An appeal to the Commissioner of Education pursuant to Education Law §310 is appellate in nature and is not ripe for review by the Commissioner until it is final

Petitioner filed an appeal pursuant to Education Law §310 with New York State's Commissioner of Education concerning an action of the Board of Education of a school district [Respondent] involving its filling an administrative position [Coordinator Position] for which the Petitioner had earlier applied and had been interviewed.

In the instant appeal Petitioner alleged Respondent "declined to hire him for the vacant Coordinator Position in retaliation for, among other things, multiple lawsuits he commenced against a member of Respondent’s hiring committee. In addition, Petitioner alleged that Respondent had violated certain provisions of New York State's Constitution, the New York State's Civil Service Law, and board policy.

Respondent had posted a job announcement for the Coordinator Position and subsequently reposted the job announcement in which it stated that "previous applicants need not reapply" but was otherwise identical to the previous posting.

Citing Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308, and other decisions of the Commissioner of Education, the Commissioner said Petitioner's appeal "must be dismissed as premature as the Commissioner will not render an advisory opinion on an issue before it becomes justiciable". 

The Commissioner explained the Commissioner’s jurisdiction pursuant to Education Law §310 is appellate in nature and an action is not ripe for review by the Commissioner until it is final and results in an actual, concrete injury.

Noting that Respondent’s Policy 9240 requires that an interview committee recommend three or more candidates for second round interviews for administrative positions such as the Coordinator Position and Respondent reposted the Coordinator Position in an effort to obtain the requisite number of candidates and that at the time Petitioner's  appeal was filled Respondent indicated that “none of the candidates … interviewed at the first-level were rejected and as Petitioner had not submitted a reply or otherwise contested these assertions by the Respondent, the Commissioner found that Petitioner's appeal must be dismissed as premature.

The Commissioner then observed that to the extent Petitioner suggests that Respondent was required to conduct "a competitive examination of merit and fitness" to fill the Coordinator Position, such examinations are not required for positions such as the Coordinator Position that involve “the function of administration of teaching” and dismissed Petitioner's appeal.

Click HERE to access the Commissioner of Education's decision posted on the Internet.

Challenging a New York State statute alleged to be unconstitutionally vague and overbroad

Executive Law §70-b established the Office of Special Investigation [OSI] within Office of the Attorney General [Respondent] to "investigate and, if warranted, prosecute" any alleged offense by a peace officer or police officer, "whether or not formally on duty", concerning any incident in which the death of a person, "whether in custody or not, is caused by an act or omission of such police officer or peace officer or in which the attorney general determines there is a question as to whether the death was in fact caused by an act or omission of such police officer or peace officer".

An off-duty state trooper was driving his private vehicle when another vehicle crossed over the center line of a highway and struck the trooper's vehicle head on. The trooper and a passenger were seriously injured and the driver of the other vehicle died. This triggered an investigation by OSI* pursuant to Executive Law §70-b.

The Police Benevolent Association of the New York State Troopers, Inc. [PBA], contending that Executive Law "§70-b was unconstitutionally vague and overbroad", brought an action challenging the statute.

Supreme Court granted Respondent's motion to dismiss PBA's complaint "for lack of standing" and PBA appealed the Supreme Court's ruling. In the course of the appeal Respondent conceded that PBA had standing to bring the action and asked the Appellate Division to address the merits of PBA's allegations. The Appellate Division declined Respondent's request and remitted the case to Supreme Court to allow Respondent to serve an answer to PBA's complaint. 

Following remittal and service of Respondent's answer, Supreme Court granted Respondent's motion for summary judgment dismissing the complaint and granted, among other things, a declaratory judgment in Respondent's favor, holding that Executive Law §70-b is not void for vagueness and overbreadth. PBA appealed the Supreme Court's decision.

