Opinion
No. 194 SSM 31.
Decided December 21, 2006.
APPEAL from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered July 6, 2006. The Appellate Division, with two Justices dissenting, (1) reversed, on the law, a judgment of the Supreme Court, Albany County (Nicholas A. Clemente, J.), entered in a proceeding pursuant to CPLR article 78, which had granted a petition to reinstate petitioner to the position of State Trooper with back pay, and (2) dismissed the petition.
Matter of Skrypek v. Bennett, 31 AD3d 827, reversed.
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.
Before: Chief Judge KAYE and Judges CIPARICK, ROSENBLATT, GRAFFEO, READ, SMITH and PIGOTT concur in memorandum.
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 AD2d 827 [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.