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ALI v. VIKAR MGMT.

February 19, 1998

FREDDIE ALI and URSILLA JITTA, Plaintiffs, against VIKAR MANAGEMENT LTD., JOHN ILIBASSI, and JOHN KUCHARCZYK, Defendants. TARAMATEE RAMSAROOP, Plaintiff - against - VIKAR MANAGEMENT LTD., JOHN ILIBASSI, and JOHN KUCHARCZYK, Defendants.


The opinion of the court was delivered by: CHIN

 CHIN, D.J.

 The plaintiffs in these related cases are tenants in rent stabilized apartments. Their landlord suspected that they actually reside elsewhere. If that were true, the tenants would not be eligible to keep the rent stabilized apartments and the landlord could evict them.

 Through its managing agent, the landlord obtained information about the tenants from a consumer credit reporting agency. The landlord sought this information not to check on the tenants' credit worthiness, but to verify their primary place of residence. For at least two of the tenants, the managing agent made false representations to obtain the information.

 Plaintiffs Freddie Ali and Ursilla Jitta filed suit against defendants Vikar Management Ltd. ("Vikar"), the landlord's managing agent, and John Ilibassi and John Kucharczyk on March 1, 1996. On September 27, 1996, Taramatee Ramsaroop also filed suit against the same defendants.

 Plaintiffs in both cases allege violations of the Federal Credit Reporting Act (the "FCRA"), 15 U.S.C. § 1681 et seq., New York's Fair Credit Reporting act (the "NYFCRA"), N.Y. Gen. Bus. L. § 380 et seq., and § 349 of New York's General Business Law concerning deceptive acts and practices. Plaintiffs claim that defendants improperly and illegally accessed and obtained credit and/or other information about them that was maintained by TRW Information Systems and Services ("TRW") *fn1" , a credit reporting agency. TRW is not a party to this action.

 The cases were consolidated and the parties cross-moved for summary judgment. Plaintiffs seek summary judgment on liability for the alleged violations of the FCRA and NYFCRA. *fn2" Defendants move for summary judgment for plaintiffs' failure to state a cause of action. I held oral argument in the case on February 10, 1998.

 For the reasons set forth below, summary judgment on liability is granted in favor of Jitta because defendants obtained information about her from TRW under false pretenses. Summary judgment on liability is also granted in favor of Ramsaroop because defendants obtained her credit report under false pretenses as the credit report was not obtained for a permissible purpose under the FCRA: the FCRA does not permit a landlord to obtain a credit report for the purpose of determining a rent-stabilized tenant's primary residence. As to Ali, however, summary judgment on liability is denied, for issues of fact exist as to whether address information was obtained with respect to him under false pretenses. Defendants' motion for summary judgment is denied in all respects.

 BACKGROUND

 Plaintiffs Ali and Jitta, husband and wife, are tenants of a rent-stabilized apartment located at 244 West 16th Street New York, New York (the "premises"). Only Ali, however, is a signatory to the lease, which was entered into on January 19, 1976. (Ali Aff. PP 3, 4). Plaintiff Ramsaroop is also a tenant at the premises and subject to New York's rent stabilization laws. Ramsaroop has been a tenant since entering into a lease on January 2, 1980. (Ramsaroop Aff. PP 2, 3).

 Vikar conducted a "monthly tenant check" for West 16th, which sometimes included accessing tenants' TRW information. (Ilibassi Aff. P 3). As previously noted, TRW is a credit reporting agency that stores and reports consumer information. Vikar entered into a subscriber service agreement with TRW wherein Vikar "certifies and warrants that it will request and use credit information received from TRW solely in connection with credit transactions, or, if applicable, for employment purposes . . . or for other 'permissible purposes' as defined by the Fair Credit Reporting Act, 15 U.S.C. Section 1681 et seq. " (Fishman Aff. Exh. B P 4).

