author: Fuchsberg, J. Gabrielli, J.

text:
    In the Matter of the Estate of Robert J. Wilson, Deceased. Osceola S. Turner, Appellant; Earlene Wilson, Respondent.
    Submitted January 10, 1980;
    decided April 3, 1980

      POINTS OF COUNSEL

      Stanley Hyman and Marvin Hyman for appellant.
    I. The credible evidence did not establish a reconciliation with the requisite intent to abandon the separation agreement dated August 2, 1966. (Matter of Landon, 149 Misc 832; Matter of Tierney, 148 Misc 278; Farkas v Farkas, 26 AD2d 919; Denning v Denning, 1 AD2d 741.) II. The separation agreement with respondent’s waiver of her right of election is valid and binding because it was never validly modified. (Matter of Falanga, 29 AD2d 169, 23 NY2d 860; Matter of Landon, 149 Misc 832; Dubin v Dubin, 174 Misc 952, 261 App Div 945.) III. The Surrogate was justified in concluding that respondent’s witnesses were unworthy of belief. IV. The waivers contained in the separation agreement are valid even if parts of the agreement are found to be void. (Stahl v Stahl, 16 AD2d 467, 12 NY2d 674; Hoops v Hoops, 266 App Div 512; Central N. Y. Tel. & Tel. Co. v Averill, 199 NY 128; Schiff v Schiff, 270 App Div 845; Matter of Frisch, 49 Misc 2d 898, 25 AD2d 818; Sylofski v Sylofski, 49 AD2d 971; Markowitz v Markowitz, 77 Misc 2d 586.)

      Philip B. Matthews for respondent.
    I. The separation agreement entered into August 2, 1966 was a nullity. (Whedon v Whedon, 247 App Div 463; Matter of Dail, 29 Misc 2d 809.) II. There was a reconciliation of marital relations with intent to abandon the separation agreement dated August 2, 1966, which in effect annulled the separation agreement dated August 2, 1966. (Zimtbaum v Zimtbaum, 246 App Div 778, 272 NY 416; Granchelli v Granchelli, 31 Misc 2d 838.) III. The testimony of petitioner-appellant Osceola Turner was improperly admitted over the objection of respondent-respondent. (Matter of Bossom, 195 App Div 339; Griswold v Hart, 205 NY 384; Matter of Eysaman, 113 NY 62.) IV. The testimony of respondent-respondent’s witnesses is unimpeached and uncontradicted and cannot be disregarded. (Matter of Kindberg, 207 NY 220; Chapin-Owen Co. v Yeoman, 233 App Div 492; Locicero v Messina, 239 App Div 635.) V. Payment of a consideration by decedent to respondent-respondent on execution of separation agreement should not be assumed.
   OPINION OF THE COURT

Fuchsberg, J.

This proceeding was brought pursuant to SCPA 1421 to test the validity of a widow’s election to take a share against the provisions of her husband’s will as provided by EPTL 5-1.1. The controversy centered on the enforceability of a waiver of the wife’s right to elect incorporated in a separation agreement executed by the spouses. A dependent question, conditioned on a finding that the separation agreement was valid, treated with the legal impact on the waiver of an alleged reconciliation between husband and wife. A subsidiary issue, perhaps of paramount practical importance in light of the large increase in the number of marital dissolutions, deals with the severability of such a clause.

These matters come to us against the following background:

Robert J. Wilson and Earlene Wilson were married in 1959. What comes through as a rather checkered married existence led them to sign the separation agreement in 1966. Its preamble stated that "the parties have heretofore separated and are now from some time past living separate and apart from each other and since their separation have agreed to live separately and apart during the rest of their lives”. Among other things, the contract’s implementing clauses divided their real and personal property and waived each one’s claims against the other’s estate. It was also stipulated that any future modification had to be in writing. As relevant here, it was agreed too that "If any provision of this Agreement is held to be invalid or unenforceable, all other provisions shall nevertheless continue in full force and effect”.

When, upon the probate of Robert Wilson’s will following his death in 1975, Ms. Wilson filed her notice of election, Osceola Sampson Turner, a specific devisee, petitioned for a declaration that the widow had waived any right to do so. Setting out the allegations she expected to establish in support of her claim (see, generally, 3B Warren’s Heaton Surrogates’ Courts [6th ed], § 305, par 2, subd [d]), Mrs. Turner’s petition pleaded the existence of the separation agreement, the waiver it incorporated, and an assertion that the spouses had never reconciled. In her response, the widow, meeting these contentions head-on, averred that the agreement containing the waiver had become ineffective long before the decedent passed away because "in or about 1967 respondent and her husband * * * reconciled their marital differences and resumed their marital relationship and [thereafter] resided together as man and wife, in their marital domicile * * * continuously” until the husband’s death.

But, while the issues thus seemed to be narrowly framed by the pleadings, at trial the parties, with at least the tacit acquiescence of the Surrogate, in fact plotted a much broader litigation course. In his opening remarks, as a prelude to the invocation of the long-standing, and continuing, policy which interdicts a separation agreement when it reasonably can be viewed as inducing, rather than merely recognizing, the disruption of a family unit (see Tirrell v Tirrell, 232 NY 224, 228-229; La Montagne v La Montagne, 239 App Div 352, 355; Matter of Dail, 29 Misc 2d 809, affd 14 AD2d 850; 2 Foster and Freed, Law and the Family, §§ 28:6, 28:13), the widow’s counsel declared: "Your Honor, the Objectant will introduce evidence to show the fact that the Decedent and the Objectant lived together as man and wife from early in 1960 in the premises with which we are concerned; that there was a purported separation agreement entered into on August 2nd, 1966; that at that time they were living together as man and wife and continued to live together thereafter” up to the death of the husband. As the record discloses, these were not idle words. And, since opposing counsel raised no objection to the presentation of this theory of the widow’s case, in fact substantial evidence — including direct testimony from a close friend of the Wilsons, from the couple’s adopted son, from Ms. Wilson’s sister and from the widow herself — thereafter was introduced to prove that the spouses were living together when the separation agreement was signed. Thus, as the case unfolded, the attack on the widow’s right to elect was opposed on alternative grounds: one, whose premise was that the true state of the marriage was then unseparated, supported the theory that the agreement therefore was void ab initio; the other, based on an assumption that the agreement had been valid when executed, argued that it was vitiated by a subsequent reconciliation. Essentially the same witnesses were called by the widow to support both of her theories.

