New York Law Review

Tag: Building Permits

  • 9th & 10th Street, LLC v. Board of Standards & Appeals, 10 N.Y.3d 263 (2008): Upholding Permit Denial Based on Doubt of Lawful Use

    9th & 10th Street, LLC v. Board of Standards & Appeals, 10 N.Y.3d 263 (2008)

    A municipal authority may deny a building permit if it reasonably doubts that a proposed structure can be used for a lawful purpose, and the applicant fails to provide sufficient assurances that the proposed use is practicable.

    Summary

    9th & 10th Street, LLC sought a building permit to construct a dormitory in New York City. The Department of Buildings denied the permit because the LLC failed to demonstrate that the building would actually be used as a dormitory, as opposed to an apartment building which would violate zoning restrictions. The New York Court of Appeals reversed the Appellate Division’s decision, holding that the Department’s action was not arbitrary. The Court reasoned that where there is legitimate doubt about the feasibility of a proposed lawful use, the municipality is not obligated to issue a permit and risk the consequences of illegal use or vacancy. This case clarifies the scope of permissible inquiry by municipal authorities when reviewing building permit applications.

    Facts

    9th & 10th Street, LLC acquired a lot in Manhattan restricted to “Community Facility Use,” which included college or school dormitories. The LLC applied for a permit to build a 19-story dormitory that resembled an apartment building. The Department of Buildings interpreted the Zoning Resolution to require an “institutional nexus,” meaning the dormitory had to be operated by or on behalf of a college or school. The LLC proposed leasing the property to University House Corp. (UHC), an entity it created, representing that UHC’s board would be appointed by participating educational institutions. However, the LLC failed to identify any educational institution committed to using the building as a dormitory.

    Procedural History

    The Department of Buildings denied the permit application. The Board of Standards and Appeals (BSA) denied the LLC’s appeal. The LLC then initiated a CPLR article 78 proceeding to annul the BSA’s determination. The Supreme Court denied relief, but the Appellate Division reversed, finding that the permit could not be denied based on a possible future illegal use. The BSA appealed to the New York Court of Appeals.

    Issue(s)

    Whether the Department of Buildings acted arbitrarily and capriciously in denying a building permit for a proposed dormitory, based on doubts about the likelihood of the building actually being used as a dormitory and the applicant’s failure to provide sufficient assurances of such use.

    Holding

    Yes, because where municipal officials reasonably fear that the legal use proposed for a building will prove impracticable, it is not improper to insist on a showing that the applicant can actually do what it says it will do. The Department’s request for proof of an “institutional nexus” was a reasonable measure to ensure the building would be used as a dormitory as represented.

    Court’s Reasoning

    The Court distinguished this case from Di Milia v. Bennett and Baskin v. Zoning Bd. of Appeals, which held that the mere possibility of a future illegal use is not a sufficient reason to withhold a building permit. The Court clarified that those cases involved situations where the proposed initial use was clearly legal and practicable. Here, the Department of Buildings reasonably doubted that the proposed building would ever be used as a dormitory, given the lack of commitment from any educational institution. The Court reasoned that, “It would create needless problems if petitioner built a 19 story building, only to find that it could not use it in a legally-permitted way.” The Court concluded that seeking assurances of a valid dormitory use was prudent and not arbitrary, as it prevented the potential for the building to either violate zoning laws or remain vacant.

  • Pius v. Director, Bldg. & Housing, 74 N.Y.2d 919 (1989): Discretionary Authority and SEQRA Review for Building Permits

    Pius v. Director, Bldg. & Housing, 74 N.Y.2d 919 (1989)

    Issuance of a building permit is not always a ministerial act exempt from SEQRA review; if the issuing authority possesses discretionary power to approve site plans and make case-by-case judgments, the permit process constitutes an “action” subject to environmental review.

    Summary

    Pius, a contract purchaser, sought a building permit to construct an office building. The Town of Huntington’s Director of Engineering, Building and Housing (Director) denied the permit, requiring Pius to submit a draft environmental impact statement (DEIS) due to potential adverse environmental impacts. Pius initiated an Article 78 proceeding to compel the permit issuance. The lower courts, relying on *Filmways*, held that permit issuance was ministerial and not subject to SEQRA. The Court of Appeals reversed, holding that because the Director possessed discretionary authority over site plan approvals and construction materials, the permit process was an “action” requiring SEQRA review.

