Opinion
May 11, 1987
Appeal from the Supreme Court, Westchester County (Coppola, J.).
Ordered that the judgment is reversed, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a hearing and new determination.
The Supreme Court, Westchester County, improperly dismissed this proceeding without first conducting a hearing. The affidavits submitted raised various triable and disputed factual issues which require a hearing in order to be resolved (CPLR 7804 [h]; see also, Matter of Murphy v. Burkhart, 92 A.D.2d 733; Matter of Masder Bldrs. v. Overton, 15 A.D.2d 551). We point primarily to the question of whether the respondent Ottawa Truck Corporation submitted a bid proposal which failed to comply with the bid specification that the cab and chassis in the garbage trucks which were the subject of the contract "shall be of a proven design presently in production and service" and of whether the respondent municipality improperly waived noncompliance with that specification. Thompson, J.P., Bracken, Rubin and Eiber, JJ., concur.