In the Matter of Randall R. Skrypek vs. Wayne Bennett, as Superintendent of the New York State Police, No. 194 SSM 31 (N.Y. 2006)

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This memorandum is uncorrected and subject to revision before publication in the New York Reports.

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3 No. 194 SSM 31

In the Matter of Randall R. Skrypek et al., Appellants, v. Wayne E. Bennett, as Superintendent of the New York State Police, et al., Respondents.

Submitted by Michael P. Ravalli, for appellants.

Submitted by Frank K. Walsh, for respondents.

MEMORANDUM:

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, 67 AD2d 827 [4th Dept 1979]). Accordingly, petitioner is entitled to an award of back pay for the period of his pre-hearing suspension exceeding thirty days.

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On review of submissions pursuant to section 500.11 of the Rules, order reversed, with costs, and judgment of Supreme Court, Albany County, reinstated, in a memorandum. Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read, Smith and Pigott concur.

Decided December 21, 2006

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