    Facts

    Pius sought a building permit for an office building in a commercial zone.
    The Town’s Department of Environmental Control made a preliminary assessment.
    A positive SEQRA declaration indicated potential significant adverse environmental impact.
    The Director refused the permit and required a DEIS.

    Procedural History

    Pius commenced a CPLR Article 78 proceeding to annul the Director’s determination and compel the permit issuance.
    Supreme Court, Suffolk County, granted the petition.
    The Appellate Division affirmed, relying on *Matter of Filmways Communications v Douglas*.
    The Court of Appeals reversed the Appellate Division’s order and dismissed the petition.

    Issue(s)

    Whether the issuance of a building permit by the Director of Engineering, Building and Housing of the Town of Huntington is a ministerial act exempt from review under the State Environmental Quality Review Act (SEQRA), or whether it constitutes a discretionary “action” requiring environmental review.

    Holding

    No, because the Director possessed discretionary authority over site plan approvals and construction materials, the permit process was an “action” requiring SEQRA review. The prior case, *Filmways*, was misinterpreted; it did not establish a broad rule that all building permits are ministerial.

    Court’s Reasoning

    The Court of Appeals emphasized that SEQRA requires an environmental impact statement for “any action… which may have a significant effect on the environment” (ECL 8-0109[2]). While SEQRA exempts “official acts of a ministerial nature, involving no exercise of discretion” (ECL 8-0105[5][ii]), the Court distinguished the case from *Filmways*. In *Filmways*, the building inspector’s function was deemed ministerial because the building code provided no “latitude of choice.” The Court clarified that *Filmways* should not be interpreted as establishing a blanket rule that all building permit issuances are ministerial.

    Here, the Director had specifically delegated site plan approval powers, including the authority to make case-by-case judgments on site plan design and construction materials. This discretionary power transformed the permit issuance into an “action” subject to SEQRA review. The Court stated that “in light of the Director’s specifically delegated site plan approval powers coupled with the authority to make certain case-by-case judgments on site plan design and construction materials issues, the Town of Huntington’s subdivision regulations and site improvement specifications vests discretion of a kind which qualifies as an unexempted ‘action’ in connection with the issuance of a building permit.”

    Because the issuance was an “action,” the Director, as head of the lead agency, was entitled to require a DEIS. This decision reinforces the importance of examining the specific powers and duties of the issuing authority when determining whether a permit process is subject to SEQRA review. It highlights that even when a permit appears to be a routine matter, discretionary authority can trigger environmental review obligations. The dissent is not mentioned because there was none.

  • Gandolfi v. City of Yonkers, 62 N.Y.2d 995 (1984): Municipal Liability for Negligent Building Permits and Inspections

    62 N.Y.2d 995 (1984)

    A municipality can be held liable for damages proximately caused by its negligence in issuing a building permit or conducting inspections, where the municipality’s actions violate a special duty owed to the injured party.

    Summary

    This case addresses the liability of municipalities for negligence related to building permits and inspections. Plaintiffs sued the City of Yonkers and Westchester County, alleging negligence in issuing a building permit and conducting inspections that led to property damage. The Court of Appeals affirmed the lower court’s decision, holding that municipalities can be held liable for negligence in these areas when a special duty is owed to the injured party, thus establishing a precedent for municipal accountability in construction oversight where a specific duty of care is violated.

    Facts

    The plaintiffs, Valentino Gandolfi et al. and Platzner Organization et al., brought actions against the City of Yonkers, Westchester County, and the Commissioner of Finance of Westchester County, respectively. The suits stemmed from alleged negligence in the issuance of a building permit and the performance of inspections. The plaintiffs claimed that this negligence resulted in property damage and other losses.

    Procedural History

    The Supreme Court initially heard the case. The Appellate Division, Second Department, reversed the Supreme Court’s decision, finding in favor of the plaintiffs and holding the municipalities potentially liable. The City of Yonkers and Westchester County appealed to the Court of Appeals. The Court of Appeals affirmed the Appellate Division’s decision, upholding the potential for municipal liability.

    Issue(s)

    Whether a municipality can be held liable for damages proximately caused by its negligence in issuing a building permit or conducting inspections.

    Holding

    Yes, because a municipality can be held liable for damages proximately caused by its negligence in issuing a building permit or conducting inspections, provided that the municipality’s actions or inactions violated a special duty owed to the injured party.

