author: Gabrielli, J. Chief Judge Breitel

text:
    Hotel Dorset Company, Respondent, v Trust for Cultural Resources of City of New York et al., Appellants.
    Argued November 27, 1978;
    decided December 27, 1978

      POINTS OF COUNSEL

      Merrell E. Clark, Jr., for Trust for Cultural Resources of the City of New York, appellant.
    I. Plaintiff has failed to meet its burden of establishing the statutes’ unconstitutionality beyond a reasonable doubt. (Nettleton Co. v Diamond, 27 NY2d 182, 401 US 969; Matter of Van Berkel v Power, 16 NY2d 37; Matter of Fay, 291 NY 198; People ex rel. Henderson v Board of Supervisors, 147 NY 1; Matter of Malpica-Orsini, 36 NY2d 568; Wein v City of New York, 36 NY2d 610.) II. The challenged legislation fully satisfies the constitutional requirement that tax exemptions be granted by general laws. (Matter of McAneny v Board of Estimate & Apportionment of City of N. Y, 232 NY 377; Farrington v Pinckney, 1 NY2d 74; Matter of Du Bois v Town Bd. of Town of New Paltz, 35 NY2d 617; Matter of Mayor of City of N. Y. [Elm St.], 246 NY 72; People ex rel. Buffalo & Fort Erie Public Bridge Auth. v Davis, 277 NY 292; City of Rye v Metropolitan Transp. Auth., 24 NY2d 627; People ex rel. Lent v Carr, 100 NY 236; Bareham v City of Rochester, 246 NY 140.) III. The grant of condemnation power to the Trust for Cultural Resources is constitutional, and in any event does not invalidate the remainder of the legislation. (Matter of Murray v La Guardia, 291 NY 320; Berman v Parker, 348 US 26; Matter of Keystone Assoc. v Moerdler, 19 NY2d 78; Matter of Tuck v Heckscher, 29 NY2d 288; People v Adirondack Ry. Co., 160 NY 225, 176 US 335; Brooklyn Park Comrs. v Armstrong, 45 NY 234; Rindge Co. v County of Los Angeles, 262 US 700; Matter of Dubbs v Board of Assessment Review of County of Nassau, 81 Misc 2d 591; United States v Gettysburg Elec. Ry. Co., 160 US 668; Roe v Kansas, 278 US 191; Barnidge v United States, 101 F2d 295; United States v Certain Parcels of Land in Phila., 99 F Supp 714.) IV. The passage of the City Cultural Resources Act did not require a home rule message. (Adler v Deegan, 251 NY 467; Robertson v Zimmermann, 268 NY 52; Whalen v Wagner, 4 NY2d 575; Bugeja v City of New York, 17 NY2d 606; City of New York v State of New York, 31 NY2d 804; Wambat Realty Corp. v State of New York, 41 NY2d 490; Kelly-Sullivan v Moss, 174 Misc 1098, 260 App Div 921; Smith v Jensen, 85 Misc 2d 81; Matter of County of Suffolk v Water Power & Control Comm., 269 NY 158; People v Fire Assn. of Phila., 92 NY 311, 119 US 110.)

      Allen G. Schwartz, Corporation Counsel (Alfred Weinstein and L. Kevin Sheridan of counsel), for Abraham D. Beame, appellant.
    I. The tax exemption is granted as an incident of legislation dealing with education. Since that is a matter of State concern, the legislation is general, not local. The legislation is general for the additional reason that its effect is upon the State as a whole. (Ferguson v Ross, 126 NY 459; Robertson v Zimmermann, 268 NY 52; Adler v Deegan, 251 NY 467; Matter of Corning v Donohue, 37 AD2d 213, 29 NY2d 209; Matter of McAneny v Board of Estimate & Apportionment of City of N. Y., 232 NY 377; Matter of Holtzman v Power, 62 Misc 2d 1020, 34 AD2d 917, 27 NY2d 628; Farrington v Pinckney, 1 NY2d 74; Lanza v Wagner, 11 NY2d 317; Matter of Board of Educ. v City of New York, 41 NY2d 535; People ex rel. Frick Collection v Chambers, 196 Misc 1026, 276 App Div 891.) II. The incidental effect of the statute upon the "property, affairs or government” of the city is so slight as to be almost illusory. The statute does not relate to the city’s "property, affairs or government”, as that phrase is used in the Constitution, since the statutory purposes are, inter alia, to improve educational opportunities of the people of the State and to serve its economy, matters of substantial State concern. (Vroman v Fish, 181 App Div 502, 223 NY 540; City of New York v Village of Lawrence, 250 NY 429; Adler v Deegan, 251 NY 467; Whalen v Wagner, 4 NY2d 575; Wambat Realty Corp. v State of New York, 41 NY2d 490; Board of Educ. v City of New York, 41 NY2d 535; Matter of Malpica-Orsini, 36 NY2d 568.)

