Tango v. Tulevech

In Tango v Tulevech, 61 NY2d 34 [1983] in which a probation officer's refusal to relinquish custody of two children to the plaintiff was later determined to be erroneous, the Court of Appeals found that absolute im-munity shielded the municipal actor from liability because "even if the probation officer's ultimate determina-tion was incorrect . . . she acted within the scope of her discretionary authority" (61 NY2d at 41-42). The Court went on to state that because "she was exercising her judgment in determining the proper conduct of her office and given the discretionary nature of her acts, the question of bad faith or malice becomes irrelevant under the rule stated in Rottkamp v Young " (61 NY2d at 42). The Court of Appeals, citing Prosser, Torts ( 132 at 990 [4th ed]), acknowledged that "almost any act admits some discretion in the manner of performance, even driving a nail, " but distinguished between min-isterial acts, to which governmental immunity does not attach, and discretionary acts. The Court summarized the general rule as follows: " discretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result" (Tango, 61 N.Y.2d at 41).