Addressing PBA's contention that Executive Law §70-b is unconstitutionally vague and overbroad, the Appellate Division, citing White v Cuomo, 38 NY3d 209, said "It is well settled that legislative enactments are entitled to a strong presumption of constitutionality, and courts strike them down only as a last unavoidable result after every reasonable mode of reconciliation of the statute with the Constitution has been resorted to, and reconciliation has been found impossible". The Court then noted that "To rebut that presumption, the party attempting to strike down a statute as facially unconstitutional bears the heavy burden of proving beyond a reasonable doubt that the statute is in conflict with the Constitution", explaining that "A statute, or a regulation, is unconstitutionally vague if it fails to provide a person of ordinary intelligence with a reasonable opportunity to know what is prohibited, and it is written in a manner that permits or encourages arbitrary or discriminatory enforcement".

Concluding that PBA "has not met its heavy burden of demonstrating that the statute is unconstitutionally void on its face", the Appellate Division opined that PBA's conclusory assertion that Executive Law §70-b is constitutionally overbroad lacks merit as it does not infringe on any constitutionally protected conduct.

* In a footnote to its decision in the instant matter the Appellate Division observed that after an initial investigation OSI found that the underlying incident involving the death of the driver was not under the jurisdiction of Respondent's office because the death of the driver of the other vehicle was not caused by a police officer.

Click HERE to access the Appellate Division's decision posted on the Internet.

Appellate Division rejects claim that adding age to New York State's Equal Rights Amendment nullified the constitutional mandatory retirement age of 70 for New York State judges and justices

In November 2024, New York State voters in the general election approved the Equal Rights Amendment [ERA], which, among other things, added the category of "age" to the Civil Rights Clause set out in Article I, §11(a) of the State Constitution. 

Petitioners in this action are three current or former New York State court justices who turned 70 or 76 years of age in 2025 and are therefore subject to mandatory retirement or to the "certification process" in order to continue to serve as New York State court justices. 

The Petitioners contended that the amendment to New York State's ERA nullified the constitutional mandatory retirement age of 70 for New York State court judges and justices when it added "age" to the list of protected categories set forth in Article I, §11(a) of the State Constitution. 

The Appellate Division disagreed, opining that "The plain language of the ERA does not support [Petitioners'] contention that article VI, §25(b), the mandatory judicial retirement provision, has been implicitly repealed, as the ERA contains no reference to Article VI, the eligibility of persons to serve as judges or justices, or the judicial retirement age". 

Rejecting the Petitioners' reliance on the "well-established exception . . . that a subsequent general statute will repeal a prior special law relating to the same subject where inconsistency exists and the Legislature's intent to effect such a repeal is manifest" [emphasis in the decision], the Appellate Division set out two reasons for rejecting Petitioners' arguments:

1. "... in contrast to the examples cited by petitioners, the ERA addresses a different subject matter from the provision petitioners seek to have declared nullified; and

2. "[Petitioners] cannot show that the legislature or the voters intended for the ERA to repeal article VI, §25(b)".

The Appellate Division noted that almost immediately after the ERA's changes became effective on January 1, 2025, new legislation proposing amendments that would raise the Article VI, §25(b) judicial retirement age was introduced in January 2025 and April 2025 in New York State's Assembly and Senate respectively, "suggesting that the drafters of the ERA did not, in fact, contemplate raising the judicial retirement age, but rather intended to address that issue separately."

In addition, citing Alweis v Evans, 69 NY2d 199, the Appellate Division pointed out "[r]epeal by implication is distinctly not favored in the law",  observing that implicit repeal requires that the repugnancy between two laws "be so palpable that upon reading the two acts together it is obvious, without the aid of elaborate argument, that both could not have been intended to remain in force at the same time".

The text of the Appellate Division's ruling is set out below:

Matter of Miller v State of New York

2026 NY Slip Op 01409

Decided on March 12, 2026

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: March 12, 2026
Before: Kennedy, J.P., Mendez, Pitt-Burke, Rosado, JJ.

Index No. 163102/25|Appeal No. 6084|Case No. 2025-07659|

[*1]In the Matter of Robert J. Miller et al., Petitioners/Plaintiffs-Appellants,

v

The State of New York et al., Respondents/Defendants-Respondents, New York Civil Liberties Union Foundation. Amicus Curiae.

Morrison Cohen LLP, New York (Y. David Scharf of counsel), for appellants.

David Nocenti, Office of Court Administration, New York (Pedro Morales of counsel), for New York Office of Court Administration, respondent.

