Hladik v. Town of Malta — 55 N.Y.2d 786

Majority

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Charles R. Hladik et al., Appellants, v Town of Malta et al., Respondents, et al., Defendants.

Argued November 19, 1981;

decided December 17, 1981

p. 787

APPEARANCES OF COUNSEL

Arnold M. Gordon for appellants.

Michael M. Emminger and Francis E. Lehner for respondents.

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OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs, to the extent of denying the motion to dismiss the fifth cause of action set forth in the complaint as against defendant August Roerig, individually.

Except as indicated, we agree with the Appellate Division, and for the reasons stated in the decision of Justice Robert C. Williams at Supreme Court, that the complaint fails to state a cause of action against defendants. As to the fifth cause of action, however, although the individual defendant is referred to as building inspector of the Town of Malta, this appears to be a description of his official title rather than a characterization of the capacity in which he is sued. The fair intendment of the pleading is to state a cause of action (for conspiracy to defraud plaintiffs) against Roerig in his individual capacity, beyond the shelter of sovereign immunity.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order modified, with costs to appellants against respondent Roerig and to respondent Town of Malta against appellants, in accordance with the memorandum herein and, as so modified, affirmed.