IN RE: Gerald H. ABERBACH (2026)

Order, Supreme Court, New York County (Lori S. Sattler, J.), entered November 25, 2024, which denied petitioner's motion to vacate a determination by respondent New York State Department of Corrections and Community Supervision (DOCCS), dated March 19, 2024, dismissing petitioner from service, unanimously affirmed, without costs.

Petitioner commenced this proceeding to challenge the August 10, 2022 determination by DOCCS's Deputy Commissioner, after a hearing, dismissing petitioner from service.  On October 3, 2023, Supreme Court found that it was unclear whether the Deputy Commissioner had considered the entire record and remitted to DOCCS for “a de novo determination” on the same hearing record.  On March 19, 2024, DOCCS's Acting Commissioner notified petitioner that, having “reviewed the hearing record, the Hearing Officer's findings, and his recommendation,” as well as petitioner's “record of employment,” the penalty assessed was “dismissal from service.”  Petitioner then filed an order to show cause in the same article 78 proceeding to enforce the court's prior order, asserting that no de novo review was apparent on the face of the March 19, 2024 determination.

Supreme Court properly denied the motion, as judicial review of DOCCS's determination following remittal was available “only through a new article 78 proceeding” (Inland Vale Farm Co. v. Stergianopoulos, 65 N.Y.2d 718, 719 n [1985];  see also Matter of Sofair v State Univ. of Upstate Med. Ctr. Coll. of Med., 44 N.Y.2d 475, 479 [1978] ).  Contrary to petitioner's assertion, that the matter was remitted to a state agency does not permit review within the same article 78 proceeding of new agency action following remittal (see Matter of Tafari v. Stanford, 133 AD3d 1013, 1013 [3d Dept 2015], lv denied 26 NY3d 917 [2016];  Matter of La Bounty v. McSweeney, 216 A.D.2d 757, 757–758 [3d Dept 1995], appeal dismissed 86 N.Y.2d 885 [1995] ).

We need not consider petitioner's argument, raised for the first time in his reply brief, that his motion should have been converted to a new proceeding in the interest of justice under CPLR 103(c) (see JPMorgan Chase Bank, N.A. v Luxor Cap., LLC, 101 AD3d 575, 576 [1st Dept 2012] ).

We have considered petitioner's remaining arguments and find them unavailing.