Letitia James, Attorney General, New York (Ester Murdukhayeva of counsel), for State of New York, respondent.

New York Civil Liberties Union Foundation, New York (Jessica Perry of counsel), amicus curiae.

Order and judgment (one paper), Supreme Court, New York County (Lyle E. Frank, J.), entered December 1, 2025, which, to the extent appealed from as limited by the briefs, granted the cross-motion of respondent The State of New York to dismiss the petition-complaint seeking a judgment declaring that the 2024 amendment to article I, § 11 of the New York State Constitution rendered null and void the mandatory retirement age for judges and justices of the New York State Courts set forth in article VI, § 25(b) of the State Constitution and that the application of Judiciary Law §§ 23 and 115 violates article I, § 11 of the State Constitution, and seeking an injunction barring respondents from requiring petitioners to retire or be denied certification for service, and dismissed this hybrid proceeding brought pursuant to CPLR articles 30, 63, and 78, unanimously modified, on the law, to grant judgment to respondents to the extent of declaring that article VI, § 25(b) of the State Constitution has not been repealed and that Judiciary Law §§ 23 and 115 are not unconstitutional, and otherwise affirmed, without costs.

In November 2024, New York State voters in the general election approved the Equal Rights Amendment (ERA), which, among other things, added the category of "age" to the Civil Rights Clause set forth in article I, § 11(a) of the State Constitution. Petitioners are three current or former state court justices who turned 70 or 76 years old in 2025 and are therefore subject to mandatory retirement or the certification process. They commenced the instant proceeding contending that the ERA nullified the constitutional mandatory retirement age of 70 for judges and justices when it added "age" to the list of protected categories set forth in article I, § 11(a). We disagree.

The guiding principle in the interpretation of a written constitution is to give effect to the plain language of the document (Matter of King v Cuomo, 81 NY2d 247, 253 [1993]). It has long been settled that "an amended constitution must be read as a whole, and as if every part had been adopted at the same time and as one law, and effect must be given to every part of it, each clause explained and qualified by every other part" (People ex rel. Killeen v Angle, 109 NY 564, 575 [1888] [internal quotation marks and citation omitted]). Thus, courts are obliged to reconcile "seemingly conflicting provisions of the Constitution without doing violence to either" (McMahon v Michaelian, 38 AD2d 60, 62 [1st Dept 1971], affd 30 NY2d 507 [1972]; see Matter of Burger King v State Tax Commn., 51 NY2d 614, 620-621 [1980]).

The plain language of the ERA does not support petitioners' contention that article VI, § 25(b), the mandatory judicial retirement provision, has been implicitly repealed, as the ERA contains no reference to article VI, the eligibility of persons to serve as judges or justices, or the judicial retirement age (see NY Const art I, § 11[a]; see also Matter of King, 81 NY2d at 253). For two reasons, we reject petitioners' reliance on the "well-established exception . . . that a subsequent general statute will repeal a prior special law relating to the same subject where inconsistency exists and the Legislature's intent to effect such a repeal is manifest" (Gerry v Volger, 252 AD 217, 219 [4th Dept 1937] [emphasis added]).

First, in contrast to the examples cited by petitioners, the ERA addresses a different subject matter from the provision petitioners seek to have declared nullified (see Gerry, 252 AD at 218 [statutory change to statewide jury duty qualification implicitly amended statute regarding jury duty in specific counties]; see also US Const 14th amend, § 2 [changing calculation for apportioning representatives from prior method found in article I, former § 2, clause 3]; US Const 17th amend [changing method of selecting United States Senators found in article I, former § 3, clause 1]; Moore v United States, 602 US 572, 582-583 [2024], quoting US Const 16th amend [noting repeal of limitation that taxation of income from real property be evenly apportioned among the states by article I, former § 2, clause 3 and article I, § 8]).

