DINERMAN v. City of New York, appellant. (1997)

In an action, inter alia, to recover damages for the wrongful issuance of a building permit, the defendant City of New York appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Lerner, J.), dated January 19, 1996, as granted that branch of the plaintiff's motion which was to dismiss the affirmative defense of governmental immunity and denied its cross motion to dismiss the complaint and the cross claim insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the plaintiff's motion which was to dismiss the defense of governmental immunity is denied, the cross motion is granted, and the complaint and cross claim are dismissed insofar as asserted against the appellant.

The plaintiff asserts in his complaint that the defendant City of New York wrongly issued a building permit to his neighbor, permitting the construction of a garage which did not comply with the applicable zoning laws.   Whether to grant a building permit “is a discretionary determination and the actions of the government in such instances are immune from lawsuits” (City of New York v. 17 Vista Assocs., 84 N.Y.2d 299, 307, 618 N.Y.S.2d 249, 642 N.E.2d 606;  see, Arteaga v. State of New York, 72 N.Y.2d 212, 217, 532 N.Y.S.2d 57, 527 N.E.2d 1194;  Tarter v. State of New York, 68 N.Y.2d 511, 510 N.Y.S.2d 528, 503 N.E.2d 84;  Tango v. Tulevech, 61 N.Y.2d 34, 40, 471 N.Y.S.2d 73, 459 N.E.2d 182;  Rottkamp v. Young, 15 N.Y.2d 831, 257 N.Y.S.2d 944, 205 N.E.2d 866, affg 21 A.D.2d 373, 249 N.Y.S.2d 330, for reasons stated at the App.Div.).

MEMORANDUM BY THE COURT