      Arthur Richenthal, David Abrams and David G. Richenthal for respondent.
    I. The State Cultural Resources Act — City Cultural Resources Act’s real property tax exemption is restricted exclusively to the private owners of the Museum of Modern Art’s apartment tower. Such statutes, therefore, are not "general laws” within the meaning of section 1 of article XVI of the State Constitution. (Stapleton v Pinckney, 293 NY 330; Matter of Henneberger, 155 NY 420; Farrington v Pinckney, 1 NY2d 74; Matter of Mayor of City of N. Y. [Elm St.], 246 NY 72; Matter of McAneny v Board of Estimate & Apportionment of City of N. Y, 232 NY 377; Gerosa v Long Is. R. R. Co., 207 Misc 360; Akari House v Irizzarry, 81 Misc 2d 543; Pratt Inst. v City of New York, 183 NY 151; Matter of Pell, 171 NY 48; City of Rye v Metropolitan Transp. Auth., 24 NY2d 627.) II. The City Cultural Resources Act violates the home rule protection of article IX of the State Constitution in selecting the Board of Estimate instead of the city’s legislative body, the city council, to approve the City Cultural Resources Act before it became effective. (Wambat Realty Corp. v State

      of New York, 41 NY2d 490; Adler v Deegan, 251 NY 467; Matter of Holland v Bankson, 290 NY 267; Matter of Osborn v Cohen, 272 NY 55.) III. The SCRA-CCRA’s explicit grant of condemnation power for the sole benefit of the Museum of Modern Arts is an unconstitutional taking. (Matter of Albany St, 11 Wend 148; Missouri Pacific Ry. Co. v Nebraska, 164 US 403; Denihan Enterprises v O’Dwyer, 302 NY 451; Yonkers Community Dev. Agency v Morris, 37 NY2d 478; Matter of New York City Housing Auth. v Muller, 270 NY 333; Matter of Niagara Falls & Whirlpool Ry. Co., 108 NY 375; Bush Term. Co. v City of New York, 282 NY 306; Courtesy Sandwich Shop v Port of N. Y. Auth., 12 NY2d 379, 375 US 78; Matter of Port of N. Y. Auth. v 62 Cortlandt St. Realty Co., 18 NY2d 250.)

      Louis J. Lefkowitz, Attorney-General (Shirley Adelson Siegel and Samuel A. Hirshowitz of counsel),
    in his statutory capacity under section 71 of the Executive Law and CPLR 1012 (subd [b]). I. There is no constitutional infirmity in the manner of exercise of the taxing power. (Wein v Beame, 43 NY2d 326; Bartle v Home Owners Coop., 309 NY 103; Kaskel v Impellitteri, 306 NY 73; Bacon v Miller, 247 NY 311; Kittinger v Buffalo Traction Co., 160 NY 377; Matter of Social Investigator Eligibles Assn. v Taylor, 268 NY 233; People v Tremaine, 252 NY 27; People ex rel. Buffalo & Fort Erie Public Bridge Auth. v Davis, 211 NY 292; Matter of Corning v Donohue, 37 AD2d 213, 29 NY2d 209.) II. The dominant purpose of condemnation for the proposed combined-use facility to house the Museum of Modern Art is to promote and enhance education in the arts. (Bush Term. Co. v City of New York, 282 NY 306; Matter of New York City Housing Auth. v Muller, 270 NY 333; Courtesy Sandwich Shop v Port of N. Y. Auth., 12 NY2d 379; Matter of Port of N. Y. Authority, 18 NY2d 250; Matter of City of New York [UN Dev. Corp.], 12 Misc 2d 535; Denihan Enterprises v O’Dwyer, 302 NY 451; Matter of Keystone Assoc. v Moerdler, 19 NY2d 78; Fallbrook Irrigation Dist. v Bradley, 164 US 112; Matter of Lyons Cemetery Assn., 93 App Div 19; Pocantico Water Works Co. v Bird, 130 NY 249.) III. No home rule message was required. (Matter of Board of Educ. v City of New York, 41 NY2d 535; Lanza v Wagner, 11 NY2d 317; Wambut Realty Corp. v State of New York, 41 NY2d 490; Robertson v Zimmermann, 268 NY 52; Adler v Deegan, 251 NY 467; City of New York v Village of Lawrence, 250 NY 429; Matter of Suffolk County v

      Water Power & Control Comm., 269 NY 158; People ex rel. Unger v Kennedy, 207 NY 533.)

      Donald J. Robinson, Louis G. Adolfsen and Eugene W. Harper, Jr., for the Whitney Museum of American Art, amicus curiae.

