Mallwitz v. State

¶1— Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Inasmuch as we find no merit to petitioner’s cross appeal and no reason for not proceeding expeditiously with the administrative hearing, we vacate the stay of the disciplinary proceeding. Respondents’ answer raises factual issues pertaining to whether petitioner, through his own dilatory conduct, has forfeited his claim to back pay under subdivision 3 of section 75 of the Civil Service Law (see Gerber v New York City Housing Auth., 42 NY2d 162; Matter of Fusco v Griffin, 67 AD2d 827). Accordingly, that part of the *787order directing that petitioner receive full back pay and allowances is reversed and the matter is remitted to Special Term for a hearing on the question of responsibility for the delay (see Gerber v New York City Housing Auth., supra, p 167). The hearing should be conducted following the completion of administrative proceedings. (Appeals from order of Supreme Court, Monroe County, Rosenbloom, J. — art 78.) Present — Hancock, Jr., J. P., Doerr, Denman, Boomer and Schnepp, JJ.