Rottkamp v. Young

• Decision Date: 15 June 1964
• Citation: 249 N.Y.S.2d 330,21 A.D.2d 373
• Court: New York Supreme Court — Appellate Division
• Parties: Joseph ROTTKAMP et al., Respondents, v. John C. YOUNG and The Town of Hempstead, Appellants. Louis LAMBRAN et al., Respondents, v. John C. YOUNG and The Town of Hempstead, Appellants.

Page 330

249 N.Y.S.2d 330

21 A.D.2d 373

Joseph ROTTKAMP et al., Respondents, v. John C. YOUNG and The Town of Hempstead, Appellants.

Louis LAMBRAN et al., Respondents, v. John C. YOUNG and The Town of Hempstead, Appellants.

Supreme Court, Appellate Division, Second Department.

June 15, 1964.

John A. Morhous, Town Atty., Hempstead, for appellants; George B. Schneider, Hempstead, of counsel.

William J. White, Hempstead, for respondents Rottkamp.

Harry Rosenberg, West Hempstead, for respondents Lambran and Smirles.

Before UGHETTA, Acting P. J., and CHRIST, BRENNAN, HILL and HOPKINS, JJ.

HOPKINS, Justice.

Since the defendants, by their motion under rule 112 of the former Rules of Civil Practice, challenge the sufficiency of the complaints in these consolidated actions, we accept the allegations of the complaints as true.

The pleadings in substance allege the following facts:

(1) On March 12, 1955, plaintiffs Rottkamp, as landlords, and plaintiffs Lambran and Smirles (together with Chris Dengeles), as tenants, entered into a lease of real property at East Meadow, New York. The lease provided for the erection and maintenance of a diner by the tenants on the demised premises. At the time of the making of the lease the premises were zoned for business use under the zoning ordinance of the defendant Town; the operation of a restaurant was permitted as a business use.

(2) On May 2, 1955, the tenants submitted an application to the defendant Young, the building inspector of the defendant Town, for the erection of a diner on the premises. The defendants 'carelessly, negligently, wrongfully, wilfully, illegally and arbitrarily in contravention of the Town of Hempstead Building Zone Ordinance, as it then existed, and the constitutional rights of the plaintiffs,' failed and refused to issue the permit. Instead, plaintiffs were advised that a permit would not be issued until an application was made to the town board. The plaintiffs then applied to the town board, before which a hearing was held on June 28, 1955. On August 25, 1955, the application was denied.

(3) The plaintiffs thereupon, pursuant to article 78 of the former Civil Practice Act, instituted a proceeding in the Supreme Court, Nassau County. On December 1, 1955 the Special Term made its order in the proceeding, directing the defendants to issue the building permit (see Matter of Dengeles v. Young, 1 Misc.2d 692, 148 N.Y.S.2d 92). On December 5, 1955, the defendants appealed to this court from that order. Thereafter, the defendant Town amended its zoning ordinance by excluding a diner as a permitted use on the premises, effective June 12, 1956. The appeal was argued on January 3, 1957. The court, on March 11, 1957, reversed the Special Term, with the following memorandum decision (3 A.D.2d 758, 160 N.Y.S.2d 83):

'In a proceeding to direct the chief building inspector of the Town of Hempstead to issue a building permit, the appeal is from an order directing issuance of the permit forthwith. Order reversed, without costs, and proceeding dismissed, without costs, and without prejudice to any action or proceeding which respondents might be advised to institute, based on the grounds that appellant willfully refused to grant the permit, and misled and hindered respondents. See [Matter of] Dubow v. Ross, 254 App.Div. 706, 3 N.Y.S.2d 862. Respondents were entitled to issuance of the permit by the building inspector as a matter of right when they applied for it and also at the time of entry of the order appealed from. The order appealed from was therefore proper when made. However, the right to a permit did not vest, and this appeal must be decided upon the law as it now exists [Matter of] Boardwalk & Seashore Corp. v. Murdock, 286 N.Y. 494, 36 N.E.2d 678. The building zone ordinance, as amended since the entry of the order appealed from, prohibits the issuance of the permit applied for without application to the board of appeals, which is not a party to this proceeding.'

(4) As a result of the failure and refusal of the defendants to issue the building permit, the plaintiffs suffered damages.

In 1883 the Court of Appeals considered the rule to be well settled that 'no public officer is responsible in a civil suit for a judicial determination, however erroneous or wrong it may be, or however malicious even the motive which produced it.' (East River Gas-Light Co. v. Donnelly, 93 N.Y. 557, 559). The rule, as expressed, has a long and respected vintage (cf. Rochester White Lead Co. v. City of Rochester, 3 N.Y. 463, 466; People ex rel. Coughlin v. Gleason, 121 N.Y. 631, 635, 25 N.E. 4, 5; Erving v. Mayor, etc., of City of New York, 131 N.Y. 133, 138, 29 N.E. 1101, 1102; Weaver v. Devendorf, 3 Den. 117; Youmans v. Simmons, 7 Hun 466; 2 Cooley on Torts [4th ed.] § 313, pp. 428-433). Under the rule a distinction is drawn between a ministerial or non-discretionary act from which liability ensues if done wrongfully, and a judicial or discretionary act for which the public officer is immune from liability even if the act is wrongful (2 Harper and James The Law of Torts, § 29.10, pp. 1638-1646; Prosser on Torts, § 109, pp. 780-783).

