Van Buskirk v. State

• Decision Date: 07 March 1972
• Docket Number: No. 53122,53122
• Citation: 329 N.Y.S.2d 381,38 A.D.2d 349
• Parties: , 3 ERC 1966 John H. VAN BUSKIRK et al., Appellants, v. STATE of New York, Respondent. Claim
• Court: New York Supreme Court — Appellate Division

Page 381

329 N.Y.S.2d 381

38 A.D.2d 349, 3 ERC 1966

John H. VAN BUSKIRK et al., Appellants, v. STATE of New York, Respondent.

Claim No. 53122.

Supreme Court, Appellate Division, Third Department.

March 7, 1972.

Valent & Callahan, Watkins Glen (Henry Valent, Watkins Glen, of counsel), for appellant.

Louis J. Lefkowitz, Atty. Gen. (Ruth Kessler Toch and J. Lawson Brown, Albany, of counsel), for respondent.

Before HERLIHY, P.J., and STALEY, GREENBLOTT, SIMONS and KANE, JJ.

OPINION FOR AFFIRMANCE

HERLIHY, Presiding Justice.

This is an appeal by the claimants from an order of the Court of Claims, entered on June 10, 1971, which granted a motion by the respondent to dismiss their claim for damages.

For purposes of such a motion the claimants are entitled to have the allegations of fact in the claim accepted as true and are entitled to any reasonable construction thereof which would establish a cause of action triable in the Court of Claims against the State of New York.

The claim alleges that: the State on April 29, 1968 granted an application of Cayuta Lake Property Owners Association, Inc. for a permit--pursuant to section 429--c of the Conservation Law--to construct a dam without adequately investigating as to probable harm to other riparian owners; that the approved height of the dam would cause flooding; that the approved dam was poorly designed; that the State failed to periodically inspect the dam and insure that there had been compliance with the conditions of the permit; that on July 3, 1970 the dam did not function properly causing a specified rise in the level of the impounded waters; that on July 3, 1970 there was a failure of the third party to comply with the conditions of the permit; and that the foregoing facts caused damage to the claimants' property.

The judgment of the Court of Claims determined that in the issuance of a permit 'the Water Resources Commission was exercising a governmental function of a quasi-judicial nature. It is clear that even if State agents or employees performing such functions err, the State is not liable for the results of such error. See Weiss v. Fote, 7 N.Y.2d 579 (200 N.Y.S.2d 409, 167 N.E.2d 63); Gross v. State of New York, 33 A.D.2d 868 (306 N.Y.S.2d 28)'.

There is no claim that the dam was upon lands owned by the State or that construction of the dam was in any way a State project. This court has previously considered the effect of Article 5 of the Conservation Law and the obligation of the Water Resources Commission (Matter of Sperry Rand Corp. v. Water Resources Comm., 30 A.D.2d 276, 278, 291 N.Y.S.2d 716, 717, mot. for lv. to app. den. 24 N.Y.2d 737, 299 N.Y.S.2d 1028, 247 N.E.2d 669). The Sperry Rand case interpreted the nature of the permits granted as being for the 'public interest' and not for the interest of any private individual or corporation. In Sperry Rand it was specifically acknowledged that the probability or possibility of injury to individuals did not prevent the issuance of a permit pursuant to the Conservation Law. (Matter of Sperry Rand Corp. v. Water Resources Comm., Supra, p. 278, 291 N.Y.S.2d p. 717) The permit in the present proceeding is similar in wording to that in Sperry Rand. In our opinion the granting or withholding of a permit to impound waters in accordance with the terms and conditions thereof does not involve the exercise of a duty or obligation in regard to a private individual or person and any 'negligence' underlying the issuance of the permit would not be actionable in damages against the State.

Furthermore, the conditions of the permit relating to construction, maintenance, and/or operation of the dam, including inspection thereof, would have no perceivable connection with rights and duties as to these claimants. The owner of the land and riparian rights at the point where the dam was constructed at all times was the one who had the power and right to construct the same, The State merely being in a position to prevent such use if it determined the same to be against the public interest. To permit such use upon certain conditions only leaves the matter to the landowner as to...