IN RE: Randall R. SKRYPEK et al. (2006)

Court of Appeals of New York.

IN RE: Randall R. SKRYPEK et al., Appellants, v. Wayne E. BENNETT, as Superintendent of the New York State Police, et al., Respondents.

Decided: December 21, 2006

Gleason, Dunn, Walsh & O'Shea, Albany (Michael P. Ravalli and Thomas F. Gleason of counsel), for appellants. Eliot Spitzer, Attorney General, Albany (Frank K. Walsh, Caitlin J. Halligan, Daniel Smirlock and Andrea Oser of counsel), for respondents.

OPINION OF THE COURT

The order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court reinstated.

When both the employer and employee are equally responsible for the delay in a disciplinary hearing, as is the case here, the employee may not properly be considered to have waived his right to back pay (see Matter of Fusco v. Griffin, 67 A.D.2d 827, 413 N.Y.S.2d 75 [4th Dept.1979] ). Accordingly, petitioner is entitled to an award of back pay for the period of his prehearing suspension exceeding 30 days.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.

MEMORANDUM.

Chief Judge KAYE and Judges CIPARICK, ROSENBLATT, GRAFFEO, READ, SMITH and PIGOTT concur in memorandum.

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