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

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A CPLR Article 78 must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner

An employee [Petitioner] of the New York City Department of Correction [DOC] was served with disciplinary charges, which disciplinary charges were sustained by a DOC human resources representative. Subsequently Petitioner executed a waiver of his right to a hearing pursuant to Civil Service Law §75.

Petitioner then commenced the instant to CPLR Article 78 proceeding seeking a court order compelling DOC to submit his disciplinary case to the New York City Office of Administrative Trials and Hearings [OATH] for adjudication pursuant to Civil Service Law §75. 

Supreme Court granted Petitioner's motions and denied DOC's cross-motion to dismiss Petitioner's Article 78 action. DOC appealed the Supreme Court's determinations. 

The Appellate Division reversed Supreme Court's order and judgment, on the law, with costs, granted DOC's petition and dismissed Petitioner's Article 78 proceeding.

Citing Matter of Kaneev v City of New York Envtl. Control Bd., 149 AD3d 742, the Appellate Division explained that a proceeding initiated pursuant to CPLR Article 78 must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner. 

In the instant matter the Appellate Division noted that Petitioner executed the waiver on February 11, 2021, and DOC's labor relations representative upheld the disciplinary charges against the Petitioner on August 4, 2021. Since Petitioner did not commence the instant proceeding until September 1, 2022, the Appellate Division held that Petitioner's Article 78 proceeding was time-barre, citing CPLR 217(1).

In the words of the Appellate Division, Supreme Court "should have granted DOC's cross-motion to dismiss Petitioner's Article 78 action on the ground that the proceeding was time-barred" and that "The parties' remaining contentions need not be reached in light of the foregoing". 

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