Tango by Tango v. Tulevech

• Citation: 61 N.Y.2d 34,471 N.Y.S.2d 73
• Parties: , 459 N.E.2d 182 Renee TANGO et al., by Their Parent and Natural Guardian, Charles TANGO, et al., Appellants, v. Jennie TULEVECH, Individually and as an Employee of the Rockland County Department of Probation, et al., Respondents.
• Decision Date: 20 December 1983
• Court: New York Court of Appeals

Page 73

471 N.Y.S.2d 73

61 N.Y.2d 34, 459 N.E.2d 182

Renee TANGO et al., by Their Parent and Natural Guardian Charles TANGO, et al., Appellants, v. Jennie TULEVECH, Individually and as an Employee of the Rockland County Department of Probation, et al Respondents.

Court of Appeals of New York.

Dec. 20, 1983.

Steven Abel and Richard J. Feinberg, New City, for appellants.

Edward A. Frey, Bell Harbor, for respondents.

OPINION OF THE COURT

SIMONS, Judge.

Plaintiff Charles Tango, individually and as guardian of his two minor daughters, Renee and Ruth Tango, seeks money damages from defendant Jennie Tulevech, a probation officer, and her employer, defendant County of Rockland, alleging that they wrongfully, carelessly and negligently violated plaintiffs' civil and constitutional rights by depriving Mr. Tango of the custody of his two children. The claims are founded upon an incident which occurred October 31, 1977 in the office of defendant county's Probation Department when defendant Tulevech permitted Barbara Childs, plaintiff Charles Tango's former wife and the children's mother, to take the children with her to South Carolina over his objection and contrary to a custody agreement between the father and mother. Plaintiffs claim that Ms. Childs abused the girls, causing physical injuries to them and emotional injuries to all plaintiffs. After a jury trial, the father recovered a verdict of $10,000 and each daughter recovered a verdict of $20,000. On appeal the Appellate Division 91 A.D.2d 1019, 457 N.Y.S.2d 895 reversed and dismissed the complaint. We affirm its order.

When Charles Tango and Barbara Childs were divorced in New Jersey in 1974, the judgment awarded Ms. Childs permanent custody of their daughters. With the aid of the Union County (New Jersey) Probation Service, the parents modified the custody arrangement in February, 1977 by a letter agreement which accorded the father exclusive custody of the children for a period of one year. The children, approximately 8 and 10 years old at the time, were to reside with their father in Rockland County and Ms. Childs was given the right to visit them at least once a month. At the time of this modification, Ms. Childs had a support proceeding pending in the Union County Juvenile and Domestic Relations Court. In dismissing the proceeding, the court noted in its order that the Probation Department had a letter in its possession signed by Ms. Childs which referred to this agreement and that the father was excused from making support payments during the time he had custody.

Shortly thereafter, plaintiff commenced a proceeding in the Supreme Court, Rockland County, seeking permanent custody of the children. At about the same time, Robin Alvarez, a 19-year-old daughter of the Tango-Childs marriage, instituted a separate proceeding in Family Court, Rockland County, seeking an order granting her visitation rights with her younger sisters.

On October 31, 1977 Barbara Childs and Robin Alvarez went to the school attended by Renee and Ruth Tango, removed them from their school bus and drove away with them. The school principal observed the incident and provided identification which enabled the police to intercept the car and take its occupants to the In-take Unit of the Probation Department connected with the Rockland County Family Court where they met defendant Tulevech.