Though the rule has been criticized, we think that sound reasons of public policy underlie it. To fasten responsibility for damages on a public officer for the exercise of judgment or discretion in favor of one disappointed by the result 'would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties' (Gregoire v. Biddle, 2 Cir., 177 F.2d 579, 581). In weighing the balance between the effects of oppressive official action and vindictive or retaliatory damage suits against the officer, we think that the public interest in prompt and fearless determinations by the officer, based on his interpretation of the law and the facts before him, must take precedence. A public officer, haunted by the specter of a lawsuit, may well be subject to the twin tendencies of procrastination and compromise to the detriment of the proper performance of his duties (cf. Kendall v. Stokes, 44 U.S. 87, 11 L.Ed. 506, 833; Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780; Yaselli v. Goff, 2 Cir., 12 F.2d 396, 56 A.L.R. 1239, affd. 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395). ¹

We turn, then, to the decisive question whether the refusal of the defendant Young in his capacity as building inspector was a discretionary act or a ministerial act. We need not distinguish with precision the character and quality of the act which marks it as discretionary rather than ministerial. Each case must be decided on the circumstances involved, the nature of the duty, the degree of responsibility resting on the officer, and his position in the municipality's table of organization. It must still be true that discretion is indicated if the powers are 'to be executed or withheld according to his own view of what is necessary and proper' (Mills v. City of Brooklyn, 32 N.Y. 489, 497; cf. People v. Kuder, 93 Cal.App. 42, 54-55, 269 P. 198, 630). In other states the decision of a building inspector in the course of his duties has been held to be discretionary, and not subject to liability (cf. Roerig v. Houghton, 144 Minn. 231, 175 N.W. 542; Miller v. Foster, 244 Wis. 99, 11 N.W.2d 674, 153 A.L.R. 845; Lindemann v. City of Kenosha, 206 Wis. 364, 240 N.W. 373; Rehmann v. City of Des Moines, 204 Iowa 798, 215 N.W. 957, 55 A.L.R. 430; Kramer v. City of Jefferson, 233 Mo.App. 685, 124 S.W.2d 525; Clinard v. City of Winston-Salem, 173 N.C. 356, 91 S.E. 1039; Knapp v. City of Newport Beach, 186 Cal.App.2d 669, 9 Cal.Rptr. 90; White v. Brinkman, 23 Cal.App.2d 307, 73 P.2d 254; Baker v. Mueller, D.C., 127 F.Supp. 722, affd. 7 Cir., 222 F.2d 180).

We think that the action of the defendant Young in determining, albeit erroneously, that the plaintiffs were not entitled to a building permit for the erection of a diner, was discretionary and quasi-judicial in character. This 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 (cf. Matter of Westchester County S.P.C.A. v. Mengel, 292 N.Y. 121, 54 N.E.2d 329; Matter of Flanagan v. Zoning Bd. of Appeals of Village of Boyville, 2 Misc.2d 922, 149 N.Y.S.2d 666, affd. 1 A.D.2d 979, 151 N.Y.S.2d 618; Matter of Drucker v. Frisina, 31 Misc.2d 469, 219 N.Y.S.2d 680).

Zoning is now an accepted and widespread method of the municipality in guarding against the growth of undesirable and destructive uses of property; and the duties of a building inspector are an essential and indispensable part of the process in enforcing the established zoning pattern of the municipality. In this light, we hold that his power to issue a building permit should not be hampered in its exercise by the threat of suit for damages on behalf of an applicant (cf. Davis, 'Administrative Officer's Tort Liability', 55 Mich.L.Rev. 201).

The liability of the defendant Town must be judged by different standards. The common law immunity of a municipality for the misfeasance of its officers and employees in the performance of governmental functions has been surrendered (Augustine v. Town of Brant, 249 N.Y. 198, 204-205, 163 N.E. 732, 734; Holmes v. County of Erie, 266 App.Div. 220, 42 N.Y.S.2d 243, affd. 291 N.Y. 798, 53 N.E.2d 369; Bernardine v. City of New York, 294 N.Y. 361, 62 N.E.2d 604, 161 A.L.R. 364). It is sometimes said that the liability of a municipality is measured by the same rules applicable to the ordinary citizen (Becker v. City of New York, 2 N.Y.2d 226, 159 N.Y.S.2d 174, 140 N.E.2d 262; Steitz v. City of Beacon, ...