However, at the conclusion of the trial, the Surrogate focused only on the reconciliation contention. Acknowledging the considerable evidentiary basis for the widow’s position on this issue, he rejected it, not because it was outweighed by evidence offered by petitioner or because its substance was shaken on' cross-examination, but because he had formed the opinion that it was "rehearsed”. As to the theory that the separation agreement was invalid because the parties were living as husband and wife when it was executed — possibly because it was not embraced within the formal pleadings, or, perchance, because, applying the maxim falsus in uno falsus in omnibus, he decided to disregard anything to which Ms. Wilson and her witnesses subscribed, or, perhaps, for some other reason he preferred not to mention — the Surrogate failed to address, much less determine, that question at all.

The case having reached the Appellate Division in this posture, that court, upon its own examination of the record, concluded that there had been no proof that the Wilsons were physically separated when the agreement was entered into. Reversing on the facts and on the law, and expressly arriving at an assessment of the witnesses’ credibility diametrically opposed to that reached by the Surrogate, it found that the agreement in its entirety was void from the inception and that, hence, there had never been a valid waiver of the right of election (66 AD2d 893). Apparently because this rendered the reconciliation claim academic, the court did not examine this question.

For our part, being called upon, inter alia, to decide in this nonjury proceeding between sets of factual findings and inferences so at odds with one another (see Bernardine v City of New York, 294 NY 361, 366-367; Cohen and Karger, Powers of the New York Court of Appeals, § 112), we are in agreement with the conclusion of the Appellate Division that the parties were not separated at the time they signed the agreement on which the appellant’s claim is predicated (cf. Matter of Sunshine, 40 NY2d 875).

Indeed, whatever significance, if any, is to be attached to the agreement’s boilerplate recital of an ongoing separation (see Dowie v De Winter, 203 App Div 302), to say the most, support in the record for such a state of affairs is meager. As already indicated, proof that the parties were living together on August 2, 1966, the date of the separation agreement, was, if anything, overabundant. In contrast, the petitioner’s proof to the contrary was reduced to witnesses’ professions of ignorance of the relations between the Wilsons at that critical time and to the recital of inconclusive details such as the spouse’s failure to take their customary winter holiday trip in about 1966 or 1967 and that, though by petitioner’s own admission the Wilsons had lived together in their home at all times between 1960 and 1972, the wife at unspecified times was "in and out” of the house and did not stay there some nights.

Having thus made our choice on the factual controversy, we now turn to explore the legal effect that the invalidity of the separation agreement had on the waiver of the spousal right to elect. Petitioner insists, as did the dissenters at the Appellate Division, that the mutual waiver provision is self-standing and need not fall with the rest of the agreement, all the more so in light of the severability clause.

Of course, whether the provisions of a contract are sever-able depends largely upon the intent of the parties as reflected in the language they employ and the particular circumstantial milieu in which the agreement came into being (see Christian v Christian, 42 NY2d 63, 73; 5 Williston, Contracts [3d ed], § 767, p 629). As to the parties’ intention to continue to abide by any of the individual provisions the agreement contained, however, the record here is devoid of evidence that would support such an interpretation. Nor is the language of the agreement, particularly the presence of the partial invalidity and modification clauses, crucial in this regard. Such clauses are not to be taken to render specific provisions independently enforceable when an agreement itself, rather than any of its components, is brought to an end (cf. 3A Corbin, Contracts, § 694, pp 282-283; 6A Corbin, Contracts, § 1520, pp 757-758).

Most relevant to the circumstances surrounding the genesis of the agreement in the present case is the obvious fact that it, and all its provisions, were intended to govern as between separated spouses. Common experience teaches that, when marital property arrangements are made part of such an agreement, the separation is not merely the occasion but the underlying raison d’etre for the dispositions. Once the partners to the union renounce their incipient state of separation in favor of maintaining their coupled status, absent any indication to the contrary, it is to be assumed that, writing on a clean slate, they intended that all vestiges of the agreement that was to serve to memorialize their separation also fall (see Zimmer v Settle, 124 NY 37, 43; Matter of Whiteford, supra, p 406).

It is interesting to observe that the force of this principle is so pervasive that it applies whether the separation agreement is one rendered void ah initio by reason of the parties’ failure to live separate and apart or whether it is one abandoned later on because the spouses have effected a reconciliation. In either case, the conduct of the spouses may be understood to manifest an intention to void the agreement in its entirety. (See Matter of De Francesco, 24 AD2d 81, affd 19 NY2d 618; Whedon v Whedon, 247 App Div 463; cf. Matter of Dail, 29 Misc 2d 809, affd 14 AD2d 850, supra; Matter of Whiteford, supra; 1 Lindey, Separation Agreements and Ante-Nuptial Contracts, § 27, subd 3). Certainly, the rule is not a hard and fast one, but rather one which governs in the absence of reliable indicia of a contrary intention.

Thus, in marked contrast to the present case are the cases relied upon by petitioner in which individual provisions in separation agreements — including ones providing for the waiver of claims against a spouse’s estate — have been held enforceable notwithstanding that the agreement itself has been wholly invalidated (see Stahl v Stahl, 16 AD2d 467; Matter of Frisch, 49 Misc 2d 898). These cases concerned parties who, far from manifesting any intention to renounce their separated states, continued to live apart and thus evinced anything but a mutuality of desire that the material benefits secured by the agreement go by the board (see Matter of Whiteford, 61 Misc 2d 402, 404, affd 35 AD2d 751, supra).

For all these reasons, the order of the Appellate Division should be affirmed.

Gabrielli, J.

(concurring). I concur in the result reached by Judge Fuchsberg, because the separation agreement was impliedly and completely revoked either ab initio due to the absence of any actual separation, or subsequently upon the reconciliation of the parties thereto. And I agree that either a reconciliation or a failure to actually separate after entering into a separation agreement cancels the unexecuted portions of the agreement. The principle that a reconciliation or failure to actually separate constitutes an implied revocation of the agreement in its entirety and a cancellation of the unexecuted parts thereof, is founded upon the judicial sensitivity to the reasonable and legal expectations of contracting parties that a separation agreement will continue in effect only while they are actually separated.

The general rule that a reconciliation or failure to separate will revoke the agreement and cancel any unexecuted portions thereof is, of course, as applicable to a waiver of the right of election as it is to the transfer of title to property while the parties were still separated (see 2 Foster and Freed, Law and the Family, § 28.50). This rule is grounded, however, upon the presumed intent of the parties, and should not be applied when a contrary intent is clear. More importantly, in many cases such an implied revocation of the agreement should also be deemed a cancellation of any property transfers made pursuant to the agreement. In the case before us, of course, there was no request that the widow’s assertion of her right of election be conditioned upon her returning to the estate properties transferred to her pursuant to the separation agreement, but, in an appropriate case, and with due regard to any rights of third parties, a court may quite properly grant such relief.