    Court’s Reasoning

    The Court of Appeals affirmed the decision of the Appellate Division for the reasons stated in the Appellate Division’s opinion. The core of the reasoning is that while municipalities generally owe a duty to the public at large, liability arises when a special duty is created toward a specific individual or class of individuals. This special duty can arise from specific promises or actions by the municipality that give rise to a reasonable expectation on the part of the individual. The court recognized that allowing such suits could create a chilling effect on municipal services but balanced this against the need for accountability where negligence directly and foreseeably harms specific individuals. The court implicitly acknowledged the importance of proper building oversight and the potential for significant harm if such oversight is negligently performed, thereby reinforcing the need for municipalities to exercise due care in these functions when a special relationship exists. This case emphasizes that liability is not automatic but depends on establishing a specific duty owed to the plaintiff beyond the general duty to the public.

  • Van Alstyne v. Village of Horseheads, 62 N.Y.2d 908 (1984): Municipality’s Duty Regarding Building Permits and Property Owner Protection

    Van Alstyne v. Village of Horseheads, 62 N.Y.2d 908 (1984)

    A municipality’s issuance of a building permit does not create a duty to protect property owners from unauthorized modifications to their buildings or theft of building materials, absent a specific assumption of such a duty.

    Summary

    Van Alstyne sued the Village of Horseheads to recover damages for stolen asbestos shingles. The shingles were allegedly stolen by Kenneth Lananger, who had obtained a building permit from the Village by falsely representing himself as the owner of Van Alstyne’s property. The Court of Appeals held that the Village was not liable because the purpose of a building permit is to ensure compliance with construction laws, not to protect owners against unauthorized modifications or theft. Absent an explicit assumption of a duty to verify ownership, the Village had no obligation to do so, and the burden of protecting against unauthorized alterations and theft remains with the property owner.

    Facts

    Kenneth Lananger applied for a building permit from the Village of Horseheads to remodel and enlarge two porches and an entrance on Van Alstyne’s building.

    In his application, Lananger falsely represented himself as the owner of the building.

    The Village issued the building permit to Lananger.

    Lananger allegedly stole asbestos shingles from the building.

    Van Alstyne sued the Village to recover damages for the stolen shingles.

    Procedural History

    The lower court’s decision was appealed to the Appellate Division.

    The Appellate Division’s order was appealed to the New York Court of Appeals.

    The New York Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether the Village of Horseheads owed a duty to Van Alstyne to protect him from the theft of building materials by a person who obtained a building permit by falsely representing himself as the owner of the property.

    Holding

    No, because the purpose of a building permit is to ensure compliance with construction laws, not to protect owners against unauthorized modifications or theft, and the Village did not explicitly assume a duty to verify ownership.

    Court’s Reasoning

    The Court reasoned that the purpose of building permits is to ensure compliance with construction laws and regulations. The Court stated, “Nothing in the ordinances indicates that they are intended to protect owners against unauthorized modifications to their buildings or, indeed, theft of their building materials.”

    The Court emphasized that the application form referring to the applicant as “Owner” did not create a duty on the municipality to protect owners against unauthorized modifications or theft. The court stated, “That the application form refers to the applicant as ‘Owner’ does not thereby impose such a duty of protection on the municipality.”

    The Court found that absent an explicit assumption of a duty to verify ownership, the Village had no obligation to do so. The court stated, “In the absence of even an implicit assumption by the municipality of a duty to verify ownership, the burden of protecting against unauthorized alterations leading to the theft of materials may not be imposed on the Village.”

    The court effectively places the responsibility of protecting against unauthorized alterations and theft on the property owner, absent a specific undertaking by the municipality to provide such protection. This case clarifies the limited scope of a municipality’s duty when issuing building permits, emphasizing compliance with construction laws rather than guaranteeing property owner protection against fraud or theft.

  • Faymor Development Co. v. Board of Standards & Appeals, 45 N.Y.2d 563 (1978): Equitable Estoppel Against City In Zoning Disputes

    45 N.Y.2d 563 (1978)

    A municipality may be equitably estopped from enforcing a zoning change to deny a building permit when the permit holder was prevented from acquiring vested rights due to a combination of community interference and the municipality’s own actions or inaction.

    Summary

    Faymor Development Co. sought to reinstate a building permit that was automatically revoked due to a zoning change. Faymor argued that it was prevented from completing construction and acquiring vested rights because of illegal interference by area residents and delaying tactics by municipal officers. The New York Court of Appeals held that the city was estopped from denying reinstatement of the permit because Faymor’s failure to complete construction was a direct result of the combined actions of protesting residents and the city’s own actions and inaction. The court emphasized that a municipality cannot benefit from its own inaction when it contributes to preventing a permit holder from vesting their rights.

