Opinion
June 23, 1986
Appeal from the Supreme Court, Kings County (Hurowitz, J.).
Judgment reversed insofar as appealed from, on the law, without costs or disbursements, and matter remitted to the Supreme Court, Kings County, for a trial in accordance herewith.
The petitioner commenced the instant proceeding to compel her reinstatement to the position of railroad clerk, alleging that her resignation from the appellants' employ was involuntary and procured by duress. The appellants denied this allegation in their answer, and submitted an affidavit of an employee who was present when the petitioner resigned and who denied that the petitioner was subjected to any coercive tactics or statements. Based upon these papers, Special Term ordered the petitioner's reinstatement. We now reverse the judgment insofar as appealed from.
CPLR 7804 (h) expressly provides that a trial must be conducted "forthwith" to resolve any triable issue of fact which is raised in a CPLR article 78 proceeding. The conflicting affidavits submitted by the parties clearly create a sharp factual dispute concerning the voluntariness of the petitioner's resignation. Hence, a trial is necessary to resolve the issue of whether said resignation was made under duress (see, CPLR 7804 [h]; Matter of Cacchioli v. Hoberman, 31 N.Y.2d 287; Matter of Kinney v Miller, 37 A.D.2d 684; see generally, Matter of Lacey v Coughlin, 97 A.D.2d 824). Weinstein, J.P., Niehoff, Kunzeman and Spatt, JJ., concur.