Posted by: Patricia Salkin | April 6, 2019

NY Appellate Court Finds that Town Officials had Immunity for Statements about Property Contamination

This post was authored by Amy Lavine, Esq.

In a decision issued in April, a New York appellate court held that absolute governmental immunity attached to statements made by a town supervisor and a town board member about waste contamination on property owned by a sewage and septic system business. The court emphasized that environmental conditions such as sewage dumping were a matter falling under the ambit of the town officials’ duties, and their statements about the property were also made discreetly to state regulators rather than being broadcast more publicly. In light of these circumstances, absolute immunity was appropriate and the property owner’s claims for defamation and interference with business relations were properly dismissed.

The circumstances of this case began when the New York Department of Environmental Conservation (DEC) investigated complaints in 2014 and 2015 regarding illegal dumping in the Town of Tusten on property owned by Enviroventures, a sewer and septic system business. Although no violations were found during these investigations, the town supervisor and a member of the town board subsequently complained to DEC about “septic dumping” on the property and claimed the raw sewage was making town children sick. DEC conducted another inspection after receiving these complaints and while it didn’t uncover any raw sewage, it did issue a violation to Enviroventures for depositing eggshell waste on the property. In response to what it saw as baseless complaints, Enviroventures responded by suing the town supervisor and board member for defamation, intentional and tortious interference with business relations, and prima facie tort.

The Appellate Division held on appeal that the trial court properly dismissed Enviroventures’ claims based on the town officials’ governmental immunity. “Town supervisors and town board members,” the court explained, “are afforded absolute immunity from liability for defamation ‘with respect to statements made during the discharge of [their] responsibilities about matters which come within the ambit of those duties.” This immunity only extends to communications that are relevant to matters within their competence, however, and the determination as to whether town officials are entitled to immunity requires an analysis of the content of their statements and the circumstances in which they were made.

In considering the circumstances of this case, the court acknowledged Enviroventures’ contention that the town defendants, “by reason of their elected positions,” had a substantial influence over the town’s affairs, as well as its allegation that their unfounded complaints had resulted in DEC’s issuance of the eggshell waste violation. The court noted that the town officials were not required by law to report to DEC about property conditions making children sick, but it concluded that their discretionary reporting of these issues was nevertheless within the scope of their official governmental duties. Additionally, the court found that there was no “totally unwarranted conduct” in the manner by which the town officials made these communications, as their complaints were communicated to DEC officials “discreetly,” either by phone or email, rather than being more widely disseminated in media releases or public statements. The court accordingly determined that the town officials were entitled to absolute immunity, and because all of Enviroventures’ claims were based on these protected communications the complaint was appropriately dismissed for failure to state a cause of action.

Enviroventures, Inc. v Wingert, 2019 NY Slip Op 02605 (3d Dept. 4/4/2019).


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