Accordingly, I concur and vote to affirm the order appealed from.

Judges Jasen, Jones and Wachtler concur with Judge Fuchsberg; Judge Gabrielli concurs in a separate opinion in which Chief Judge Cooke and Judge Meyer concur.

Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate.

      . Moreover, the parties own appellate course invites no different analysis. In the Appellate Division, the opening point of the widow’s brief was devoted to an extensive exposition of her position that there was no separation at the time of the agreement, with specific emphasis on the testimony which buttressed that contention. Yet the issue was wholly ignored in the opposing brief. Nor, on this appeal to us, is there raised any procedural or substantive obstacle to the widow’s argument that the disposition below should be affirmed on this rationale. Rather, petitioner’s brief completely ignores the issue.

      . It is not disputed that the waiver notice in its formal aspects complied in all respects with the requirements of EPTL 5-1.1 (subd [f], pars [2], [3]).

      . We have no occasion here to examine the rights of the parties with respect to real estate that had been conveyed to the wife pursuant to the terms of the agreement at about the time of the execution. No claim with respect to such property was made or proved at nisi prius and we note that the parties have not raised any question as to the validity of the transfers in this appeal. Nor observing also that there is nothing in the record to suggest an intention by the spouses to nullify the conveyances despite the invalidity of the agreement, is there need to concern ourselves with the effect of the substantial passage of time and possible intervention of the rights of third parties. (See Coccaro v Coccaro, 283 App Div 969; affd 308 NY 708; Dudley v Fifth Ave Trust Co., 115 App Div 396, affd 188 NY 565; Matter of Whiteford, 61 Misc 2d 402, affd 35 AD2d 751; Zoloto v Zoloto, 13 Misc 2d 1091; 2 Foster and Freed, Law and the Family, § 28.50.)

       I note that it is, of course, impossible to determine the practical result of such an inquiry in any given case without a full record. In the instant case, for example, it seems that the property settlement resulted in three houses being transferred to the wife and three houses being transferred to the husband. It may well be that all six houses were owned by the parties as tenants by the entirety, in which case it might well be that the wife should not be required to return the three houses to the estate in this case. If the three houses she received were approximately equal in value to her real interest in the properties owned by the couple at the time, it might well be improper to require her to return the property. Such a determination, however, can only be made on a full record and after a fair exposition of the facts.


source: Caselaw Access Project

author: Meyer, J.

license: Public Domain

text:
    In the Matter of Frank Russo, Respondent, v New York State Board of Parole, Appellant.
    Argued February 11, 1980;
    decided April 24, 1980

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Frederick R. Walsh and Shirley Adelson Siegel of counsel), for appellant.
    I. Respondent has no constitutional right to parole release or parole consideration prior to the expiration of his maximum term because these determinations are within the administrative discretion of the Parole Board. (Matter of Briguglio v New York State Bd. of Parole, 24 NY2d 21; Matter of Speed v Regan, 42 NY2d 1087; Boothe v Hammock, 605 F2d 661; Walker v Oswald, 449 F2d 481; People ex rel. Johnson v Montanye, 42 AD2d 1049, 34 NY2d 994.) II. The setting of respondent’s minimum period of imprisonment by the Parole Board at the same length as the maximum term imposed by the sentencing court is in accordance with the intention of the Legislature in enacting article 12-B of the Executive Law. III. Appellant’s discretionary decision to set respondent’s minimum period of imprisonment at the same length as the maximum of the indeterminate four-year sentence imposed by the sentencing court was consistent with the reasonable expectations of the sentencing court in imposing no minimum, because of the seriousness of the crime and the low maximum sentence. (Matter of Gonzague v New York State Bd. of Parole, 58 AD2d 707; Matter of Ittig v New York State Bd. of Parole, 59 AD2d 972.)

      Warren S. Replansky and David Leven for respondent.
    I. The setting of respondent’s minimum period of incarceration (MPI) at his maximum term destroys the intent and purpose of the indeterminate sentencing system and violates the duty impliedly imposed on the board to provide every inmate with meaningful parole release consideration. (Walker v Oswald, 449 F2d 481.) II. The setting of respondent’s MPI at a length exceeding one third of his maximum term destroys the intent and purpose of the indeterminate sentencing system and the intent of the court in imposing a no-minimum sentence. (People v Esteves, 41 NY2d 826; People v Nieves, 48 AD2d 611; People v Moore, 50 AD2d 690; United States v Hawthorne, 532 F2d 318, 429 US 894; United States v Zacharias, 365 F Supp 256; United States v Slutsky, 514 F2d 1222; Garafola v Benson, 505 F2d 1212; Grasso v Norton, 371 F Supp 171, 520 F2d 27.) III. The setting of respondent’s MPI at his maximum term, and at a length exceeding one third of his maximum term, is not in accord with the intent of the Legislature in its passage of the Parole Reform Act. (Grasso v Norton, 371 F Supp 171.) IV. In denying respondent meaningful parole release consideration, appellant has violated respondent’s right to due process of law as guaranteed by section 6 of article I of the New York State Constitution. (Boothe v Hammock, 605 F2d 661; People v Isaacson, 44 NY2d 511; People ex rel. Walsh v Vincent, 40 NY2d 1049; People ex rel. Donohoe v Montanye, 35 NY2d 221; Matter of Briguglio v New York State Bd. of Parole, 24 NY2d 21; Matter of Greene v Smith, 52 AD2d 292; Matter of Healey v Superintendent, Green Haven Correctional Facility, 55 AD2d 605; Matter of Watkins v Caldwell, 54 AD2d 42; Matter of Gwynn v New York State Bd. of Parole, 63 AD2d 754.)

      Leon B. Polsky and Malvine Nathanson for The Legal Aid Society of the City of New York, amicus curiae.

    The Parole Board’s refusal to consider petitioner for parole release at any point during his incarceration is in excess of the powers granted to it under the indeterminate sentencing scheme. (People v Esteves, 41 NY2d 826.)
   OPINION OF THE COURT

Meyer, J.