    Facts

    Faymor owned land in Far Rockaway, NY, and obtained a building permit in December 1972 to construct a six-story multiple dwelling, a permitted use under the existing zoning (R3-2). In the summer of 1974, before construction began, the building department revoked the permit based on community objections. The Board of Standards and Appeals (BSA) reinstated the permit in July 1974. Area residents then obstructed construction by physically blocking access to the site beginning August 16. Despite court orders directing them to cease, the protesters continued their obstruction. Faymor requested police assistance, which was not effectively provided. On October 10, the property was rezoned to R3-1, which only allowed one- and two-family homes. On October 11, the building department revoked Faymor’s permit under a zoning resolution stating permits lapse if the foundation is not completed before a zoning change.

    Procedural History

    Faymor appealed to the BSA, which denied reinstatement of the permit. Faymor then filed an Article 78 proceeding to annul the BSA’s determination. The Supreme Court dismissed the petition. The Appellate Division reversed and directed the permit to be reinstated for 103 days, representing the time lost due to the improper revocation, court-ordered stays, and resident actions. The City appealed to the Court of Appeals.

    Issue(s)

    Whether a municipality can be equitably estopped from asserting a landowner’s failure to complete construction as a basis for denying reinstatement of a building permit, when the landowner’s failure to complete construction was caused by a combination of community interference and the municipality’s own actions or inaction.

    Holding

    Yes, because the city’s actions and inaction, combined with the illegal actions of area residents, prevented Faymor from completing its foundation and vesting its rights under the permit. The city cannot now benefit from this failure to complete construction.

    Court’s Reasoning

    The Court of Appeals reasoned that while the BSA typically lacks the power to reinstate a permit after a zoning change unless the foundation is complete, a court can estop the city from asserting this requirement when the city itself contributed to the failure to complete construction. The court distinguished this case from situations where the failure to complete construction was solely the fault of the landowner. Here, Faymor was ready and willing to build, had incurred significant expenses, and was prevented from doing so by a combination of factors. These included the initial improper revocation of the permit, the delaying lawsuits and illegal blockades by area residents, and, critically, the city’s failure to adequately enforce the law and protect Faymor’s right to build. The court highlighted the city’s initial revocation of the permit on technical grounds only after community opposition arose, and the police’s inaction while protesters blocked construction. Quoting the Appellate Division, the Court stated, “[T]he rule of law must prevail. The right to proceed pursuant to a valid building permit, no less than any other civil right, is not to be lost because others resort to the streets, or because governmental authorities have improperly placed hurdles barring the appropriate exercise of such right.” While municipalities typically aren’t liable for damages for failure to provide adequate services (citing Riss v. City of New York), they can be estopped from claiming the benefits of their own inaction (citing Matter of Pokoik v. Silsdorf and Matter of Our Lady of Good Counsel v. Ball). The Court concluded that it would be unfair to allow the city to benefit from Faymor’s failure to complete construction when that failure was a direct result of the combined actions of the community and the municipality’s actions and neglect. The Court emphasized a party can be ordered to do equity and a court’s equitable power to order the board to grant relief does not depend on the existence of statutory authority.

  • Belle Harbor Realty Corp. v. Kerr, 35 N.Y.2d 507 (1974): Municipal Power to Revoke Building Permits Based on Public Health Concerns

    Belle Harbor Realty Corp. v. Kerr, 35 N.Y.2d 507 (1974)

    A municipality may revoke previously granted building permits based on a genuine and dire threat to public health and welfare, but not solely to appease community opposition or as a pretext for preventing development.

    Summary

    Belle Harbor Realty Corp. sought to build a nursing home in New York City. After initial approvals were granted, the city revoked them due to concerns about the inadequacy of the existing sewer system. Belle Harbor sued, arguing the city succumbed to community pressure and zoning changes. The Court of Appeals held that while a municipality can use its police power to prevent conditions dangerous to public health, it must demonstrate a dire necessity, a reasonable solution, and active steps to rectify the problem. The court remanded the case to determine if the revocation was genuinely based on public health concerns or merely a pretext.

    Facts

    Belle Harbor Realty Corp. applied for a permit to construct a four-story nursing home in New York City in 1972.

    The Department of Buildings, Department of Water Resources, and the State Board of Social Welfare issued the necessary approvals between July and September 1972.

    Prior to the issuance of the written permit, local citizens filed a lawsuit to enjoin the city from issuing the permit, citing inadequate sewerage facilities. The lawsuit was dismissed.

