Rottkamp v. Young

CourtNew York Court of Appeals
Citation257 N.Y.S.2d 944,15 N.Y.2d 831
Parties, 205 N.E.2d 866 Joseph ROTTKAMP et al., Appellants, v. John C. YOUNG et al., Respondents. Louis LAMBRAN et al., Appellants, v. John C. YOUNG et al., Respondents.
Decision Date11 February 1965

William J. White, Hempstead, and Harry Rosenberg, Mineola, for appellants.

John A. Morhous, Town Attorney (George B. Schneider, Hempstead, of counsel), for respondents.

Order affirmed, with costs, for the reasons stated in the opinion at the Appellate Division.

DYE, FULD, SCILEPPI and BERGAN, JJ., concur.

BURKE, J., dissents and votes to reverse and reinstate the order of Special Term in the following opinion in which DESMOND, C. J., and VAN VOORHIS, J., concur.

BURKE, Judge (dissenting).

With the exception of California (Dawson v. Martin, 150 Cal.App.2d 379, 309 P.2d 915; Hardy v. Vial, 48 Cal.2d 577, 311 P.2d 494, 66 A.L.R.2d 739) and the Federal courts (Spalding v. Vilas, 161 U.S 483, 16 S.Ct. 631, 40 L.Ed. 780; Gregoire v. Biddle, 2 Cir., 177 F.2d 579, cert. den. 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363; Laughlin v. Rosenman, 82 U.S.A.pp.D.C. 164, 163 F.2d 838) all other jurisdictions in this country, in common with the overwhelming number of jurisdictions in the free world, take the position that malice or dishonesty of purpose can transform an otherwise privileged act of an administrative official into one for which personal liability may ensue (Cobb v. City of Malden, 1 Cir., 202 F.2d 701, 707; Speyer v. School Dist. No. 1, 82 Colo. 534, 261 P. 859, 57 A.L.R. 203; Wadsworth v. Town of Middletown, 94 Conn. 435, 109 A. 246; Leong Yau v. Carden, 23 Hawaii 362; McCormick v. Burt, 95 Ill. 263; Rehmann v. City of Des Moines, 204 Iowa 798, 215 N.W. 957, 55 A.L.R. 430; Tillotson v. Fair, 160 Kan. 81, 159 P.2d 471; Tanner v. Stevenson, 138 Ky. 578, 128 S.W. 878; Donahoe v. Richards, 38 Me. 379; Maurice v. Worden, 54 Md. 233; Roerig v. Houghton, 144 Minn. 231, 175 N.W. 542; Hester v. Miller, 11 N.J.Super. 264, 78 A.2d 322; Schwartz v. Heffernan, 304 N.Y. 474, 109 N.E.2d 68; State ex rel. Hedgepeth v. Swanson, 223 N.C. 442, 27 S.E.2d 122; Zimbelman v. Atkinson, 86 N.E.2d 791, (Ohio App.); Peterson v. Cleaver, 124 Or. 547, 265 P. 428; Atkinson v. Birmingham, 44 R.I. 123, 116 A. 205, 36 A.L.R. 366; Wood v. Rolfe, 128 Wash. 55, 221 P. 982; Hatfield v. Graham, 73 W.Va. 759, 81 S.E. 533).

In New York, the leading case is Schwartz v. Heffernan (304 N.Y. 474, 109 N.E.2d 68 supra). There, in a suit against the individual members of the Board of Elections for willfully refusing to place plaintiff's name on the ballot even though he had procured the necessary number of signatures, we upheld the complaint as stating a cause of action. At the very least, the case stands for the proposition that an ordinarily privileged act may become actionable if it is the product of malice rather than a fair or negligent mistake and therefore decides the issue presented here. (See, also, Schuster v. City of New York, 5 N.Y.2d 75, 180 N.Y.S.2d 265, 154 N.E.2d 534.)

Apart from this precedent there exists a further compelling reason for sustaining the complaints here. Even if it could be said that these respondents were otherwise immune, because of a discretionary power to do what is necessary or proper, once the appellants returned from Special Term armed with an order finding that the inspector did not possess a discretionary power and compelling issuance of the permit forthwith, it is impossible to treat any further refusal to comply as privileged; at this stage, all possible element of judgment or discretion had been removed and the respondents' only course of action was to obey the order. Were appellants still seeking to compel the issuance of the permit, the fact that the ordinance, as now amended, no longer authorizes the proposed use might be a bar to such an action; however, it is of no importance in the present suit. Here damages are sought for the alleged willful and malicious refusal to grant the permit under the ordinance in effect in 1955. The majority overlooks the finding of the Appellate Division in the case of Matter of Dengeles v. Young, (3 A.D.2d 758, 160 N.Y.S.2d 83) which involved these very acts of the Building Inspector. There the Appellate Division found that the inspector 'willfully refused to grant the permit, and misled and hindered' appellants.

For the law to sanction and in fact assist in the willful and malicious use of administrative power to the damage of an individual contributes nothing to increased efficiency in the administrative agencies. To put unbridled powers in the hands of administrative officials places the most prized of our rights at the mercy of the most unscrupulous officials.

Taking all of the allegations asserting willful, malicious and tortious conduct to be true, as we must on a motion to dismiss, the sole question presented is whether damages resulting from the willful and malicious acts of an administrative official or body are recoverable in a civil action. The actions complained of are, first, the refusal of respondents to issue a building permit to erect a diner even though the Town of Hempstead Building Ordinance specifically authorized the erection of restaurants in his zoned area and in fact had approved applications for the erection of diners under this same ordinance on numerous occasions in the past, and, second, the further refusal of respondents to issue the permit even after appellants had secured a court order compelling issuance forthwith. Respondents maintain that their actions are cloaked in...

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