When a court in sentencing a convicted defendant fixes a maximum but no minimum sentence, may the Parole Board, acting under section 259-i of the Executive Law fix as the minimum period of incarceration (MPI) a period in excess of one third of the maximum, even though the sentencing court could not have done so? Has a sentenced defendant a cognizable liberty interest in the right to seek parole so that a minimum sentence in excess of that which could have been fixed by a court violates his right to due process? We hold that the Parole Board may impose an MPI in excess of that which a Judge could have fixed and that its doing so violates no liberty interest of constitutional dimension. We therefore reverse.

Petitioner was initially charged with conspiracy in the first degree (a class B felony, Penal Law, § 105.15) in that he offered $10,000 to another individual to murder his father-in-law. Although he initially pleaded guilty to the charge, petitioner’s conviction was later reversed because there had been no overt act (57 AD2d 578). He was subsequently convicted after trial of criminal solicitation in the first degree and sentenced to a maximum term of four years imprisonment. No MPI was fixed by the court.

A three-member panel of the Parole Board was therefore convened in order to fix petitioner’s MPI. Under the Executive Law the Parole Board is required to establish written guidelines for use in making MPI decisions and to issue a detailed written statement of the reasons if the board departs from its guidelines in fixing an MPI. Under the guidelines then in effect, when, as in petitioner’s case, the offense had not been consummated, the "attempt or conspiracy” to commit the crime would be rated one category lower than that to which the substantive offense was assigned. The Parole Board, on the theory that the solicitation of a crime should receive similar placement, initially placed petitioner’s crime in offense severity level two, which called for an MPI within the range of 28 to 38 months. Thereafter, considering that this range was unduly lenient for the solicitation of a homicide, the board set petitioner’s MPI at four years, the same as his maximum sentence, and issued a statement explaining its action.

Petitioner then commenced this article 78 proceeding to review the board’s determination, contending that its decision to set his MPI at four years was arbitrary and capricious, that it conflicted with the legislative intent behind the statutory sentencing scheme and with the sentencing Judge’s purpose in abstaining from the imposition of an MPI, and that it violated his due process right to a meaningful opportunity for parole. Special Term granted the petition, reasoning that since petitioner’s conspiracy charge had been dismissed, the Parole Board should not have pigeonholed petitioner’s offense at one category lower than the solicited offense of homicide. It held further that on remand the board could not fix petitioner’s MPI in excess of one third of his maximum sentence, inasmuch as the sentencing court could not have done so and "[t]here appears to be no authority for a Parole Board to exceed the restrictions imposed by the Legislature upon the sentencing court” (98 Misc 2d 251, 254).

The Appellate Division affirmed (69 AD2d 520), noting that sentencing Judges had come to expect that where they did not impose an MPI the convicted defendant would receive parole consideration at or before the one-third point in his sentence, an expectation which, that court suggested, is buttressed by notions of due process. That conclusion is, however, without foundation.

The Supreme Court has held, and as a matter of State constitutional law we agree, that because a person’s rightful liberty interest is extinguished upon conviction, there is no inherent constitutional right to parole (Greenholtz v Nebraska Penal Inmates, 442 US 1). The court recognized, however, as do we, that when a State adopts a sentencing scheme which creates a legitimate expectation of early release from prison, there then exists a liberty interest deserving of constitutional protection (id., at p 12).

The distinction lies in whether the statute admits of only the bare possibility that parole will be granted or affirmatively promises that parole will be extended to the inmate in the absence of prohibitive findings or circumstances (see Greenholtz v Nebraska Penal Inmates, supra, at pp 9-12). It is premised in part on Judge Henry Friendly’s insightful comment that, " 'there is a human difference between losing what one has and not getting what one wants’ ” (Friendly, Some Kind of Hearing, 123 U of Pa L Rev, 1267, 1296, cited at 442 US, at p 10, supra), and upon the realization that a legislative promise of parole, albeit conditional, encourages justifiable reliance upon its terms. Our task, then, is to examine New York’s sentencing provisions to determine whether a convicted person has a legitimate expectation that he will be considered for parole at or before the time he has served one third of his maximum sentence or at least at some time before his full sentence is served.

As the Appellate Division noted (69 AD2d, at p 522), under the former Correction Law provisions the sentencing Judge was subject to the same one-third limit that he is now, but power in a Parole Board panel to exceed that limit was implied from the requirement of automatic administrative review by the entire Parole Board of the panel’s decision (People ex rel. Johnson v Montanye, 42 AD2d 1041; cf. Hunter v Fogg, 616 F2d 55; Walker v Oswald, 449 F2d 481, 484). From the absence of that automatic review provision the Appellate Division inferred that the Parole Board is now subject to the same limitation as is a Judge. We do not believe that inference can be drawn.

The bill which Governor Carey signed into law in 1977 was designed to broaden the Parole Board’s discretion in fixing minimum sentences, while structuring the exercise of that discretion by requiring the board to adopt guidelines to regulate its operations. In approving the bill, the Governor stated (NY Legis Ann, 1977, p 319): "By removing needless statutory restraints on the Board's power to ñx minimum sentences, the bill enables the fixing of realistic minimum sentences which take into account the gravity of the offense and the offender’s past criminal history, among other factors. Concomitantly, it permits a reasonable expectation of parole when a minimum sentence, fixed in accordance with the guidelines, has been served, provided the inmate fulfills the requirements of statute.” (Emphasis added.)

The new legislation directs in section 259-i (subd 1, pars [a], [b]) of the Executive Law that where a court fails to impose an MPI, the Parole Board shall do so in accordance with its promulgated guidelines, or shall issue a written explanation of its reasons for departing from the guidelines. The law contains no restriction limiting the Parole Board to an MPI which a court could have imposed or requiring that the board establish an MPI of less than the full sentence. Since the purpose of the law, as stated by the Governor, was to remove needless statutory restraints on the board’s power to fix MPI’s, and there is provision in subdivision 4 of section 259-i for appeal and paragraph (a) of subdivision 1 of the same section authorizes the board to provide by rule for subsequent reduction of the minimum originally fixed, we do not find the inference drawn by the Appellate Division reading such restrictions into the new legislation to be reasonable.

