Matter of Clemente v. City of New York
Docket Index No. 819542/24|Appeal No. 6516|Case No. 2025-04344|
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- Filed
- Jurisdiction
- New York
- Court
- Appellate Division of the Supreme Court of the State of New York
- Type
- Opinion
- Case type
- Civil
- Disposition
- Affirmed
- Citation
- 2026 NY Slip Op 02774
- Docket numbers
- Index No819542/24Appeal No6516Case No2025-04344
Appeal from a CPLR article 78 petition that sought to annul a DA's determination discharging a civil-service employee and to obtain immediate back pay
Summary
The Appellate Division, First Department affirmed a Supreme Court (Bronx County) judgment directing a disciplinary hearing under Civil Service Law § 75(1)(c) for petitioner Joshua Clemente, who had been discharged by the Bronx County District Attorney. The court rejected Clemente’s claim for immediate full back pay, explaining that any entitlement to back pay (which may begin 30 days after suspension) and offsets (such as other earnings or unemployment benefits) must be determined at the § 75(3) hearing. The court rejected the remaining arguments and affirmed without costs.
Issues Decided
- Whether the court should order a hearing under Civil Service Law § 75(1)(c) to review the DA's discharge decision
- Whether petitioner is entitled to immediate full back pay pending the § 75 hearing
- Whether offsets to any back pay award (other employment, unemployment benefits) should be determined now or at the hearing
Court's Reasoning
The court concluded that the proper remedy for challenging the DA's discharge is to remit the matter for a statutory Civil Service Law § 75(1)(c) hearing, which permits review of disciplinary discharges. Regarding back pay, the court explained that entitlement and calculation (including any offsets) are factual issues for the § 75(3) proceeding, citing precedent that such determinations are initially for the hearing officer and not for immediate judicial resolution. Because the petition sought relief beyond vacatur and a hearing, that portion was properly denied.
Authorities Cited
- Civil Service Law § 75(1)(c)
- Civil Service Law § 75(3)
- Matter of Johnson v Board of Trustees of Middle Is. Pub. Lib.61 NY2d 1014 (1984)
Parties
- Petitioner
- Joshua Clemente
- Respondent
- City of New York
- Respondent
- Office of the District Attorney, Bronx County
- Judge
- Elizabeth A. Taylor
- Judge
- Webber, J.P.
- Judge
- Moulton
- Judge
- Mendez
- Judge
- Higgitt
- Judge
- Michael
Key Dates
- District Attorney determination date
- 2024-10-17
- Judgment entered (Supreme Court, Bronx County)
- 2025-07-01
- Appellate Division decision date
- 2026-05-05
What You Should Do Next
- 1
Prepare for the § 75 hearing
Petitioner and respondents should gather evidence and witnesses regarding the grounds for discharge and any applicable mitigation or offsets to back pay for presentation at the hearing.
- 2
Address back pay and offsets at hearing
Present documentation of other earnings, unemployment benefits, and losses so the hearing officer can calculate any back pay and apply offsets per Civil Service Law § 75(3).
- 3
Consult appellate counsel about further review
If a party wishes to pursue additional appellate review, they should consult counsel promptly to evaluate grounds and file any necessary applications within court deadlines.
Frequently Asked Questions
- What did the court decide?
- The appellate court affirmed the order sending petitioner to a Civil Service Law § 75 hearing to review his discharge, and denied his request for immediate full back pay.
- Who is affected by this decision?
- Joshua Clemente (the discharged employee) and the Bronx County District Attorney’s Office, because the case returns to a disciplinary hearing to resolve the discharge and any back pay.
- Will the petitioner receive back pay now?
- No. Any back pay entitlement and amount, and whether offsets apply, will be decided at the § 75(3) hearing.
- Can this decision be appealed further?
- Yes, the appellant may seek further appellate review (for example, leave to appeal to the Court of Appeals), subject to applicable deadlines and standards, though this decision affirms the lower court.
The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.
Full Filing Text
Matter of Clemente v City of New York - 2026 NY Slip Op 02774 Matter of Clemente v City of New York 2026 NY Slip Op 02774 May 5, 2026 Appellate Division, First Department In the Matter of Joshua Clemente, Petitioner-Appellant, v City of New York, et al., Respondents-Respondents. Decided and Entered: May 05, 2026 Index No. 819542/24|Appeal No. 6516|Case No. 2025-04344| Before: Webber, J.P., Moulton, Mendez, Higgitt, Michael, JJ. Kreisberg Maitland Mendelberg & O'Hearn LLP, New York (Chelsea C. Hill of counsel), for appellant. Steven Banks, Corporation Counsel, New York (Jonathan A. Popolow of counsel), for respondents. Judgment, Supreme Court, Bronx County (Elizabeth A. Taylor, J.), entered on or about July 1, 2025, which granted the petition brought pursuant to CPLR article 78 to vacate or annul the determination of respondent Office of the District Attorney, Bronx County, dated October 17, 2024, discharging petitioner from his employment, to the extent of directing a hearing pursuant to Civil Service Law § 75(1)(c), unanimously affirmed, without costs. The court properly denied that portion of the petition seeking a judgment that petitioner be immediately awarded "full back pay." While petitioner may ultimately be entitled to backpay starting 30 days after his suspension, the extent of such backpay, if any, and the application of any offsets to any amount awarded such as from other employment or from unemployment benefits, is a matter that should be addressed in the first instance at the hearing 0rdered by the court ( see Civil Service Law § 75 [3]; Matter of Johnson v Board of Trustees of Middle Is. Pub. Lib. , 61 NY2d 1014, 1016 [1984]). We have considered petitioner's remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: May 5, 2026