Charles O. Desch, Inc. v. State , 400 N.Y.S.2d 28 ( 1977 )

Cross appeals from a judgment in favor of claimant, entered October 27, 1976, upon a decision of the Court of Claims. We previously considered this case on a motion to dismiss the claim (Charles O. Desch, lac. v State of New York, 50 AD2d 253). The facts and circumstances giving rise to this claim are amply set forth in our opinion therein. In affirming the Court of Claims’ order denying the motion to dismiss, a majority of this court concluded that the critical issue was whether the act in question was discretionary or ministerial and that the record did not contain sufficient facts to make that determination. The record now reveals that the application for the burning permit was denied by an EnCon senior sanitary engineer and based solely on what he believed to be the departmental policy against open burning on lands under EnCon’s jurisdiction. Claimant, however, maintains that a denial on such a basis without a full review on the merits establishes that no discretion was exercised. We disagree. A fair reading of the department’s regulations (6 NYCRR 215.3) demonstrates that EnCon has the apparent discretion to approve or disapprove an application for a burning permit and we so held on the previous appeal. Since the record now reveals that the appropriate reviewing officer passed on claimant’s application, we are of the view that the State is not liable in damages (Gross v State of New York, 33 AD2d 868; Rottkamp v Young, 21 AD2d 373, affd 15 NY2d 831). The judgment should be reversed. In view' of this determination we need not pass on the cross appeal. Judgment reversed, on the law and the facts, and claim dismissed, without costs. Greenblott, J. P., Sweeney, Kane, Mahoney and Larkin, JJ., concur.