
    [861 NE2d 812, 829 NYS2d 448]
    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.
    Decided December 21, 2006
    APPEARANCES OF COUNSEL
    
      Gleason, Dunn, Walsh & O’Shea, Albany (Michael E 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

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 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.

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read, Smith and Pigott concur in memorandum.

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