Archer v. Town of Wheatfield

—Appeal from a judgment of Supreme Court, Niagara County (Fricano, J.), entered April 4, 2002, which granted respondents’ motion to dismiss the CPLR article 78 petition. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the petition is reinstated. Memorandum: Petitioner commenced this proceeding seeking reinstatement to her position as court clerk to a Wheatfield town justice, back pay and compensatory and punitive damages. Supreme Court erred in granting respondents’ motion to dismiss the petition without conducting a hearing pursuant to CPLR 7804 (h). The parties’ submissions raise triable issues of fact whether petitioner was discharged from her position with “the advice and consent” of the Town Justice (Town Law § 20 [1] [a]) or whether the Town Justice acquiesced in her discharge as the result of duress (see Matter of O’Hagan v Board of Trustees of N.Y. City Fire Dept. Pension Fund, Art. 1-B, 72 AD2d 501). The parties’ submissions also raise a sharply disputed factual issue whether the discharge of petitioner was politically motivated and thus in violation of her constitutional rights (see Matter of Basher v Town of Evans [appeal No. 1], 112 AD2d 4). Present — Green, J.P., Pine, Hurl-butt, Burns and Gorski, JJ.