
    Town of Harrison, Appellant, v Charles G. Balancia, Respondent.
    [637 NYS2d 24]
   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.  