Basher v. Town of Evans

112 A.D.2d 4, 490 N.Y.S.2d 948, 1985 N.Y. App. Div. LEXIS 50630

Opinion

Judgment unanimously reversed, on the law, without costs, and matter remitted to Supreme Court, Erie County, for further proceedings, in accordance with the following memorandum: On this appeal from a judgment granting the CPLR article 78 petition of Basher and Austin, which, inter alia, reinstated them to their former posts as clerks to the Evans Town Justices, we find that the issue of whether the discharge of petitioners was politically motivated in violation of petitioners’ constitutional rights is a sharply disputed issue of fact (see, Elrod v Burns, 427 US 347; Matter of McBride v Griffin, 62 AD2d 520). The court below therefore erred in failing to order a fact-finding hearing on this issue, pursuant to CPLR 7804 (h).

Upon remittitur, the court below must order joined as necessary parties all persons whose jobs might be jeopardized by reinstatement of petitioners (see, Matter of Gill v Dutchess County Bd. of Coop. Educ. Servs., 99 AD2d 836). (Appeal from judgment of Supreme Court, Erie County, Marshall, J. — art 78.) Present— Dillon, P. J., Hancock, Jr., Callahan, Green and Pine, JJ.