Demisay, Inc. v. Petito

Petitioner has for several years been attempting to obtain from the town a special exception permit for a nursing home. There have been two hearings before the board, two article 78 proceedings and two appeals to the Appellate Division. In connection with the second appeal, petitioner now moves under CPLR 2512 for an order fixing an amount in lieu of an undertaking. The town opposes the application on the grounds (1) that the town cannot be held liable in damages for the exercise, even though wrongful, of a discretionary function, and (2) that this court is without jurisdiction to make the…