Appellate court backs Tusten decision

FRITZ MAYER
Posted 5/1/19

ALBANY, NY — On April 4, a New York State Appellate Court upheld a decision by a lower court that Town of Tusten Supervisor Carol Wingert and council member Brandi Merolla had immunity from a …

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Appellate court backs Tusten decision

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ALBANY, NY — On April 4, a New York State Appellate Court upheld a decision by a lower court that Town of Tusten Supervisor Carol Wingert and council member Brandi Merolla had immunity from a lawsuit brought by businessman and former council member Ned Lang.

According to the decision, in 2014 and 2015 Wingert and Merolla notified the NY Department of Environmental Conservation (DEC) that septic waste was being dumped on Lang’s property and that “neighboring children were becoming sick from raw sewage.” The DEC investigated and apparently found no sewage dumping but did issue a violation for “eggshell waste” being placed on the property.

Lang sued saying that Wingert and Merolla defamed him and interfered with his business. The lower court dismissed the lawsuit based on the legal precedent that Wingert and Merolla had “absolute immunity” regarding their report to the DEC.

The lower court ruled at the time, “Town supervisors and town board members 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.’”

Had Wingert and Merolla issued a press release about the alleged dumping, that may have voided the immunity, but the court said that was not the case. The court wrote, “discretionary reporting of such conditions is not outside—and, conversely, is consistent with—the scope of those officials’ duties …

“The complaint does not include any allegation based on defendants’ individual capacities or any totally unwarranted conduct… the reports were made discreetly to regional DEC employees, not broadcast in public statements or press releases … Thus, absolute immunity applies. Because the statements are covered by absolute immunity,and all the causes of action against defendants are based on those statements, Supreme Court properly concluded that the complaint failed to state a cause of action against defendants.”

news, albany, New York, Town of Tusten, DEC, septic waste

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