Lloyd v. Wheatfield

109 A.D.2d 1084, 487 N.Y.S.2d 235, 1985 N.Y. App. Div. LEXIS 47574

Opinions

— Order affirmed, without costs. Memorandum: The complaint was properly dismissed. It is established law that a municipality enjoys absolute immunity from suit in tort for damages based on the erroneous denial of a building permit (Rottkamp v Young, 21 AD2d 373, 376, affd 15 NY2d 831; see, Tango v Tulevech, 61 NY2d 34, 40-41; 154 E. Park Ave. Corp. v City of Long Beach, 52 NY2d 991, 993). This immunity is founded on public policy (see, Matter of Film way s Communications v Douglas, 106 AD2d 185; Santangelo v State of New York, 101 AD2d 20, 25-26; 2 Harper and James, Law of Torts § 29.10). Such policy-based immunity applies even though the issuance of a building permit may be compelled in a CPLR article 78 proceeding by a writ of mandamus (see, Santangelo v State of New York, supra, pp 25-26; 2 Harper and James, Law of Torts § 29.10, at 1638). In such a context, the policy questions giving rise to immunity from suit in tort do not exist.

,. All concur, except Doerr, J., who dissents and votes to reverse and reinstate the complaint in the following memorandum.