The evidence of what transpired next is conflicting. Defendants claim that Ms. Tulevech acted as a mediator in the dispute; plaintiffs' claim that she frustrated their efforts to prevent Ms. Childs from unlawfully taking the children to South Carolina. In support of her claim, defendant Tulevech testified that she was informed by Childs that she was entitled to custody and that she intended to take the children to South Carolina. As evidence of the lawfulness of her conduct, the mother showed defendant Tulevech several papers, including the divorce decree awarding her custody of the children, and the letter agreement with the father giving him temporary custody rights for one year. Defendant testified that the letter was not notarized. Defendant examined the children and concluded that they "looked well" and were free of any signs of physical abuse. The father and a law student employed by his attorney claim that when they arrived at the Probation Office shortly thereafter they told Tulevech of the pending Supreme Court custody proceeding as well as the prior support proceeding in New Jersey which was dismissed with Ms. Childs' consent. Mr. Tango contends, and defendant Tulevech denies, that he repeatedly told her that Childs had physically abused the children. Plaintiffs' witnesses also testified that defendant Tulevech refused to allow the father to confer with her supervisor or a Judge. Instead, she is alleged to have told him that all the Judges were "too busy" and then ordered a policeman to escort Ms. Childs and the children out of the building.

Plaintiff Tango eventually regained custody of the children in June, 1978 by an order of a South Carolina court.

The complaint contains causes of action alleging that (1) defendant Tulevech negligently performed her official duties, and that because she did so out of malice she lost any immunity she might otherwise enjoy, (2) defendants' interference with plaintiffs' custodial rights violated their civil and constitutional rights under section 1983 of title 42 of the United States Code, and (3) defendants breached a special duty owing to plaintiffs. The trial court refused to submit the civil rights claim to the jury but did instruct it on the remaining theories with the explicit instruction that defendants could be found negligent only if the jury also found that defendant Tulevech had acted in bad faith. The jury returned verdicts for each of the plaintiffs and on appeal the Appellate Division reversed, concluding that under no view of the evidence could defendants be held liable. It found that defendant Tulevech acted within the scope of her duties in refusing to restrain Ms. Childs from removing the children and that liability could not be predicated on the decision to so proceed, even if it was erroneous or actuated by bad faith or malice (citing 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). The Appellate Division made a factual finding contrary to the jury's to the effect that defendant Tulevech had indeed acted in good faith. It did not discuss plaintiffs' civil rights claim.

I

Plaintiffs' first claim is that defendant Tulevech negligently performed her duties, that she should have referred the matter to a Family Court Judge and that the jury's finding of bad faith strips her of any official immunity she might otherwise enjoy. Recognizing that current New York law renders Tulevech's motives irrelevant (see 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, supra ), plaintiff argues in the alternative for a change in the law which would permit a showing of bad faith or malice to negate the public official's immunity.

Municipalities surrendered their common-law tort immunity for the misfeasance of their officers and employees long ago (see Bernardine v. City of New York, 294 N.Y. 361, 62 N.E.2d 604), but other recognized limitations still govern the tort liability of municipal officers. Relevant here is the rule that when official action involves the exercise of discretion, the officer is not liable for the injurious consequences of that action even if resulting from negligence or malice. Conversely, when the action is exclusively ministerial, the officer will be liable if it is otherwise tortious and not justifiable pursuant to statutory command (East Riv. Gas-Light Co. v. Donnelly, 93 N.Y. 557, 559, cited in Rottkamp v. Young, supra; see, generally, 2 Harper and James, Torts, § 29.10). In Rottkamp the Appellate Division held that a building inspector who refused to issue a building permit was immune from suit because his act was discretionary (21 A.D.2d, at p. 376, 249 N.Y.S.2d 330). Marking the distinction between discretionary and ministerial acts, the court noted that: "[e]ach 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 )."

Judicial efforts to distinguish between discretionary and ministerial acts have produced an array of decisions with results that are difficult to harmonize (see, e.g., Charles O. Desch, Inc. v. State of New York, 60 A.D.2d 678, 400 N.Y.S.2d 28, affd. 45 N.Y.2d 882, 410 N.Y.S.2d 811, 383 N.E.2d 113 [issuance of burning permits held to be discretionary act]; 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 [issuance of concert permits held to be discretionary act]; Van Buskirk v. Bleiler, 46 A.D.2d 707, 360 N.Y.S.2d 88 [wrongful discharge of civil service employee held to be judicial or quasi-judicial act]; Gross v. State of New York, 33 A.D.2d 868, 306 N.Y.S.2d 28 [filing of certificate of incorporation by...