A New York court has upheld the dismissal of Gerald H. Aberbach from the New York State Department of Corrections and Community Supervision (DOCCS). The Appellate Division of the Supreme Court ruled on October 1, 2026, affirming the decision made by DOCCS to terminate Aberbach's employment. This ruling affects Aberbach and potentially sets a precedent for how similar cases are handled in the future.
The case began when Aberbach challenged a determination made by DOCCS. He was dismissed from his position on August 10, 2022, following a hearing conducted by DOCCS's Deputy Commissioner. Aberbach sought to contest this decision through a legal proceeding known as an article 78, which allows individuals to challenge the actions of government agencies. His appeal reached the Supreme Court of New York County, where the judge found that it was unclear whether the Deputy Commissioner had fully considered the evidence before making the dismissal.
On October 3, 2023, the Supreme Court remitted the case back to DOCCS for a new review of the hearing record. Following this, on March 19, 2024, DOCCS's Acting Commissioner notified Aberbach that after reviewing the entire record, the decision to dismiss him was upheld. Aberbach then filed an order to show cause, claiming that the new review did not appear to be conducted properly within the same article 78 proceeding.
The Appellate Division, consisting of Judges Moulton, Kennedy, Friedman, Michael, and Hagler, unanimously affirmed the Supreme Court's decision to deny Aberbach's motion. The court ruled that judicial review of DOCCS's determination following remittal could only occur through a new article 78 proceeding. The court stated, "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." This ruling emphasizes the importance of following proper legal procedures when contesting agency decisions.
The impact of this ruling is significant for both Aberbach and others in similar situations. It reinforces the requirement that individuals must initiate a new legal proceeding to challenge agency actions that arise after a remittal. This ruling may deter future challenges to agency decisions if individuals are not aware of the procedural requirements necessary for their appeals.
Looking ahead, Aberbach may have limited options for further appeal. The court's ruling does not appear to leave room for an appeal to a higher court based on the procedural issues addressed. However, if Aberbach believes there are substantial grounds for further legal action, he may consider consulting with his legal counsel to explore any remaining options.