We do not agree with the majority that, on the facts presented, a determination cannot be made of the critical issue of whether the act complained of was a discretionary or a ministerial one.
The Legislature has charged EnCon with the responsibility of carrying out the environmental policy of the State relating to the protection of the environment and control of air pollution. (Environmental Conservation Law, § 3-0301; 6 NYCRR 215.3.) The duty imposed upon EnCon was a duty to the public in the first instance, and when it denied claimant’s application for an open burning permit EnCon was acting pursuant to statutory authority and in a quasi-judicial capacity which requires the exercise of judgment and discretion. As the majority recognizes, the State’s waiver of immunity and assumption of liability has never been extended to redress individual wrongs which may have resulted from an error in the exercise of judgment by an officer of the State in the performance of his duty (Gross v State of New York, 33 AD2d 868). The court below characterized the acts of EnCon as arbitrary and capricious from which, it concluded, the State should not be immunized, and the majority appears to be of the same opinion. It is clear, however, that the mere fact that an employee or agent of EnCon may have been mistaken in his statement of departmental policy concerning issuance of the permit in question, and even though EnCon may have acted arbitrarily and capriciously in denying the permit, we are dealing with an area of governmental activity where the officer and sovereign power are protected from liability in damages and for which the State has not waived its immunity. (Matter of Karras v State of New York, 48 AD2d 748; Burgundy Basin Inn v State of New York, 47 AD2d 692, mot for lv to app den 37 NY2d 706; Gross v State of New York, supra; Bernkrant v State of New York, 26 AD2d 964.)
Claimant is not entitled to the relief sought as a matter of law. The order should be reversed and the claim dismissed.
Greenblott, J. P., and Sweeney, J., concur with Main, J.; Koreman and Reynolds, JJ., dissent and vote to reverse in an opinion by Koreman, J.
*257Order affirmed, with costs.