We conclude that New York has given no guarantee to a convicted defendant that he will be considered for parole at the end of one third of his maximum sentence or at any particular time. That the sentencing court refrains from imposing an MPI is not a promise by the State that it will not be fixed at more than one third of the sentence or that it will be fixed at less than the maximum term. What the New York statute promises, simply put, is that guidelines shall be established and followed unless reasons are given for not following them. That guidelines are provided does not mean they cannot be deviated from or create an entitlement to release at any particular time; the system is thus discretionary and holds out no more than the possibility of parole (Greenholtz v Nebraska Penal Inmates, 442 US 1, 9-12, supra; Boothe v Hammock, 605 F2d 661, 663, 664; Walker v Oswald, 449 F2d 481, 485, supra). The fact that section 259-i (subd 1, par [a]) of the Executive Law does not, as did the prior provision, require automatic reconsideration at any particular interval and that the board has not yet adopted a rule for subsequent determinations reducing the minimum period originally fixed as the subdivision authorizes, does not affect the constitutionality of the statutory scheme, which holds out no more than the possibility of parole and does not treat like situated persons differently (cf. Walker v Oswald, supra, at p 484). That being so, petitioner has demonstrated no protected liberty interest which would implicate the due process guarantee (see Greenholtz v Nebraska Penal Inmates, supra).

For the same reasons, petitioner’s argument that the board’s decision fixing his MPI at four years does violence to the legislative scheme is equally unfounded. What the statutory scheme contemplates is not a guarantee of parole at any given time or at all but a guarantee that in fixing the minimum time that must expire before consideration will be given to parole, guidelines be followed by the board or the reasons for not following them will be stated. The fact that the court may not fix a minimum exceeding one third because, as the Commission Staff Notes suggests (CLS, Statutes, vol 23, p 182), the minimum and maximum should not be "so close together as to deprive the Board of Parole of an adequate opportunity to supervise the prisoner for a reasonable period” has no bearing on where the board itself, which has or can have continuing supervision of the prisoner, can fix the maximum. It is enough under the statute that, when fixing the minimum or the maximum, the board articulate its reasons for doing so, as was done here.

It is argued for petitioner that the purpose of the sentencing Judge in refraining from imposition of a minimum sentence was to make it possible for petitioner to be paroled before one third of his maximum sentence had elapsed, not after. Whether the sentencing Judge contemplated that the sentence imposed would leave the defendant vulnerable to a greater than one-third minimum is simply irrelevant. As the Supreme Court has recently stated, referring to the Federal parole system, in United States v Addonizio (442 US 178, 190): "The import of this statutory scheme is clear: the judge has no enforceable expectations with respect to the actual release of a sentenced defendant short of his statutory term. The judge may well have expectations as to when release is likely. But the actual decision is not his to make, either at the time of sentencing or later if his expectations are not met. To require the Parole Commission to act in accordance with judicial expectations, * * * would substantially undermine the congressional decision to entrust release determinations to the Commission and not the courts.” To be sure, the context of Addonizio was somewhat different. The assumption by the sentencing court in Addonizio that the parole commission would ignore the severity of the crime and base its decision solely on the inmate’s prison conduct and his potential for rehabilitation furnished no basis for the court to override the commission’s decision. But while under our statute a court may initially set an MPI, the ultimate determination whether to release a convict is for the Parole Board. Where a court leaves that function to the Parole Board in the first instance it can have no enforcible expectation that its notion of leniency will be adopted.

Finally, we reject petitioner’s contention that the board acted arbitrarily in setting his MPI at four years. In light of the board’s expertise and the fact that responsibility for a difficult and complex function has been committed to it, there would have to be a showing of irrationality bordering on impropriety before intervention would be warranted. No such showing has been made here.

For the foregoing reasons, the order of the Appellate Division should be reversed, without costs, and the determination of the Board of Parole reinstated.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order reversed, etc.

      . The Appellate Divisions that have ruled on the issue are in disagreement, the Second Department in the instant case having answered the question in the negative (69 AD2d 520), but the Third and Fourth Departments having answered it in the affirmative (Matter of Rodriquez v New York State Board of Parole, 72 AD2d 655; Matter of Grossman v Parole Bd. of State of N Y., 74 AD2d 727).

      . A court is not required to fix an MPI unless the conviction is for a class A felony, and it cannot set an MPI if the conviction is for a class E felony. If the. conviction is for a class B, C or D felony, the court may fix an MPI if justice so requires, or it may choose not to, in which event the MPI is fixed by the Board of Parole (see Penal Law, § 70.00, subd 3; Executive Law, § 259-i, subd 1, par [a]).

      . (See Executive Law, § 259-c, subd 4; and § 259-i, subd 1, par [a].)

      . The notice stated: "MPI based upon the serious nature of the instant offense— Grim. Solicitation 1st Deg., during which you solicited an undercover police officer to murder your father-in-law for $10,000.”

      . Nor is it implicated by the Legislature’s declaration in section 1 of the amendatory statute (L 1977, ch 904) that "the exercise of discretion, which is inherent in the parole system, must be structured and administered consistent with notions of due process.” As the remainder of that declaration makes clear, that reference is to procedural due process rather than to substantive limitations.

      . Certainly the fact that Russo will be entitled to unconditional release for good behavior after two years and eight months is not such a showing. The two systems have differing purposes.


author: Jones, J.

text:
    Daniel Hurley, III, et al., Respondents-Appellants, v Mary Hurley et al., Defendants, and State of New York, Appellant-Respondent.
    Submitted February 15, 1980;
    decided April 29, 1980

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Dennis Hurley, Shirley Adelson Siegel and Alan Hegeman of counsel), for appellant-respondent.
    When plaintiffs seek consideration in the form of an easement over State land in addition to the consideration already paid to them for the taking of their land, their cause of action lies not in article 15 of the Real Property Actions and Proceedings Law but is cognizable exclusively in the Court of Claims under section 9 of the Court of Claims Act and should be dismissed if brought in the Surrogate’s Court. (Gifford v Whittemore, 4 AD2d 379.)

      James Mazzarella for respondents-appellants.
    I. The Surrogate’s Court has jurisdiction over the State as to plaintiffs’ causes of action against the State to partition real property and to quiet title to real property under article 15 of the Real Property Actions and Proceedings Law. (Klugewicz v State of New York, 259 App Div 755; O’Hara v Wallace, 83 Misc 2d 383, 52 AD2d 622; Rose v Indian Park Assn., 3 AD2d 274; Kates v Gilmar Dev. Corp., 38 Misc 2d 59; Niagara Falls Power Co. v White, 292 NY 472; New York Water Serv. Corp. v Palisades Interstate Park Comm., 12 AD2d 646, 817; Montgomery Ward & Co. v People, 279 App Div 85, 304 NY 646; O’Neil v Murray, 120 Misc 151.) II. The Court of Claims does not have exclusive jurisdiction of actions for money damages, rescission and reformation. (Montgomery Ward & Co. v People, 279 App Div 85, 304 NY 646; Niagara Falls Power Co. v White, 292 NY 472; Gifford v Whittemore, 4 AD2d 379; Prospect Enterprises v People, 76 Misc 2d 856; Frantz v State

      of New York, 30 AD2d 593; Levinson v State of New York, 5 AD2d 1041; La Briola v State of New York, 36 NY2d 328; Bopp v State of New York, 19 NY2d 368; Pollack v State of New York, 41 NY2d 909.)
   OPINION OF THE COURT

Jones, J.

