Fusco v. Griffin

• Decision Date: 25 January 1979
• Citation: 413 N.Y.S.2d 75,67 A.D.2d 827
• Parties: Application of Samuel FUSCO, Appellant, v. James GRIFFIN, as Mayor of the City of Buffalo, Robert E. Whelan, as Comptroller and James Cunningham, as Police Commissioner, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 75

413 N.Y.S.2d 75

67 A.D.2d 827

Application of Samuel FUSCO, Appellant, v. James GRIFFIN, as Mayor of the City of Buffalo, Robert E Whelan, as Comptroller and James Cunningham, as Police Commissioner, Respondents.

Supreme Court, Appellate Division, Fourth Department.

Jan. 25, 1979.

Nicholas J. Sargent, Buffalo, for appellant.

Joseph P. McNamara, Corp. Counsel, Buffalo, by Margaret Anderson, Buffalo, for respondents.

Before CARDAMONE, J. P., and SIMONS, DILLON, HANCOCK and WITMER, JJ.

MEMORANDUM:

This is an appeal from a judgment of Special Term dismissing a petition seeking placement of appellant's name on the payroll of the City of Buffalo and payment of appellant's accrued salary from November 1, 1977 (the date petitioner's name was removed from the payroll). The question before us concerns whether appellant may be considered to have waived his right to back pay because of his alleged responsibility for the delay in holding a hearing on the second set of charges lodged against him by respondents. These charges arise out of appellant's refusal to submit to questioning concerning the original charges against him. Section 75 (subd. 3) of the Civil Service Law provides that an employee may be suspended without pay for a period not exceeding thirty days. If a delay in proceeding beyond the thirty day limit is occasioned by the conduct of the suspended employee he may properly be considered to have waived any claim to back pay (Gerber v. New York City Housing Auth., 42 N.Y.2d 162, 397 N.Y.S.2d 608, 366 N.E.2d 268; Matter of Amkraut v. Hults, 21 A.D.2d 260, 263, 250 N.Y.S.2d 171, 173, affd. 15 N.Y.2d 627, 255 N.Y.S.2d 672, 203 N.E.2d 923). This principle, however, is "circumscribed in nature and should be limited to circumstances of gravity * * *. In the ordinary situation there should be no burden upon a suspended employee to press for a hearing" (Gerber v. New York City Housing Auth., supra, 42 N.Y.2d p. 166, 397 N.Y.S.2d p. 610, 366 N.E.2d p. 271). Thus, where both parties are equally responsible for the delay, the burden of going forward rests on the department. Here, the record indicates that the delay was a result of the failure of both parties to press forward with the selection of a hearing officer. The appellant did not engage in conduct calculated to frustrate the administrative process and was no more responsible for the delay than was the city. Under the circumstances, it cannot be said that appellant's conduct was such as to...