Miller v. State

• Decision Date: 24 December 1986
• Citation: 510 N.Y.S.2d 214,125 A.D.2d 853
• Parties: Joel MILLER, as Administrator of the Estate of Helen Miller, Deceased, Appellant, v. STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 214

510 N.Y.S.2d 214

125 A.D.2d 853

Joel MILLER, as Administrator of the Estate of Helen Miller Deceased, Appellant, v. STATE of New York, Respondent.

Supreme Court, Appellate Division Third Department.

Dec. 24, 1986.

Richard Castellane, Liberty, for appellant.

Robert Abrams, Atty. Gen. (Vernon Stuart, of counsel), Albany, for respondent.

Before MAHONEY, P.J., and CASEY, MIKOLL, YESAWICH and LEVINE, JJ.

LEVINE, Justice.

Appeal from an order of the Court of Claims (Hanifin, J.), entered March 24, 1986, which granted the State's motion to dismiss the claim.

In late December 1984, claimant's mother, Helen Miller, perished in a fire in a building located on the grounds of a resort hotel in the Village of Monticello, Sullivan County. The building was used for housing hotel staff. Miller had been a hotel employee for many years. Although in semi-retirement at the time of the fire, the hotel permitted her to remain in residence at the building. For several years prior to the fire, the State Department of Health had issued permits pursuant to the State Sanitary Code (10 NYCRR parts 1-24) to operate the building as a temporary residence (see, 10 NYCRR subpart 7-1).

The claim against the State was brought for negligently contributing to Miller's death in failing to enforce the fire safety requirements of the Sanitary Code as to temporary residences (10 NYCRR 7-1.6--7-1.13) and in continuing to issue temporary residence permits despite having inspected and found fire safety violations as early as 1979. It is also alleged that Miller relied upon the State's continued issuance of permits as an implicit approval of the fire safety conditions of the building.

The Court of Claims granted the State's motion to dismiss the claim, holding alternatively that (1) the issuance of temporary residence permits were discretionary rather than ministerial acts for which the State was immune from tort liability, and (2) no special relationship existed between Miller and the State giving rise to a duty to Miller different from the general duty regarding code enforcement owed the public at large. This appeal ensued.

In our view, the Court of Claims correctly concluded that the State was immune from liability because the issuance of a permit, under the regulations, involved the exercise of discretion and was not wholly ministerial. The salient distinction between discretionary or quasi-judicial acts and ministerial acts, as described in Tango v. Tulevech, 61 N.Y.2d 34, 41, 471 N.Y.S.2d 73, 459 N.E.2d 182, is that the former "involve the exercise of reasoned judgment which could typically produce different acceptable results", while the latter envision "direct adherence to a governing rule or standard with a compulsory result". In the leading case of Rottkamp v. Young, 21 A.D.2d 373, 249 N.Y.S.2d 330, affd. 15 N.Y.2d 831, 257 N.Y.S.2d 944, 205 N.E.2d 866, it was held that the refusal to issue a building permit by a town building inspector was discretionary or quasi-judicial in character because "[t]his determination necessarily involved the construction of the zoning ordinance and a consideration of the facts before him--an act which a building inspector must perform as part of his responsibilities" (id., 21 A.D.2d at 376, 249 N.Y.S.2d 330). The same holds true in the instant case. The regulations direct the State official to issue a temporary residence permit "if he finds that the temporary residence will not be a potential source of danger to the general public health and safety or to the health or safety of the occupants * * * and if he finds that the temporary residence * * * conforms or will conform to the requirements of this Subpart" (10 NYCRR 7-1.4[c] [emphasis supplied] ). The issuing official may also waive or grant a variance from the Sanitary Code's fire...