Fowler v. Town of Ticonderoga
| Decision Date | 04 June 1987 |
| Citation | 516 N.Y.S.2d 368,131 A.D.2d 919 |
| Parties | Frank FOWLER, Respondent, v. TOWN OF TICONDEROGA et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Law Office of James M. Brooks (Richard B. Meyer, Lake Placid, of counsel), for appellants.
John M. Silvestri, Chestertown, for respondent.
Before MAHONEY, P.J., and KANE, CASEY, YESAWICH and LEVINE, JJ.
Appeal from an order of the Supreme Court (Viscardi, J.), entered August 28, 1986 in Essex County, which partially denied defendants' motion to dismiss the complaint for failure to state a cause of action.
Plaintiff commenced the instant suit alleging that defendant Larry La Pann, Town of Ticonderoga Dog Control Officer, negligently and maliciously shot and killed his dog. He sought recovery from the Town of Ticonderoga and La Pann, both as a Town officer and individually, for the monetary value of the dog, the psychic trauma suffered as a result of the dog's death, and punitive damages. Defendants moved to dismiss the complaint for failure to state a cause of action, contending that the Town and its dog control officer were immune from liability since La Pann was statutorily authorized to kill the dog (citing Environmental Conservation Law § 11-0529) and in doing so performed a governmental function (citing Court of Claims Act § 8). Defendants also maintained that punitive damages could not be recovered from either the Town or La Pann in his capacity as dog control officer and that damages for psychic trauma could not be recovered for the killing of a dog. Supreme Court dismissed plaintiff's claim for punitive damages as against the Town and La Pann as dog control officer but denied defendants' motion in all other respects. This appeal by defendants ensued.
We are not persuaded by defendants' contention on appeal that the shooting and killing of plaintiff's dog by La Pann as dog control officer was the performance of a governmental function protected by sovereign immunity. The State, its political subdivisions and its officers are immune from liability from conduct which constitutes a governmental function, involving the exercise of discretionary or quasi-judicial powers (Court of Claims Act § 8; Rottkamp v. Young, 21 A.D.2d 373, 375-377, 249 N.Y.S.2d 330; 2C Warren, Negligence in the New York Courts, Municipal Corporations, § 2.03, at 278-299 [3d ed] ). Sovereign immunity has been waived, however, with regard to those acts which are not discretionary, administrative or quasi-judicial because they are not a function of sovereignty and are more akin to acts undertaken by private individuals or corporations (see, Amato v. City of New York, 268 F.Supp. 705, 707; 2C Warren, Negligence in the New York Courts, Municipal Corporations, § 2.03[3][d], at 393-399 [3d ed] ).
The statutory provision relied upon by defendants as authorizing La Pann as dog control officer in killing plaintiff's dog, Environmental Conservation Law § 11-0529(2), provides that "any person, may kill any dog (a) pursuing or killing deer within the Adirondack or Catskill parks" (emphasis supplied). Since the killing of a dog thereunder is not reserved to government officials but may be done by any private individual, the act was not committed in performance of a governmental function to which sovereign immunity still applies.
Moreover, even if La Pann had been performing a governmental function in killing plaintiff's dog pursuant to statutory authority, sovereign immunity would not bar plaintiff's recovery against the Town or its dog control officer for damages proximately caused by La Pann's negligence in carrying out his duties (see, Zibbon v. Town of Cheektowaga, 51 A.D.2d 448, 382 N.Y.S.2d 152, appeal dismissed 39 N.Y.2d 1056, 387 N.Y.S.2d 428, 355 N.E.2d 388; 2C Warren, Negligence in the New York Courts, Municipal Corporations, § 52.03[3][b], at 384-390 [3d ed] ). Although a municipality may not be held liable for...
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Luna v. American Airlines, 04 Civ. 1803 (MHD).
...366 N.E.2d 64 (1977), & citing Stanley v. Smith, 183 A.D.2d 675, 584 N.Y.S.2d 60 (1st Dep't 1992), and Fowler v. Town of Ticonderoga, 131 A.D.2d 919, 516 N.Y.S.2d 368 (3d Dep't 1987)). 12 It bears mention that in a later decision the Third Department suggested that the "guarantee of genuine......
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Geraci v. Women's Alliance, Inc., No. 1:03-cv-129.
...work duties. Discretionary function immunity does not shield individualized decisions such as these. See e.g., Fowler v. Town of Ticonderoga, 131 A.D.2d 919, 920 (1987); Annot.; Personal liability of public officer for killing or injuring animal while carrying out statutory duties with resp......
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...Plaintiff may not recover for emotional distress caused by the negligent destruction of his property. Fowler v. Town of Ticonderoga, 131 A.D.2d 919, 516 N.Y.S.2d 368, 370 (3d Dep't 1987). Nor, may plaintiff recover for emotional distress caused by witnessing the negligent damage of his prop......
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