## Facts

- Plaintiffs were victims of identity theft in which an impostor used stolen credit information, changed account mailing addresses, and obtained credit cards issued in plaintiffs’ names sent to a fraudulent address.
- Plaintiffs sued multiple entities, including Bank of New York (Delaware) and Mobil Oil Credit Corporation, alleging the issuers’ practices allowed the impostor to obtain cards.
- Claims against these issuers included “negligent enablement of impostor fraud,” common-law negligence, intentional and negligent infliction of emotional distress, prima facie tort, and deceptive practices under General Business Law (GBL) § 349.
- The issuers argued New York does not recognize “negligent enablement of impostor fraud,” no special duty existed beyond a creditor–debtor relationship, and the record did not support the remaining tort and statutory elements.
- The trial court granted summary judgment dismissing specified causes of action against each issuer, and plaintiffs appealed.

## Issues

1. Whether summary judgment was procedurally proper where the parties’ submissions treated the matter as a summary judgment determination.
2. Whether New York recognizes a cause of action for “negligent enablement of impostor fraud,” and whether the issuers owed plaintiffs a special duty sufficient to support negligence liability for third-party criminal conduct.
3. Whether the evidence supported claims for intentional or negligent infliction of emotional distress and prima facie tort.
4. Whether plaintiffs established a viable claim under GBL § 349, including deceptive consumer-oriented conduct and actual injury.

## Decision

- The Appellate Division, First Department unanimously affirmed the order granting summary judgment to the issuers, without costs.
- Summary judgment was procedurally proper because the issuers sought such relief and the parties’ submissions “clearly charted a summary judgment course.”
- New York does not recognize a tort of “negligent enablement of impostor fraud.”
- Plaintiffs failed to state or support negligence claims because the issuers had no special relationship with either the impostor or the plaintiffs beyond an ordinary creditor–debtor relationship.
- Emotional distress and prima facie tort claims were dismissed for lack of evidence of ill will, malice, extreme and outrageous conduct, physical injury or apprehension of physical harm, any special duty, and specifically pleaded special damages.
- The GBL § 349 claims were properly dismissed on summary judgment.

## Legal Principles

- A negligence claim predicated on third-party criminal conduct requires a legally cognizable duty; absent a special relationship with the plaintiff or the wrongdoer, a creditor–debtor relationship alone does not create a duty to prevent impostor fraud.
- New York does not recognize an independent cause of action labeled “negligent enablement of impostor fraud.”
- Intentional infliction of emotional distress requires extreme and outrageous conduct; negligent infliction of emotional distress generally requires physical injury or apprehension of physical harm; prima facie tort requires disinterested malevolence and special damages pleaded and proven with specificity.
- A GBL § 349 claim requires consumer-oriented deceptive conduct and actual injury; internal credit-issuance decisions, without actionable deception and proof of damages, do not sustain liability.

## Conclusion

The court affirmed dismissal of identity-theft-related claims against the card issuers, holding that New York neither recognizes “negligent enablement of impostor fraud” nor imposes a negligence duty on credit issuers to prevent third-party impostor crimes absent a special relationship, and that plaintiffs’ emotional distress, prima facie tort, and GBL § 349 theories failed on the summary judgment record.


Polzer v. TRW, Inc., 256 A.D.2d 248, 682 N.Y.S.2d 194 (N.Y. App. Div. 1st Dep’t 1998)