position that the loss of benefits was a consequence flowing from the original wrongful act of releasing the confidential information. He is thus not suing for the denial of benefits per se, but rather as an occurrence proximately related to and caused by the said wrongful act. On the record before us we fail to see the validity of such relationship and causality, but again this is a matter better determined by the trier of the facts after a full exposition of the evidence.
Accordingly, the only ground for dismissal we find valid is untimely filing. However, we also find claimant has satisfied the requirements of subdivision 5 of section 10 of the Court of Claims Act and, under the discretion granted us therein, we direct the subject claim be deemed timely filed as of February 26, 1975. The State’s cross motion is therefore denied.
As to claimant’s motion for discovery and inspection, the State has failed to indicate any objection thereto and claimant’s moving papers reveal sufficient facts to satisfy the requirements of CPLR 3120. Also, the items requested are generally proper ones for discovery, although certain aspects of claimant’s application are overly broad. Discovery should be limited only to items deemed relevant to the subject claim. We therefore grant claimant’s motion but limit it to the extent set forth in the order accompanying this opinion.
Notes
. We are aware the analogous case of Munzer v State of New York (supra) found accrual to be on discovery (ibid., at pp 103, 104), but in view of our discussion above and the Appellate Division affirmance of Munzer v Blaisdell (supra) we deem ourselves bound by the rule set down in the latter case.
. Also, claimant’s filing of his claim was more than 90 days after his firing so, even if accrual were deemed to occur on such later date, it would not aid claimant.
. The clear intent of this section, and of the entire statutory regulation of private detectives and investigators, is to protect the public by excluding convicted felons (and persons convicted of analogous offenses) from the above occupations. Thus we must construe the phrase "any record” in subdivision 6 of section 81 of the General Business Law to mean any record of a criminal conviction. In any event, following the general rule of statutory construction that the more recent and more specific statute takes precedence over an older and more general statute-, any inconsistency between section 81 of the General Business Law and CPL 720.35 must be resolved in favor of the latter.