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Matter of Archer v. Town of Wheatfield

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 30, 2002
300 A.D.2d 1108 (N.Y. App. Div. 2002)

Opinion

CA 02-01440

December 30, 2002.

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.

KEVIN J. BAUER, ALBANY, FOR PETITIONER-APPELLANT.

ROBERT J. O'TOOLE, NIAGARA FALLS, FOR RESPONDENTS-RESPONDENTS.

PRESENT: GREEN, J.P., PINE, HURLBUTT, BURNS, AND GORSKI, JJ.


MEMORANDUM AND ORDER

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 [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 A.D.2d 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 A.D.2d 4).


Summaries of

Matter of Archer v. Town of Wheatfield

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 30, 2002
300 A.D.2d 1108 (N.Y. App. Div. 2002)
Case details for

Matter of Archer v. Town of Wheatfield

Case Details

Full title:MATTER OF SALLY P. ARCHER, PETITIONER-APPELLANT, v. TOWN OF WHEATFIELD…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Dec 30, 2002

Citations

300 A.D.2d 1108 (N.Y. App. Div. 2002)
750 N.Y.S.2d 925

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