Charles O. Desch, Inc. v. State

Koreman, J. (dissenting).

We do not agree with the majority that, on the facts presented, a determination cannot be made of the critical issue of whether the act complained of was a discretionary or a ministerial one.

The Legislature has charged EnCon with the responsibility of carrying out the environmental policy of the State relating to the protection of the environment and control of air pollution. (Environmental Conservation Law, § 3-0301; 6 NYCRR 215.3.) The duty imposed upon EnCon was a duty to the public in the first instance, and when it denied claimant’s application for an open…