Burgundy Basin Inn, Ltd. v. State, 57773
| Decision Date | 27 February 1975 |
| Docket Number | No. 57773,57773 |
| Citation | 47 A.D.2d 692,364 N.Y.S.2d 610 |
| Parties | BURGUNDY BASIN INN, LTD., Appellant, v. STATE of New York, Respondent. Claim |
| Court | New York Supreme Court — Appellate Division |
Bayer, Dupee & Smith, Rochester (Jon Charles Dupee, Rochester, of counsel), for appellant.
Valent, Callahan & Lucas, Watkins Glen (Henry Valent, Watkins Glen, of counsel), for respondent.
Before HERLIHY, P.J., and GREENBLOTT, SWEENEY, MAIN and LARKIN, JJ.
Appeal from an order of the Court of Claims, entered February 26, 1974, which denied the claimant's motion for a change of venue and for the production of certain State officers, agents or employees for examination before trial, and granted the State's cross-motion to dismiss the claim.
Pursuant to a mass gathering permit issued by the New York State Department of Health in accordance with Part 7 of the State Sanitary Code, The Watkins Glen Grand Prix Corporation and the Country Concerts Corporation promopted and operated a rock music festival at Watkings Glen, New York from July 27, 1973 to July 29, 1973. Thereafter, the claimant, which operated concession stands at the festival, commenced this action seeking to recover for damages it allegedly suffered in the operation thereof by way of lost property and clean-up expenses. Grounding its case on the contention that the mass gathering permit was negligently issued, the claimant argues that, in effect, the State licensed a nuisance which was the cause of its damages. In the trial court, however, the State's cross-motion to dismiss the claim was granted on the ground that the claimant had failed to state a valid cause of action.
We agree with the trial court. Where State actions are quasi-judicial in nature and, thus, require the exercise of judgment and discretion, it is well settled that the State is protected from liability therefor, notwithstanding the statutory waiver of immunity embodied in section 8 of the Court of Claims Act (Instalment Dept. v. State of New York, 21 A.D.2d 211, 250 N.Y.S.2d 124). Consequently, since the issuance of the permit in this case was clearly a judgmental and discretionary act (cf. Vil. of Nyack v. Diamond, 38 A.D.2d 453, 330 N.Y.S.2d 817; Van Buskirk v. State of New York, 38 A.D.2d 349, 329 N.Y.S.2d 381), the claim was properly dismissed.
Order affirmed, without costs.
To continue reading
Request your trial
-
Santangelo v. State
...and employees of the State Health Department in issuing a "mass gathering permit" for a rock music festival (Burgundy Basin Inn v. State of New York, 47 A.D.2d 692, 364 N.Y.S.2d 610, mot. for lv. to app. den. 37 N.Y.2d 706, 374 N.Y.S.2d 1027, 337 N.E.2d Most recently the Court of Appeals ha......
-
Sweet v. State
...and discretion, and was a quasi-judicial determination from which a cause of action does not lie. (See Burgundy Basin Inn, Ltd. v. State of New York, 47 A.D.2d 692, 364 N.Y.S.2d 610; Desch, Inc. v. State of New York, 50 A.D.2d 253, 377 N.Y.S.2d 667; see generally, Weiss v. Fote, 7 N.Y.2d 57......
-
Tango by Tango v. Tulevech
...45 N.Y.2d 882, 410 N.Y.S.2d 811, 383 N.E.2d 113 [issuance of burning permits held to be discretionary act]; Burgundy Basin Inn v. State of New York, 47 A.D.2d 692, 364 N.Y.S.2d 610, mot. for lv. to app. den. 37 N.Y.2d 706, 374 N.Y.S.2d 1027, 337 N.E.2d 146 [issuance of concert permits held ......
-
Omabuild USA No. 1, Inc. v. State
...831, 257 N.Y.S.2d 944, 205 N.E.2d 866; Tango v. Tulevech, 61 N.Y.2d 34, 471 N.Y.S.2d 73, 459 N.E.2d 182; Burgundy Basin Inn, Ltd. v. State of New York, 47 A.D.2d 692, 364 N.Y.S.2d 610). We note that time limits for SEQRA review are directory, not mandatory (see, Matter of Seaboard Contr. & ......