The Third Department determined that the Commissioner of Labor was immune from a lawsuit stemming from her orders to seize and destroy fireworks. At the time of the seizure and destruction, the Commissioner believed the fireworks were “explosives” within the meaning of Labor Law 451 and that the storage of the fireworks violated Labor Law 453. It was subsequently determined by the Industrial Board of Appeals (IBA) that the fireworks were not “explosives” within the meaning of the Labor Law. In finding that the Commissioner could not be sued for her exercise of discretion (seizing and destroying the fireworks), the court wrote:
As relevant here, this statute authorizes the Commissioner “to seize and impound any explosives found within this state . . . which are in apparent violation” of Labor Law article 16, “where the [C]ommissioner has reason to believe that public safety is endangered by such explosives” (Labor Law § 460  [emphases added]). Further, “where, in the opinion of the [C]ommissioner, the . . . storage . . . or location of explosives . . . [represents] a danger to public safety, the [C]ommissioner may, without [a] hearing and without liability . . . to the owner . . . direct the seizure and destruction of such explosives” (Labor Law § 460  [emphasis added]).
Under the … statutory authority, the Commissioner was empowered – in her discretion – to seize explosives that appeared to be in violation of Labor Law article 16 if she had reason to believe that they endangered public safety, and to order their destruction “without liability.” Under settled law, “the common-law doctrine of governmental immunity continues to shield public entities from liability for discretionary actions taken during the performance of governmental functions” … That is, “[g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the [claimant]” … . The Commissioner's determination under Labor Law § 460 to order the seizure and, later, the destruction of the fireworks on the belief – albeit later determined by the IBA to be mistaken – that they constituted “explosives” within her jurisdiction under Labor Law former § 451 (1) was the epitome of a discretionary judgment call and an action taken in the performance of her official duties and governmental functions. Esposito v State of New York, 515963, 3rd Dept 12-5-13