Opinion
CA 04-00095.
July 9, 2004.
Appeal from a judgment of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered April 24, 2003. The judgment was entered, upon a jury verdict, awarding plaintiff damages against defendant.
Present — Pigott, Jr., P.J., Pine, Kehoe, Martoche and Hayes, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted in its entirety and the amended complaint is dismissed.
Memorandum: Defendant appeals from a judgment entered upon a jury verdict in favor of plaintiff on the sole cause of action submitted to the jury, alleging tortious interference with contract with respect to D G Motors, Inc. (D G), one of plaintiff's lessees. After D G and plaintiff entered into their lease agreement, D G was notified by defendant's Commissioner of Buildings (Commissioner) that it could no longer engage in its business of selling used cars at the site of the leasehold because it was thereby in violation of defendant's zoning ordinances. As a result of that determination, D G vacated the premises, and plaintiff thereafter commenced this action alleging, inter alia, tortious interference with its contract with D G. We agree with defendant that Supreme Court erred in refusing to dismiss that cause of action and, instead, should have granted in its entirety defendant's motion seeking dismissal of the amended complaint at the close of proof. It is well settled that a public officer may not be held liable for a discretionary determination made in the course of his or her official duties. It is undisputed that the determination of the Commissioner was discretionary and made in the course of his official duties and, thus, defendant cannot be held liable for tortious interference with contract with respect to D G ( see Cristo Bros. v. Troy Urban Renewal Agency, 116 AD2d 793, affd 68 NY2d 819; Tango v. Tulevech, 61 NY2d 34, 40).