Charles O. Desch, Inc. v. State, 58666

• Decision Date: 30 December 1975
• Docket Number: No. 58666,58666
• Citation: 377 N.Y.S.2d 667,50 A.D.2d 253
• Parties: CHARLES O. DESCH, INC., Respondent, v. STATE of New York, Appellant. Claim
• Court: New York Supreme Court — Appellate Division

Page 667

377 N.Y.S.2d 667

50 A.D.2d 253

CHARLES O. DESCH, INC., Respondent, v. STATE of New York, Appellant.

Claim No. 58666.

Supreme Court, Appellate Division, Third Department.

Dec. 30, 1975.

Louis J. Lefkowitz, Atty. Gen. (Jeremiah Jochnowitz and Ruth Kessler Toch, Albany, of counsel), for appellant.

Di Fabio & Couch, P.C., Albany (Leslie F. Couch, Albany, of counsel), for respondent.

Before GREENBLOTT, J.P., and SWEENEY, KOREMAN, MAIN and REYNOLDS, JJ.

OPINION FOR AFFIRMANCE

MAIN, Justice.

The claimant, a contracting firm, was the successful bidder on a watershed project in Greene County which involved the clearing of an extensive area of land. In furtherance of the performance of its obligation under the contract, the claimant applied to the New York State Department of Environmental Conservation (hereinafter EnCon for a burning permit so as to enable it to burn useless felled timbers and underbrush. On June 11, 1973 an unidentified employee of EnCon wrote to the claimant advising as follows:

Our policy on State and/or federally funded projects is not to allow open burning. Government must help set the example by protecting and conserving our natural resources.

As a result, the claimant was forced to dispose of the debris from the clearing project by other means which were decidedly more time-consuming and expensive.

Contending that its application for the burning permit was never considered on its merits and was rejected unlawfully, arbitrarily and contrary to properly adopted rules and regulations and upon the false pretense that its issuance would be in contravention of established State policy, the claimant duly commenced this action. The State asserts that the action complained of was a governmental function, quasi-judicial in nature and that, therefore, no liability in negligence could attach to the State.

It is certainly well established that, while the State has waived its sovereign immunity for those acts of its agents that are comparable to acts of private individuals or corporations (Court of Claims Act, § 8), this waiver does not subject the State to liability when it is acting in a quasi-judicial capacity or when it is exercising judgment or discretion (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; Jacobson v. New York Racing Assn., 41 A.D.2d 87, 93, 341 N.Y.S.2d 333, 339). Further, the State's waiver of immunity and assumption of liability has never been extended to redress individual wrongs which may have resulted from an error in the exercise of judgment by an officer of the State in the performance of his duty (Gross v. State of New York, 33 A.D.2d 868, 306 N.Y.S.2d 28). However, if a ministerial or nondiscretionary act is wrongfully done, liability ensues (Gross v. State of New York, supra).

Accordingly, the critical issue here is whether the act done was a discretionary act or a ministerial one. While the Commissioner of EnCon has the apparent discretion to disapprove or approve an application for a burning permit (6 NYCRR 215.3), claimant alleges that no discretion was exercised and that the application was never reviewed on its merits, but was rejected on the basis of a non-existent policy. If these allegations were proven, the act complained of would be a ministerial one rather than, as claimed by the State, purely discretionary. However, the facts presented are insufficient to permit us to make a determination on this critical issue. There is no proof as to the identity of the agent or officer who allegedly rejected the claimant's application, nor are we aware of the position he or she may have held, and, consequently, we are unaware of his or her power or authority. Likewise, their is no proof before us that any duly promulgated policy required rejection of the application.

A motion to dismiss under CPLR 3211 (subd. (a), par. (7)) should only be granted if it is very clear that the claimant is entitled to no relief under any construction of the facts alleged in the pleadings (Richardson v. Coy, A.D.2d 640, 280 N.Y.S.2d 623; see, 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3211.44). The same rule obtains in the Court of Claims (19 Carmody-Wait 2d, New York Practice, § 120:1).

Accordingly, the...