Santangelo v. State

Denman, J. (concurring).

I would affirm the judgment for reasons stated in the memorandum decision in the Court of Claims (Santangelo v State of New York, 103 Misc 2d 578 [Lowery, J.]). The majority adopts the position that all determinations made by a State functionary in the exercise of discretion are quasi-judicial and thus entitled to absolute immunity. I cannot espouse that view nor do I read Tango v Tulevech (61 NY2d 34), as requiring that we do so. If that were the import of Tango, a significant body of law recognizing the potential liability of the State for discretionary acts would be wiped out sub silentio. (See, e.g., Williams v State of New York, 308 NY 548; Weiss v Fote, 7 NY2d 579; Brownshield v State of New York, 76 AD2d 849; Welch v State of New York, 74 AD2d 661; Taylor v State of New York, 36 AD2d 878.)

Boomer, O’Donnell and Schnepp, JJ., concur with Hancock, Jr., J. P.; Denman, J., concurs in an opinion.

Judgment affirmed, without costs.