Owners of land appropriated by the State over which they contend they were to have an easement of access for the benefit of premises retained may join the State as a party defendant to an action brought in a forum other than the Court of Claims, under article 15 of the Real Property Actions and Proceedings Law to determine claims to real property, and may recover therein judgment against the State establishing their easement, rescinding or reforming for that purpose instruments relating to that easement, and awarding them damages, if any, resulting from the State’s withholding of the easement. The State may also be made a party defendant in an action for partition.

Plaintiffs, as distributees of a deceased joint owner of real estate, brought an action in Supreme Court for partition of the property. After the action had been transferred to Surrogate’s Court an amended complaint was served joining the State of New York as a party defendant and setting forth five causes of action. The first cause, against the co-owners or their representatives and the State for a partition, alleged that, as a result of an appropriation of a portion of the property in 1967 by the State, there existed an easement of access over the parcel taken for the benefit of what had been made a landlocked segment of the original property. The second cause, "brought pursuant to Article 15 of the Real Property Actions and Proceedings Law of the State of New York to compel determination of claims to real property” against the State alone, set forth the details of the alleged creation of the easement, the acceptance by the landowners of a compensation agreement with an agreement by the State to provide access to public highways for the landlocked segment in exchange for the land taken, the failure by the State to provide an easement of access, and damages sustained as a result of that failure. The third cause alleged that the agreement of compensation had been entered into by the landowners without benefit of counsel, under duress and in reliance on the representation that an easement of access would be provided and that there had been a failure of consideration. The fourth cause alleged that the agreement of compensation was entered into by mutual mistake of the owners and the State, and, to the extent that it did not state that the owners would receive an easement of access, that it did not express the actual agreement of the parties. The fifth cause simply repeated many of the prior allegations and added an allegation that plaintiffs were entitled to an easement of access. The complaint grouped together the relief sought by the second, third and fourth causes of action and stated that there was sought, alternatively, rescission of the agreement and vacatur of the transfer of title by appropriation, a requirement that the State give an easement, or return of possession of a portion of the appropriated premises so as to provide highway access, and, additionally, money damages. The relief sought by the fifth cause of action was a requirement that the State establish an easement or the return of property to plaintiffs so as to give them access to public roadways.

The State’s motion for dismissal of the amended complaint on the ground that the court lacked jurisdiction over it by reason of the exclusive jurisdiction vested in the Court of Claims was denied by the Surrogate. The Appellate Division modified by dismissing the third, fourth and fifth causes of action.

The order of the Appellate Division should be affirmed.

Insofar as the second cause of action, instituted pursuant to article 15 of the Real Property Actions and Proceedings Law, is concerned, the State has waived its immunity from suit by virtue of section 1541 of the statute, which expressly authorizes the joinder of the People of the State as plaintiff or defendant in an action commenced to determine an adverse claim to real property. The relief available in such an action, to which the State as a party defendant is necessarily subject, includes declaration of the validity or invalidity of any claim to the subject real estate asserted by any party to the action, cancellation or reformation of instruments giving rise to any purported interest in the premises, an award of possession of the property, and damages sustained by reason of the withholding of any property interest established (Real Property Actions and Proceedings Law, § 1521, subd 1). Thus, any of the various forms of relief requested by plaintiffs, other than partition, may be awarded, if appropriate to the proof adduced, on the second cause of action.

In seeking dismissal of the article 15 action the State relies on section 1515 of the statute, which requires that the complaint "set forth detailed facts showing the particular nature of the estate or interest and the reason for making the people a party defendant” and provides that, if such facts are not stated, the complaint shall be dismissed as to the State. It is asserted that, because plaintiffs have no title to an easement, the cause of action must be dismissed under this section.

Whether plaintiffs in fact have an easement across the land secured by the State in the 1967 taking is precisely the issue to be resolved in the litigation. To dismiss the second cause of action against the State at this point on the ground urged by it would be to resolve the issue on the merits adversely to plaintiffs without their having had an opportunity to prove their case. The allegations of the complaint — which is all that section 1515 addresses — are clearly sufficient to protect it against a dismissal under that section.

Nor is there any basis for dismissing the first cause of action, seeking a judgment of partition, with respect to the State. What is to be partitioned — whether an easement across State land is included — will depend on the outcome of the determination of the claims of the parties in the second cause of action pleaded. If an easement is found to exist, then the State, as owner of the servient estate, will be a proper party to the partitioning of the dominant estate. By reason of the waiver of its immunity with respect to partition actions accomplished by section 904 of the Real Property Actions and Proceedings Law, which denominates the State as a permissible defendant in an action for partition, the State is precluded from asserting a lack of jurisdiction over it as to the first cause of action.

A different result follows with respect to the third, fourth and fifth causes of action however. No reference is made by plaintiffs, either in their pleading or in their arguments or submissions in this court, to any statutory authority for proceeding against the State in a forum other than the Court of Claims on these causes of action insofar as they are to be regarded as discrete from the second, article 15 cause of action and insofar as they seek rescission or reformation of the agreement of compensation, the provision of an easement of access by the State or the return of possession of a portion of the land appropriated. For actions of such a nature no waiver of the State’s immunity permitting suit outside the Court of Claims has been demonstrated. There was therefore no error in the dismissal of these causes of actions, which however should be of little consequence to plaintiffs in view of the panoply of remedies available to them under the article 15 action to determine claims to the property involved in this litigation.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Cooke and Judges Jasen, Gabrielli, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, without costs. Question certified answered in the affirmative.