 As West 16th's agent, Vikar accessed TRW information on Ali, Jitta, and Ramsaroop. (Ilibassi Aff. at PP 13, 14). On January 24, 1995, Vikar accessed "address information only" from TRW on Jitta. (Jitta Aff. PP 4,5; Jitta Aff. Exh. A). On March 1, 1995 and again on March 2, 1995, Vikar accessed "address information only" from TRW on Ali. (Ali Aff. PP 4, 5; Ali Aff. Exh. B). Finally, on November 4, 1994, Vikar accessed Ramsaroop's credit report "for extension of credit, review or other permissible purpose." (Ramsaroop Aff. Exh. G).

 On February 28, 1995, Fishman wrote to TRW requesting Vikar's specific purpose for accessing information on Jitta. (Fishman Aff. Exh. A, Fishman letter dated 2/28/95). On March 14, TRW responded to Fishman's inquiry. TRW stated that "John Kucharcqyk [sic] confirmed that an address inquiry was made on Ms. Jitta's report on 1/24/95." (Fishman Aff. Exh. A, TRW letter dated 3/14/95). Vikar's alleged reason for the inquiry was that it had "inadvertently received Ms. Jitta's mail and . . . wanted to be able to properly forward it to her." (Fishman Aff. Exh. A, TRW letter dated 3/15/95). TRW repeated this explanation to Fishman in letter dated November 28, 1995 (Fishman Aff. Exh. A, TRW letter dated 11/28/95) (explaining that John Ilibassi "stated that he utilized the address update when a piece of mail with Ms. Jitta's name was placed outside the mailboxes . . . at 244 West 16th Street," and Vikar obtained her address to assist her in receiving her mail).

 Fishman also corresponded with TRW concerning Vikar's inquiries on Ali. (Fishman Aff. Exh. A, Fishman letter dated 11/15/95, TRW letter dated 11/28/95, TRW letter 12/12/95, TRW letter 12/22/95). With respect to Ali, TRW never disclosed Vikar's reason for accessing information. Rather, TRW informed Fishman that its security department determined Vikar had a permissible purpose to do an address inquiry on him, and that any request for further information should be directed to Vikar. (Fishman Aff. Exh. A., TRW letter dated 12/22/95).

 Fishman wrote to Ilibassi on December 20, 1995 requesting a written statement advising him of the specific reasons for their TRW inquiries on Jitta and Ali. (Fishman Aff. Exh. C). Ilibassi responded by writing the following at the end of Fishman's letter: "11/26/95 -- credit report was not obtained." (Id.). A December 26, 1995 demand by Fishman for clarification went unanswered. (Id.).

 In the meantime, on September 25, 1995, West 16th notified Ali of its intent not to renew Ali's lease pursuant to sec. 2524.4(c) of New York's Rent Stabilization Code. West 16th filed a holdover petition against Ali claiming that he was not maintaining occupancy at West 16th as a primary residence -- a claim based on information gained from Ali's TRW information. (Ali Aff. Exh. C, D, E). Apparently, West 16th later abandoned its efforts to evict Ali. (See Fishman Aff. P 36, n.3).

 On September 22, 1995, West 16th notified Ramsaroop of its intent not to renew her lease pursuant to sec. 2524.4(c) of New York's Rent Stabilization Code. (Ramsaroop, Aff. Exh. B). West 16th filed a holdover petition against Ramsaroop claiming that Ramsaroop was not maintaining occupancy at West 16th as a primary residence -- a claim based on information gained from Ramsaroop's credit report. (Ramsaroop Aff. Exh. B-F). Apparently, West 16th later abandoned its efforts to evict Ramsaroop. (See Fishman Aff. P 36, n.3).

 After a March 14, 1997 conference with the Court, Vikar's attorney informed Fishman that the purpose of the TRW inquiries as to Ali, Jitta, and Ramsaroop was "in connection with the landlord/tenant relationship between the parties." (Fishman Aff. Exh. H, Horwitz letter dated 3/17/97). On March 18, 1997, he further explained that defendants' purpose for accessing the plaintiffs' TRW information was not for a credit purpose, but rather "to check on plaintiff's residence to determine the leasing and/or renewal leasing of the apartments ...


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