    Following complaints of sewer backups, the city investigated the sewerage facilities at the proposed site and discovered the sewers were grossly inadequate, dating back to 1889 with six-inch pipes and open joints.

    Based on this information, the city revoked the prior approvals, citing the deteriorated condition of the sewers.

    Procedural History

    Belle Harbor initiated an Article 78 proceeding to annul the city’s revocation of approvals and compel the city to reissue approvals and permits.

    Special Term dismissed the petition, finding the revocation a reasonable exercise of police power.

    The Appellate Division reversed, directing the city to issue the approvals and permits, relying on Westwood Forest Estates v. Village of South Nyack.

    The New York Court of Appeals reversed the Appellate Division’s order and remanded the case for further proceedings.

    Issue(s)

    Whether the city’s revocation of building approvals was a valid exercise of its police power to prevent conditions dangerous to public health and welfare, or whether the revocation was based solely on a pretext.

    Holding

    No, the court reversed and remanded because a municipality’s police power is limited by the necessity of the situation, and it cannot be invoked merely to appease community opposition without addressing the underlying problem.

    Court’s Reasoning

    The court distinguished this case from Westwood Forest Estates, noting that Westwood involved zoning power and a generalized pollution problem, while this case involves the general police power and an immediate, direct sanitation problem.

    The court recognized a municipality’s right, under its police powers, to prevent conditions dangerous to public health and welfare, citing cases such as Matter of Wulfsohn v. Burden and Shepard v. Village of Skaneateles.

    However, the court emphasized that such restrictions must be kept within the limits of necessity, quoting Arverne Bay Constr. Co. v. Thatcher: “within the limits of necessity”.

    The court stated that a municipality may not invoke its police powers solely as a pretext to assuage strident community opposition. To justify interference with property rights, the municipality must prove: (1) a dire necessity, (2) a reasonably calculated solution, and (3) active steps to rectify the problem.

    The court emphasized the emergency nature of the general police power under such circumstances: “When the general police power is invoked under such circumstances it must be considered an emergency measure and is circumscribed by the exigencies of that emergency.”

    The case was remanded to determine whether the revocation was truly necessary to prevent a public health crisis or based on a pretext.

  • Lefrak Forest Hills Corp. v. Galvin, 40 N.Y.2d 792 (1976): Vested Rights and Zoning Permit Extensions

    Lefrak Forest Hills Corp. v. Galvin, 40 N.Y.2d 792 (1976)

    A property owner does not acquire a vested right to complete construction based on a building permit when the permit was issued during a grace period after a zoning law change, and the owner fails to meet reasonable conditions attached to permit extensions.

    Summary

    Lefrak sought an extension of building permits to construct apartment buildings. The Board of Standards and Appeals denied the extension, finding Lefrak had not substantially completed the foundations by the required date. The Appellate Division reversed, holding that prior extensions and reliance on the permits created vested rights. The New York Court of Appeals reversed, holding that Lefrak did not acquire a vested right because the original permit was issued during a grace period after a zoning change, and Lefrak failed to meet the condition of substantial foundation completion for further extensions. The dissent argued the equities favored the community’s right to benefit from the updated zoning resolution.

    Facts

    In 1960, New York City adopted a zoning resolution prohibiting high-rise apartments in Forest Hills-Kew Gardens, effective December 15, 1961. During the grace period, the Long Island Rail Road sold property to Adson Industries, which filed building plans in 1961 for two 18-story buildings. Permits were issued in July 1963. Adson obtained extensions in 1964, 1965, and 1966. Franklin National Bank, the mortgagee, acquired the property in 1967 after Adson defaulted and secured extensions in 1967, 1968, 1969 and 1970. In 1971, Franklin contracted to sell to Lefrak, who modified the plans to include two 20-story towers and obtained amended permits in August 1971. In December 1971, Lefrak applied for another extension, which the Board denied.

    Procedural History

    The Board of Standards and Appeals denied Lefrak’s application for a building permit extension. The Appellate Division reversed the Board’s decision, directing that the extension be granted. The New York Court of Appeals reversed the Appellate Division, reinstating the Board’s determination.

    Issue(s)

    Whether Lefrak acquired a vested right to complete construction of its apartment buildings based on prior building permit extensions, despite failing to substantially complete the foundations by the deadline.

    Holding

    No, because the original building permit was issued during a grace period following a zoning change, and Lefrak failed to meet the reasonable condition of substantial foundation completion attached to permit extensions.

