Town of Harrison v. Balancia

Appellate Division of the Supreme Court of New York

Town of Harrison v. Balancia

223 A.D.2d 638, 637 N.Y.S.2d 24, 1996 N.Y. App. Div. LEXIS 439

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 22, 1996

StatusPublished

This text of 223 A.D.2d 638 (Town of Harrison v. Balancia) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Town of Harrison v. Balancia, 223 A.D.2d 638, 637 N.Y.S.2d 24, 1996 N.Y. App. Div. LEXIS 439 (N.Y. Ct. App. 1996).

Pincite

Opinion

In an action, inter alia, to recover damages for conversion, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Wood, J.), entered November 2, 1994, as granted those branches of the defendant’s motion which were for summary judgment dismissing the complaint and for summary judgment on his first counterclaim.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, those branches of the defendant’s motion which were for summary judgment dismissing the complaint and for summary judgment on his first counterclaim are denied, and the complaint is reinstated.

The plaintiff, Town of Harrison, commenced this action alleging that the defendant, the Town’s former elected supervisor, caused the Town Board to pay him additional compensation above that fixed by law two weeks before the expiration of his term. In response, the defendant alleged that the Town mistakenly failed to pay half of his salary during his first year in office, and that the payment complained of was merely to compensate him for this mistake. In opposition to the defendant’s motion for summary judgment, the Town produced sufficient evidence to create an issue of fact as to whether the defendant in fact waived half of his salary during his first year in office. Since there is an issue of fact as to the waiver, the propriety of the payment of additional compensation to the defendant is called into question, and the matter should be tried on the merits. Bracken, J. P., O’Brien, Ritter, Friedmann and Goldstein, JJ., concur.

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In an action, inter alia, to recover damages for conversion, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Wood, J.), entered November 2, 1994, as granted those branches of the defendant’s motion which were for summary judgment dismissing the complaint and for summary judgment on his first counterclaim.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, those branches of the defendant’s motion which were for summary judgment dismissing the complaint and for summary judgment on his first counterclaim are denied, and the complaint is reinstated.

The plaintiff, Town of Harrison, commenced this action alleging that the defendant, the Town’s former elected supervisor, caused the Town Board to pay him additional compensation above that fixed by law two weeks before the expiration of his term. In response, the defendant alleged that the Town mistakenly failed to pay half of his salary during his first year in office, and that the payment complained of was merely to compensate him for this mistake. In opposition to the defendant’s motion for summary judgment, the Town produced sufficient evidence to create an issue of fact as to whether the defendant in fact waived half of his salary during his first year in office. Since there is an issue of fact as to the waiver, the propriety of the payment of additional compensation to the defendant is called into question, and the matter should be tried on the merits. Bracken, J. P., O’Brien, Ritter, Friedmann and Goldstein, JJ., concur.

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Bluebook (online)

223 A.D.2d 638, 637 N.Y.S.2d 24, 1996 N.Y. App. Div. LEXIS 439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-harrison-v-balancia-nyappdiv-1996.