Hines v. MicroBilt Corp.

The following papers were read on this motion: Summons and complaint Defendants’ motions to dismiss Plaintiff’s opposition Plaintiff’s reply in opposition MicroBilt Corporation’s memorandum of law DECISION AND ORDER Upon the foregoing papers, and having heard oral argument, It is hereby ORDERED that the within motion is determined as follows: Plaintiff commenced this action by summons and complaint alleging causes of action against Defendants MicroBilt Corporation (“MicroBilt”) and Transunion Interactive, Inc. (“Trans Union”)¹ due to the sale by MicroBilt of Plaintiff’s credit information to another entity, Bloomingdale Road Judgment Recovery (“Bloomingdale”). MicroBilt is what is known as a reseller; they obtain information from reports not only from Trans Union but from the other two major credit reporting companies, Equifax and Experian, and add in information from other sources. Although Plaintiff did not identify Bloomingdale as the purchaser of the credit information from MicroBilt, it was ascertained from a review of papers filed in an action in the U.S. District Court for the Eastern District of New York captioned Hines v. Kreiter d/b/a Bloomingdale Road Judgment Recovery, No. 1:21-cv-04840-HG-LB.² In his complaint, Plaintiff alleged that he sustained damages due to said sale of his credit information by Trans Union to MicroBilt, and by MicroBilt to Bloomingdale. On or about October 17, 2018, Plaintiff placed a security freeze on his consumer credit reports. Plaintiff alleged that on October 14, 2019 and October 30, 2020, information about him obtained from his credit report was disseminated without authorization to Bloomingdale. Plaintiff’s causes of action alleged negligence, unjust enrichment, violations of New York General Business Law §899 et seq. and New York General Business Law §349 et seq., and negligence per se. Defendants move to dismiss pursuant to CPLR 3211 (a) (3) (lack of capacity to sue) and (7) (failure to state a cause of action). Defendants assert that any state law claims concerning the complained of transaction are pre-empted by the federal Fair Credit Reporting Act (“FCRA”). They also assert that the state law claims in the complaint have no merit even if they were not pre-empted. While Plaintiff had a right to impose a security freeze, a reseller such as MicroBilt need only include a consumer’s fraud alert in its own report which is sold (see 15 USC §1681c-1). Pursuant to said section, a security freeze is a restriction which prohibits a consumer reporting agency from disclosing the contents of a consumer report that is subject to such freeze to any person requesting the report. However, a reseller is not subject to such limitation. Moreover, Defendants assert that the FCRA security freeze does not apply where an entity with whom an individual already has an existing account seeks information, or when an entity assists in collecting on a debt. Bloomingdale was such an entity: working to collect on a judgment against Plaintiff. After reviewing the provisions of 15 USC §1681c-1, this Court agrees with Defendants’ position (see 15 USC §§1681a [p], [u], 1681c-1 [a] [1] [A], [C], [b] [1] [A], [f]; Dinwiddie v. LexisNexis Risk Solutions, Inc., 2012 US Dist LEXIS 201884 [ND Ga 2012]; Pietrafesa v. First Am. Real Estate Info. Servs., 2007 US Dist LEXIS 15785 [ND NY 2007]; Brady v. Wells Fargo Bank, N.A., 2014 US Dist LEXIS 118152 [Nev 2014]). Moreover, the FCRA indeed pre-empts state law claims (see 15 USC §1681t; Carruthers v. American Honda Finance Corp., 717 F. Supp. 2d 1251 [ND Fla 2010]; Willey v. J.P. Morgan Chase, N.A., 2009 US Dist LEXIS 57826 [SD NY 2009]). Since Bloomingdale was performing work to collect on a debt from Plaintiff, it was permissible under the FCRA for them to acquire information from MicroBilt, which derived its information from Trans Union. Plaintiff has not sufficiently alleged standing in this action as he failed to identify any injury in fact in his complaint. Conjecture and speculation do not suffice (see N.Y. State Bd. of Regents v. State Univ. of N.Y., 178 AD3d 11 [3d Dept 2019]). Furthermore, Plaintiff’s unjust enrichment claim is without merit on the ground that he has not alleged any benefit conferred on Defendants (see Ga. Malone & Co., Inc. v. Rieder, 19 NY3d 511 [2012]). New York General Business Law §899-aa does not provide a private right of action (see Abdale v. North Shore Long Island Jewish Health System, Inc., 49 Misc 3d 1027 [Sup Ct, Queens County 2015]). New York General Business Law §349 does not provide a claim to Plaintiff inasmuch as he failed to allege conduct directed to him by Defendants, much less specific deceptive or misleading conduct (see id.; Canestaro v. Raymour and Flanigan Furniture Co., 42 Misc 3d 1210[A], 2013 NY Slip Op 52270[U] [Sup Ct, Erie County 2013]). Plaintiff fails to state a claim for negligence or negligence per se because he did not allege a breach of any duty owed to him (see Barr v. Albany County, 69 AD2d 914 [3d Dept 1979]; Dubai Islamic Bank v. Citibank, N.A., 126 F Supp 2d 659 [SDNY 2000]). Accordingly, the within motions by Defendants seeking dismissal of Plaintiff’s complaint pursuant to CPLR 3211 (a) (3) and (7) are GRANTED. Dated: May 16, 2023