New York State Court of Claims

New York State Court of Claims

SPRACHMAN v. THE STATE OF NEW YORK, #2000-011-520, Claim No. 100781, Motion No. M-61043


Synopsis


Defendant has moved for summary judgment in this claim in which it is alleged that the Town of Horicon, Warren County, improperly delegated its authority to maintain a culvert which controlled the water level of Beaverpond and the State Department of Environmental Conservation failed to enforce environmental laws concerning the alteration of a watercourse or lake.

Case Information

UID:
2000-011-520
Claimant(s):
URSULA SPRACHMAN
Claimant short name:
SPRACHMAN
Footnote (claimant name) :

Defendant(s):
NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION and VICTOR WEHNAU, JOHN ELLITHORPE, CAROL DRURY, BILL WHITE and JOHN CAHILL (INDIVIDUALLY)
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100781
Motion number(s):
M-61043
Cross-motion number(s):

Judge:
Thomas J. McNamara
Claimant's attorney:
Ursula Sprachman, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Michael C. Rizzo, Esq., of counsel)
Third-party defendant's attorney:

Signature date:
April 20, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has moved for summary judgment in this claim in which it is alleged that the Town of Horicon, Warren County, improperly delegated its authority to maintain a culvert which controlled the water level of Beaverpond and the State Department of Environmental Conservation failed to enforce environmental laws concerning the alteration of a watercourse or lake. To prevail on a motion for summary judgment, the moving party must tender evidentiary proof in admissible form sufficient to justify the direction of summary judgment in his or her favor whereupon the burden shifts to the party opposing the motion to raise a triable issue of fact (Hackstadt v Hackstadt, 194 AD2d 908).

The first cause of action is based on allegations that the Town of Horicon unlawfully delegated its responsibility for maintaining the culvert and water level in Beaverpond to a group of people referred to as the Beaverpond Committee. According to Claimant, as a result of the acts of the Town, flooding caused damage to property she owns on Beaverpond. The cause of action is premised wholly upon acts of the Town and as this court has no jurisdiction over claims based upon wrongs alleged to have been committed by the Town of Horicon, the cause of action must be dismissed (see, Court of Claims Act §9).

The fifth cause of action is for a declaratory judgment and the sixth cause of action seeks a preliminary injunction. This court does not have jurisdiction to entertain an application for injunctive relief or a declaratory judgment of the type sought here (see, Court of Claims Act §9). Consequently, the fifth and sixth causes of action must be dismissed.

The seventh cause of action is for conspiracy. However, New York does not recognize civil conspiracy as an independent cause of action ( McGahey v Topping, 255 AD2d 562). Therefore, the seventh cause of action must be dismissed.

The remaining causes of action are for money damages based upon the Department of Environmental Conservation's failure to enforce certain provisions of the Environmental Conservation Law. Although the State and its political subdivisions have waived their sovereign immunity, that waiver is not absolute (Searles v Town of Horicon, 116 AD2d 93). The State has retained its immunity for those governmental actions requiring expert judgment or the exercise of discretion (Arteaga v State of New York, 72 NY2d 212). Discretionary acts, as opposed to ministerial ones, are those involving the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result (Tango v Tulevech, 61 NY2d 34). Actions involving the conscious exercise of discretion of a judicial or quasi-judicial nature receive absolute immunity while other discretionary actions are entitled to only qualified immunity (Arteaga v State of New York, supra at 216). The decision here, not to pursue criminal proceedings, involves an act of discretion of a quasi-judicial nature and is entitled to absolute immunity (Moore v Dormin, 252 AD2d 421, Rosenberger, J.P. concurring; cf. Claude H. v County of Oneida, 214 AD2d 964, investigative law-enforcement role afforded qualified immunity). Accordingly, the second, third and fourth causes of action should be dismissed.

For the reasons stated above, the motion is granted and the claim is dismissed.


April 20, 2000
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims


Papers Considered:

1. Notice of Motion for Summary Judgment dated January 7, 2000.
2. Affidavit of Michael C. Rizzo, Esq., sworn to the 7th day of January, 2000 with exhibits annexed.