       There is no dispute between the parties that in this action transferred to it, Surrogate’s Court is vested with all the authority that might be exercised by Supreme Court (SCPA 209, subd 9).


author: Per Curiam.

text:
    Uniformed Firefighters Association et al., Respondents, and Edward Ostrowski, as President of the Uniformed Sanitationmen’s Association, et al., Intervenors-Respondents, v City of New York et al., Appellants. In the Matter of Samuel De Milia, as President of the Patrolmen’s Benevolent Association, Inc., and All Other Police Officers of the City of New York Similarly Situated, Respondent, v City of New York et al., Appellants.
    Argued March 20, 1980;
    decided April 29, 1980

      POINTS OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (John C. Brennan, James G. Greilsheimer and Joseph F. Bruno of counsel), for appellants in the above-entitled action.
    I. Sections 3 and 30 of the Public Officers Law are special laws which, under the home rule provisions of the Constitution, can be superseded by an inconsistent local law. (Matter of Holland v Bankson, 290 NY 267; Baldwin v City of Buffalo, 6 NY2d 168; Matter of Osborn v Cohen, 272 NY 55; Matter of Kuhn v Curran, 294 NY 207; Matter of Sherrill v O’Brien, 188 NY 185; Matter of Carey v Morton, 297 NY 361; Adler v Deegan, 251 NY 467; Robinson v County of Broome, 195 Misc 24, 276 App Div 69, 301 NY 524; Matter of Roosevelt Raceway v County of Nassau, 18 NY2d 30; Matter of 241 East 22nd St. Corp. v City Rent Agency, 33 NY2d 134.) II. Since Local Law No. 20 does not mandate removal without notice and hearing, it does not violate section 75 of the Civil Service Law; nor does it impermissibly deprive plaintiffs of pension rights. (Mandelkern v City of Buffalo, 92 Misc 2d 425, 64 AD2d 279; Matter of Coates, 9 NY2d 242; Matter of Bell v Waterfront Comm. of N. Y. Harbor, 20 NY2d 54.) III. Local Law No. 20 does not violate the concept of making civil service appointments on the basis of merit and fitness. (Hesse v Rath, 224 App Div 344, 249 NY 436; Matter of Maye v Lindsay, 69 Misc 2d. 276, 41 AD2d 127, 33 NY2d 552, 414 US 1069.)

      Kenneth E. Gordon, Murray A. Gordon, Henry T. Berger and Edward M. Edenbaum for respondents.
    I. The courts below correctly held that Local Law No. 20 is inconsistent with applicable Public Officers Law residency provisions and is, therefore, invalid. (Wholesale Laundry Bd. of Trade v City of New York, 43 Misc 2d 816, 22 AD2d 762, 765, 15 NY2d 604; City of Corning v Corning Police Dept. of Corning City Unit of Steuben County Ch., Civ. Serv. Employees Assn., 81 Misc 2d 294, 49 AD2d 689; City of Utica v Mercon, Inc., 71 Misc 2d 680; People v Abelove, 54 Misc 2d 306; Matter of Obergfell, 239 NY 48; Mandelkern v City of Buffalo, 64 AD2d 279; Adler v Deegan, 251 NY 467; Matter of Board of Educ. v City of New York, 41 NY2d 535; Wambat Realty Corp. v State of New York, 41 NY2d 490; Hotel Dorset Co. v Trust for Cultural Resources of City of N. Y., 46 NY2d 358; Matter of 241 East 22nd St. Corp. v City Rent Agency, 33 NY2d 134.) II. Local Law No. 20 violates the constitutional requirement of section 6 of article V that appointments in civil service shall be made according to merit and fitness. (Matter of Maye v Lindsay, 33 NY2d 552, 414 US 1069.) III. Local Law No. 20 violates the mandated notice, hearing, cause and range of penalties required by section 75 of the Civil Service Law. (Matter of Hecht v Monaghan, 307 NY 461; Mandelkern v City of Buffalo, 64 AD2d 279.) IV. Local Law No. 20 impairs constitutionally guaranteed pension rights. (Sgaglione v Levitt, 37 NY2d 507; Kranker v Levitt, 30 NY2d 574; Birnbaum v New York State Teachers Retirement System, 5 NY2d 1; Edwards v Codd, 59 AD2d 148; Sroka v Municipal Civ. Serv. Comm. of City of Buffalo, 57 AD2d 1064; Matter of Pauley v Noeppel, 1 Misc 2d 928; Matter of Rapp v New York City Employees’ Retirement System, 42 NY2d 1.) V. Local Law No. 20 is unconstitutional. (Hall v Wisconsin, 103 US 5; Fisk v Jefferson Police Jury, 116 US 131; Robertson v Miller, 276 US 174; Indiana ex rel. Anderson v Brand, 303 US 95; Trustees of Dartmouth Coll. v Woodward, 4 Wheat [17 US] 518; Matter of Fink v Finegan, 270 NY 356; Matter of Wittekind v Kern, 170 Misc 939, 256 App Div 918, 281 NY 701; Matter of Gilburt v Kroll, 17 Misc 2d 409, 1 AD2d 819, 2 NY2d 896; Matter of Poss v Kern, 263 App Div 320; Matter of Dowling v Brennan, 284 App Div 563.)

      Charles G. Moerdler, Burton N. Lipshie and Curtis C.

      Mechling for intervenors-respondents.
    I. The courts below correctly held Local Law No. 20 invalid as to the sanitation-men by reason of its contravention of sections 3 (subd 2-a) and 30 (subd 4-a) of the Public Officers Law. (Wholesale Laundry Bd. of Trade v City of New York, 43 Misc 2d 816, 22 AD2d 762, 15 NY2d 604; City of Corning v Corning Police Dept. of Corning City Unit of Steuben County Ch., Civ. Serv. Employees Assn., 81 Misc 2d 294, 49 AD2d 689; City of Utica v Mercon, Inc., 71 Misc 2d 680; Matter of Schneider v Rockefeller, 31 NY2d 420; Matter of Sherrill v O'Brien, 188 NY 185; Arkell v Commerce Ins. Co., 69 NY 191; Matter of Hayes, 263 NY 219, 264 NY 459; Matter of Yanoff v Commissioner of Educ. of State of N. Y., 64 AD2d 763; Hotel Dorset Co. v Trust for Cultural Resources of City of N. Y., 46 NY2d 358; Wambat Realty Corp. v State of New York, 41 NY2d 490; City of New York v State of New York, 31 NY2d 804; Matter of Roosevelt Raceway v County of Nassau, 18 NY2d 30, 395 US 453.) II. The courts below correctly held Local Law No. 20 invalid by reason of its violation of section 75 of the Civil Service Law. (Matter of Giliforte v City of Buffalo, 54 AD2d 170; Matter of Coates, 9 NY2d 242; Matter of Bell v Waterfront Comm. of N. Y. Harbor, 20 NY2d 54.) III. The courts below correctly held Local Law No. 20 invalid by reason of its violation of section 6 of article V of the New York State Constitution. (Matter of Maye v Lindsay, 33 NY2d 552, 414 US 1069; Wardwell v Board of Educ., 529 F2d 625.) IV. The courts below correctly held Local Law No. 20 invalid by reason of its violation of section 7 of article V of the New York State Constitution. (Sgaglione v Levitt, 37 NY2d 507; Kleinfeldt v New York City Employees’ Retirement System, 36 NY2d 95; Birnbaum v New York State Teachers Retirement System, 5 NY2d 1; Edwards v Codd, 59 AD2d 148.) V. Local Law No. 20 is invalid as to the sanitationmen by reason of its violation of rights afforded by the United States and New York State Constitutions, particularly the right to equal protection of the laws. (Krzewinski v Kugler, 338 F Supp 492; Shapiro v Thompson, 394 US 618; Matter of Schulman v New York City Health & Hosps. Corp., 38 NY2d 234.)