Second, petitioners cannot show that the legislature or the voters intended for the ERA to repeal article VI, § 25(b). On the contrary, almost immediately after the ERA's changes became effective on January 1, 2025, new legislation seeking to propose amendments that would raise the article VI, § 25(b) judicial retirement age was introduced in January 2025 and April 2025 in the Assembly and Senate, respectively, suggesting that the drafters of the ERA did not, in fact, contemplate raising the judicial retirement age, but rather intended to address that issue separately (see Assembly Bills A 3756, A 3757 [2025]; Senate Bill S 7455 [2025]). Similarly, a proposed amendment with this same provision failed in the 2013 general election. The sponsors of the ERA bill focused instead on enshrining comprehensive protections from discrimination given the changing national legal landscape endangering abortion rights, rights for the disabled and pregnant, and rights based on sexual orientation, gender identity, and gender expression.

In addition, "[r]epeal by implication is distinctly not favored in the law" (Alweis v Evans, 69 NY2d 199, 204 [1987]). Implicit repeal requires that the repugnancy between two laws "be so palpable that upon reading the two acts together it is obvious, without the aid of elaborate argument, that both could not have been intended to remain in force at the same time" (Pines v State of New York, 115 AD3d 80, 98 [2d Dept 2014], appeal dismissed 23 NY3d 982 [2014], quoting Matter of Tiffany, 179 NY 455, 457 [1904]). Because there is no support for petitioners' position within the ERA's legislative history, their cause of action asserting an implicit repeal necessarily fails. It follows that petitioners cannot demonstrate beyond a reasonable doubt that Judiciary Law §§ 23 and 115, which implement article VI, § 25(b) faithfully, are unconstitutional (Matter of McGee v Korman, 70 NY2d 225, 231 [1987]; see Stefanik v Hochul, 43 NY3d 49, 57 [2024]).

We decline to reach the issues of whether the ERA made the Civil Rights Clause of article I, § 11 self-executing, or whether strict scrutiny applies to age-based statutory classifications, as these issues are academic in light of our determination.

Finally, Supreme Court erred in dismissing petitioners' first three causes of action seeking declaratory relief upon a finding that they were not entitled to the declaration sought. Instead, the proper course was to issue a declaration in respondents' favor (Gourin v 72A Realty Assoc., L.P., 226 AD3d 475, 477 [1st Dept 2024]).

We have considered petitioners' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: March 12, 2026

The Appellate Division affirmed the dismissal of Plaintiff's claims against his union employer "for reasons other than those stated by the motion court"

The Plaintiff in this action alleged that:

1. Plaintiff was a member of DC 37's professional employees' union, the Federation of Field Representatives [FFR], "which has a [collective bargaining agreement] with . . . DC 37";

2. Said CBA provides that "[s]everance pay shall be paid to an employee . . . who is discharged;" 

3. That employees hired after 2005 "accrue severance pay of one week's pay for every 12 months of service"; and 

4. DC 37 "terminated [Plaintiff] without explanation and refused to pay him any severance pay." 

The Martin Rule is cited in this decision by the Appellate Division, wherein the Court notes that Plaintiff's contract and quasi-contract claims against his union employer did  not fall within the "narrow exception to the Martin rule" for "suit[s] by a union member against a union arising from wrongful expulsion".

The Appellate Division then affirmed the Supreme Court's dismissal of Plaintiff's contract and quasi-contract claims against DC 37, but "for reasons other than those stated by the motion court".

The text of Appellate Division's decision in the instant action is set out below:

Alvarado v Local 1549 N.Y.C.

2026 NY Slip Op 00969

Decided on February 19, 2026

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: February 19, 2026
Before: Manzanet-Daniels, J.P., Scarpulla, Friedman, Chan, Hagler, JJ.

Index No. 155407/24|Appeal No. 5896|Case No. 2025-02827|

[*1]Oscar Alvarado, Plaintiff-Appellant,

v

Local 1549 — N.Y.C. Clerical Administrative Employees, et al., Defendants-Respondents.

Ballon Stoll P.C., New York (Marshall B. Bellovin of counsel), for appellant.

Cohen, Weiss and Simon LLP, New York (Melissa S. Woods of counsel), for respondents.

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered on or about April 7, 2025, which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.

In this action for unpaid wages, plaintiff alleges that he was "hired by Local 1549 under the purview of [defendant DC 37] and AFSCME as a Coordinator of Strategic Planning and Special Projects," and that "[d]efendants terminated [p]laintiff without explanation and refused to pay him any severance pay."