    Court’s Reasoning

    The Court reasoned that the traditional vested rights doctrine, which protects property owners who have substantially relied on a validly issued permit before a zoning change, did not apply. The original building permit was not issued before the adoption of the 1960 Zoning Resolution; it was issued during the grace period. As such, Lefrak was subject to reasonable conditions for permit extensions. The key condition was the “substantial construction of foundations.” Because Lefrak failed to meet this condition by the deadline, the Board was justified in denying the extension. The Court distinguished this case from situations where the original permit was issued before the zoning change. In those cases, a property owner could argue that their right to build had already vested. Here, the permit was issued under a specific grace period provision. The Court also noted that prior extensions granted by the Board did not bind the Board to perpetuate past errors, stating that “an administrative agency is not bound to perpetuate past errors. On the contrary, it has the power and the duty to correct an erroneous interpretation of the governing statute or even an unwise policy.” The dissenting opinion argued that the equities favored the community’s right to benefit from the 1960 Zoning Resolution. The dissent also pointed out Lefrak’s modifications to the building plans and the numerous prior extensions granted without substantial progress.

  • Dengeles v. Young, 14 A.D.2d 833 (N.Y. 1961): Liability of Administrative Officials for Malicious Acts

    Dengeles v. Young, 14 A.D.2d 833 (N.Y. 1961)

    An administrative official may be held liable for damages resulting from willful and malicious acts, particularly when refusing to perform a ministerial duty after a court order compelling them to act.

    Summary

    This case addresses whether administrative officials can be held liable for damages resulting from the willful and malicious refusal to issue a building permit. The plaintiffs, Dengeles, sought a permit to erect a diner, which was initially denied despite the ordinance allowing restaurants in the area. Even after a court order compelling the issuance of the permit, the officials refused. The court held that the officials could be liable, as their actions were deemed malicious and not protected by immunity, especially after the court order removed any discretionary aspect of their duty. The dissent argued for upholding liability, citing precedent and policy reasons against unbridled administrative power.

    Facts

    The Dengeles sought a building permit to erect a diner in an area where the Town of Hempstead Building Ordinance permitted restaurants.
    Despite the ordinance and previous approvals for similar diner applications, the respondents refused to issue the permit.
    The Dengeles obtained a court order compelling the issuance of the permit.
    The respondents continued to refuse to issue the permit even after the court order.
    The plaintiffs alleged the refusal was willful and malicious.

    Procedural History

    The plaintiffs initially sought a court order compelling the issuance of the permit, which they obtained.
    After the respondents continued to refuse, the plaintiffs filed a civil action seeking damages for the willful and malicious refusal to grant the permit.
    The lower courts likely dismissed the action, leading to this appeal.
    The Appellate Division’s decision in Matter of Dengeles v. Young (3 A.D.2d 758) found that the inspector “willfully refused to grant the permit, and misled and hindered” the appellants.

    Issue(s)

    Whether administrative officials are immune from liability for damages resulting from the willful and malicious refusal to perform a ministerial duty, specifically issuing a building permit, even after a court order compelling them to do so.

    Holding

    Yes, because the alleged acts of the officials, particularly after the court order, exceeded the scope of any discretionary immunity and could be considered malicious and tortious conduct for which damages are recoverable.

    Court’s Reasoning

    The court reasoned that while immunity is extended to officials making decisions common to judicial and legislative organs, this does not excuse the intentional misuse of power by administrative officers.
    The court distinguished between discretionary and ministerial acts. The initial determination of whether a diner qualified as a “restaurant” under the ordinance might have involved some discretion. However, given the prior approvals for similar diner applications, this question was effectively settled.
    After the court order compelling issuance, the duty became purely ministerial. The respondents’ refusal to comply could be viewed as a malicious and tortious act.
    The court cited East Riv. Gas-Light Co. v. Donnelly, stating that if officials determine a party is entitled to a contract but then refuse to enter into it, a court may have cognizance over the matter, even in favor of a private suitor.
    The dissenting opinion emphasized that most jurisdictions hold officials liable for malicious or dishonest acts, transforming otherwise privileged actions into actionable ones.
    The dissent argued that once the court order was issued, any element of judgment or discretion was removed, and the only proper course of action was to obey the order. Refusal at this stage could not be considered privileged.
    The dissent quoted the Appellate Division’s finding in Matter of Dengeles v. Young that the inspector “willfully refused to grant the permit, and misled and hindered” the appellants.
    The dissent highlighted the danger of placing unbridled powers in the hands of administrative officials, arguing it puts rights at the mercy of unscrupulous officials. “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.”