¶1OPINION OF THE COURT
¶2Memorandum.
¶3The order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court reinstated.
¶4When 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 *920of back pay for the period of his prehearing suspension exceeding 30 days.
¶5Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read, Smith and Pigott concur in memorandum.
¶6On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.