Plaintiff alleges that he was a member of DC 37's professional employees' union, the Federation of Field Representatives (FFR), "which has a [CBA] with . . . DC 37." The CBA provides that "[s]everance pay shall be paid to an employee . . .who is discharged," and that employees hired after 2005 "accrue severance pay of one week's pay for every 12 months of service." Plaintiff further alleges that the DC 37 Employee Manual similarly states that "[s]everance pay shall be paid to employees who are discharged" and "shall amount to one week's pay for each full year of service." Plaintiff specifically alleges that his "employment relationship" with defendants "was governed by [the] Employee Manual with DC 37 and a Union Contract [i.e., the CBA] between DC 37, AFSCME, and [FFR]." In his complaint plaintiff asserts causes of action for violation of New York Labor Law § 198-c, breach of contract, implied contract, promissory estoppel, and quantum meruit.

Plaintiff's cause of action pursuant to Labor Law § 198-c was properly dismissed because that specific provision of the Labor Law does not create a private right of action (see e.g. Stoganovic v Dinolfo, 92 AD2d 729, 729 [4th Dept 1983], affd 61 NY2d 812 [1984]). In any event, the claim pursuant to § 198-c is preempted by the federal Employee Retirement Income Security Act (see Gilbert v Burlington Indus., Inc., 765 F2d 320, 327-328 [2d Cir 1985]).

We affirm the dismissal of plaintiff's contract and quasi-contract claims "for reasons other than those stated by the motion court" (J. Remora Maintenance LLC v Efromovich, 103 AD3d 501, 501 [1st Dept 2013], lv denied 21 NY3d 862 [2013]). While the court did not reach defendants' argument based on the unions' status as unincorporated associations, we affirm on that ground. Plaintiff was required to, but did not, plead "that the entire membership authorized and later ratified [defendants'] actions" (Dowlah v Am. Arbitration Assn., 221 AD3d 426, 427 [1st Dept 2023], lv denied 41 NY3d 910 [2024]), as required by Martin v Curran (303 NY 276, 280 [1951]; see Palladino v CNY Centro, Inc., 23 NY3d 140, 146 [2014]). Plaintiff's contract and quasi-contract claims against his union employer do not fall within the "narrow exception to the Martin rule" for "suit[s] by a union member against a union arising from wrongful expulsion" (id. at 147-148).

We have considered plaintiff's additional arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 19, 2026

Selected posts from blogs during the week ending March 13, 2026

Building Government Visibility and Resilience with Autonomous Tech Explore how autonomous technologies strengthen operations, resilience and situational awareness across government. READ NOW

A Roadmap for Upgrading Resident Login and Access Modernizing how residents log in to government services doesn’t require a massive IT overhaul. This guide explains how state, provincial, and local agencies can introduce Customer Identity and Access Management (CIAM)—the systems that manage citizen registration, login, and multi-factor authentication—using a phased approach that works with existing platforms. DOWNLOAD

Real change Real leaders No script Inside City Hall is a new series from Via featuring candid discussions with the municipal leaders behind high performing transit. Watch now

Rebuilding from Disaster: How Los Angeles County Assessed Damage from the 2025 Wildfires Hear how Los Angeles County leveraged a unified, modern IT system to quickly and accurately assess damage to thousands of properties. WATCH NOW

Flexible Tech Strategies for Uncertain Terrain Get fresh insights and actionable advice into the shifting government landscape and making the most of your technology investments. WATCH NOW

Make the Most of Your Cybersecurity Funding: Turning Grants into Measurable Risk Reduction Learn how to find and maximize cybersecurity grants to fund your tech stack. WATCH NOW

Exposing Software Supply Chain Blind Spots in Government Learn how to make invisible risks to the software supply chain visible, and what government leaders can do about them. WATCH NOW

Secure Collaboration for Modern Government: Enabling Productivity and Compliance Learn how organizations are leveraging certified, secure video and communication solutions to support productivity & public engagement. WATCH NOW

Moving Beyond Training: Why Governments Need a Unified Approach to Human Cyber Risk This webinar explores how a unified approach—connecting training, behavior data, and real-time signals—helps agencies understand where risk is building and respond sooner. WATCH NOW