Opinion
May 14, 1982
Appeal from the Supreme Court, Onondaga County, O'Donnell, J.
Present — Simons, J.P., Hancock, Jr., Callahan, Denman and Moule, JJ.
Judgment unanimously modified and, as modified, affirmed, without costs. Memorandum: Petitioner, a chemist in the Syracuse Police Laboratory, was suspended without pay on January 5, 1980 pending charges on grounds of misconduct. After a hearing he was found guilty of all charges and dismissed from his job; attempts to change this determination have been unsuccessful ( Matter of Strader v. Sardino, 88 A.D.2d 790). In this appeal respondent challenges the award of back pay to petitioner from February 4, 1980 to April 29, 1981 in the sum of $17,559.69. Petitioner should not have received compensation for the period from February 29, 1980 to June 5, 1980 as this delay was occasioned by his action in obtaining a stay ( Matter of De Marco v. City of Albany, 75 A.D.2d 674); therefore, using a per diem of $39.02 we reduce the amount of his back-pay award to $13,774.75.