      Michael J. McNulty for appellants in the above-entitled proceeding.
    I. Sections 3 (subd 2) and 30 (subd 4) of the Public Officers Law may not be superseded by inconsistent local law. (Matter of De Hond v Nyquist, 65 Misc 2d 526; Matter of Hesselgrave v King, 45 Misc 2d 256; Matter of Maurer v

      Gross, 45 Misc 2d 13; Matter of Mayor of N. Y. [Elm St], 246 NY 72; Stapleton v Pinckney, 293 NY 330; Matter of Henneberger, 155 NY 420; Farrington v Pinckney, 1 NY2d 74; Matter of Roosevelt Raceway v County of Nassau, 18 NY2d 30; Bugeja v City of New York, 17 NY2d 606; People v Abraham, 44 AD2d 721; People v Scher, 76 Misc 2d 71.) II. Local Law No. 20 violates the hearing and range of penalties provisions of section 75 of the Civil Service Law. (Mandelkern v City of Buffalo, 92 Misc 2d 425.) III. Local Law No. 20 violates the constitutional requirement that appointments to the civil service of the city shall be made according to merit and fitness. (Matter of Maye v Lindsay, 33 NY2d 552, 414 US 1069.) IV. The enactment of Local Law No. 20 is an unconstitutional impairment of pension rights of respondent. (Matter of Rapp v New York City Employees’ Retirement System, 42 NY2d 1.) V. Local Law No. 20 unilaterally and unconstitutionally impairs contract obligations and rights. (Hall v Wisconsin, 103 US 5; Indiana ex rel. Anderson v Brand, 303 US 95; Matter of Fink v Finegan, 270 NY 356; Matter of Gilburt v Kroll, 17 Misc 2d 409, 1 AD2d 819; Shapiro v Thompson, 394 US 618.)

      Robert Abrams, Attorney-General (Daniel M. Cohen and Shirley Adelson Siegel of counsel), in his statutory capacity under section 71 of the Executive Law and CPLR 1012 (subd [b]). Sections 3 and 30 of the Public Officers Law involve matters of State concern and are general, not special laws.
    Despite the exceptions contained in their provisions, both sections are of State-wide application and are not restricted in their terms to New York City. Accordingly, neither section violates the provisions of sections 2 or 3 of article IX of the New York State Constitution or the provisions of the 1963 home rule amendment (art IX, § 11). (Matter of Peters v New York City Housing Auth., 307 NY 519; People v Carcel, 3 NY2d 327; Comiskey v Arlen, 43 NY2d 696; Matter of Van Berkel v Power, 16 NY2d 37; Wiggins v Town of Somers, 4 NY2d 215; Matter of De Hond v Nyquist, 65 Misc 2d 526; Matter of Taylor v Sise, 33 NY2d 357; McGowan v Maryland, 366 US 420; Williamson v Lee Opt. Co., 348 US 483, 349 US 925; Morey v Doud, 354 US 457.)
   OPINION OF THE COURT

Per Curiam.

The order of the Appellate Division should be affirmed, with costs.

New York City may not, through Local Law No. 20 of the Local Laws of 1978 (Administrative Code of City of New York, §§ B49-4.0, B49-4.1, B49-4.2), make a residency requirement for municipal officers and employees applicable to members of its police, fire, correction and sanitation departments. As is conceded, the law as applicable to these persons is inconsistent with exemptions from municipal residency requirements contained in section 3 (subds 2, 2-a, 9) and section 30 (subds 4, 4-a, 5) of the Public Officers Law. Contrary to the city’s contention, these sections may not be superseded by local law under municipal home rule as they do not relate "to the property, affairs or government” of the city by "special law” (NY Const, art IX, § 2).

Home rule simply is not implicated when the Legislature acts in areas "other than the property, affairs or government of a local government” (NY Const, art IX, § 3, subd [a], par [3]). Under the limited meaning of this phrase, legislation of State import does not impinge upon municipal home rule simply because it touches matters that concern the affairs or property of the city (Adler v Deegan, 251 NY 467 [conditions of multiple dwellings]; see Hotel Dorset Co. v Trust for Cultural Resources of City of N. Y., 46 NY2d 358 [maintenance of cultural institutions]). While the structure and control of the municipal service departments in issue here may be considered of local concern within the meaning of municipal home rule (see Matter of Osborn v Cohen, 272 NY 55 [duties and number of firemen, hours of work]), the residence of their members, unrelated to job performance or departmental organization, is a matter of State-wide concern not subject to municipal home rule. The city offers nothing to show the insubstantiality of the State’s interest in affording residential mobility to members of the civil service.

Nor are the provisions of the statute infirm because, although cast in general terms, they may affect less than all cities. A statute dealing with matters of State concern is no less general because it classifies the cities affected on the basis of population or some other condition and extends its benefits only to one or a few cities (see Hotel Dorset Co. v Trust for Cultural Resources of City of N. Y., supra; Matter of McAneny v Board of Estimate & Apportionment of City of N. Y, 232 NY 377). What is required is that the classification be defined by conditions common to the class and related to the subject of the statute (cf. Farrington v Pinckney, 1 NY2d 74, 80-81; Stapleton v Pinckney, 293 NY 330, 335). And, it has long been recognized that New York City and other large municipal centers might reasonably receive different treatment (see Matter of 241 East 22nd St. Corp. v City Rent Agency, 33 NY2d 134; Matter of McAneny v Board of Estimate & Apportionment of City of N. Y., 232 NY 377, supra). Thus, to the extent that Local Law No. 20 is inconsistent with the Public Officers Law, it cannot stand.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

Order affirmed.