    I. The tax exemptions in the challenged legislation are valid. (Matter of New York El. R. R. Co., 70 NY 327; Wein v Beame, 43 NY2d 326; People ex rel. Hatch v Reardon, 184 NY 431; Waterloo Woolen Mfg. Co. v Shanahan, 128 NY 345; Farrington v Pinckney, 1 NY2d 74; Matter of McAneny v Board of Estimate & Apportionment of City of N. Y, 232 NY 377; People ex rel. Buffalo & Fort Erie Public Bridge Auth. v Davis, 277 NY 292.) II. No home rule message was required. (Adler v Deegan, 251 NY 467; Wambat Realty Corp. v State of New York, 41 NY2d 490; Matter of Board of Educ. v City of New York, 41 NY2d 535; City of New York v Village of Lawrence, 250 NY 429; Robertson v Zimmermann, 268 NY 52; Matter of McAneny v Board of Estimate & Apportionment of City of N. Y, 232 NY 377; Bugeja v City of New York, 24 AD2d 151, 17 NY2d 606; Lanza v Wagner, 11 NY2d 317; Kelly-Sullivan v Moss, 174 Misc 1098, 260 App Div 921; Smith v Jansen, 85 Misc 2d 81.) III. The grant of condemnation power to the Trust for Cultural Resources is constitutionally permissible. (Matter of Gottlieb v Duryea, 38 AD2d 634, 30 NY2d 807; Matter of Davies, 168 NY 89; Home Bldg. & Loan Assn. v Blaisdell, 290 US 398; Matter of Murray v La Guardia, 291 NY 320; Courtesy Sandwich Shop v Port of New York Auth., 12 NY2d 379, 375 US 78; Bush Term. Co. v City of New York, 282 NY 306; Cannata v City of New York, 11 NY2d 210; Matter of New York City Housing Auth. v Muller, 270 NY 333; KJC Realty v State of New York, 69 Misc 2d 99, 32 NY2d 664; Matter of Ryers, 72 NY 1.)
   OPINION OF THE COURT

Gabrielli, J.

The court is presented with a challenge to a complex and well-considered plan, the purpose of which is to provide support for the continuation of financially troubled cultural institutions and museums in the State of New York. The Legislature, by chapters 902 and 903 of the Laws of 1976, enacted articles 13-E and 13-F of the General Municipal Law known respectively as the New York State Cultural Resources Act (SCRA) and the New York City Cultural Resources Act (CCRA). The immediate effect of these enactments was to permit the Museum of Modern Art to realize income through tax equivalency payments that would be made upon the completion and sale or rental of condominium apartments to be constructed above the museum facilities.

The history and background of the litigation which propelled this case to our court is simply stated. Special Term ruled the provisions of these statutes to be constitutional over plaintiff’s claims that the result of the enactments was not a general law but a special law, and as such exceeded constitutional limitations. The Appellate Division, with one Justice dissenting, reversed Special Term and has held that the SCRA was a special law that could only be applicable to the Museum of Modern Art, a private nonprofit educational institution. The majority also concluded that since the CCRA involved condemnation of property, diversion of tax revenues and, further, because it was enacted without a home rule message, the New York State Constitution had been violated in several respects.

For the reasons hereinafter assigned and stated, we reverse the order of the Appellate Division and reinstate the order of Special Term.

The SCRA provides for the creation of cultural trusts (public benefit corporations) which, when authorized by separate legislation, are given the power to assist participating cultural institutions in the construction of combined-use facilities, i.e., institutions where part is devoted to the cultural purpose, and part used for commercial purposes designed to produce financial support for the cultural part. The legislation further provides that a trust is granted a general tax exemption, including an exemption from real estate taxation on the combined-use facility developed by the trust (General Municipal Law, § 317). The owners of the commercial part of the combined-use facility are required, however, to pay to the trust amounts equal to the real property tax that would otherwise be payable to the municipality. By separate legislation, the trust must specify the purposes for which, such payments will be used (General Municipal Law, § 307, subd 3) in aid of the cultural institution. In addition, this combined-use facility may not be developed by the trust unless the cultural institution to be aided has held fee title to contiguous tax-exempt real property in excess of 50,000 square feet for a period of at least five years (General Municipal Law, § 307, subd 1). The institution, if located within a city of one million or more population must have had average annual admissions of at least 500,000 persons for a period of at least five years, or average annual admissions of at least 50,000 persons for such a period if in a city with a population of 125,000 or more; and the attendance requirement may be satisfied on the basis of either the five-year period preceding enactment of the SCRA or the five-year period preceding the agreement between a trust and an institution for development of the combined-use facility (General Municipal Law, § 302, subd 5). It is further provided that the trust may acquire property by condemnation, but only if provided by separate legislation (General Municipal Law, § 307, subd 2).

The separate legislation needed to effectuate the general scheme of the SCRA on a local basis and to any particular cultural institution is, in the present instance, found in the CCRA. Under the CCRA a trust is created for New York City to develop combined-use facilities. The trust is empowered to acquire property by condemnation, but the area of taking is limited by metes and bounds to property contiguous to that owned by the Museum of Modern Art (General Municipal Law, § 329). The trust must remit to the city from tax equivalency payments an amount equal to the tax that otherwise would have been paid by the private owner of the condemned property, but not less than an amount equal to 10% of the tax equivalency payments for a period of 10 years following completion of the commercial construction; and the trust is to use the tax equivalency payments for servicing the debt incurred to build the institutional part of the combined-use facility. Then, after such servicing is complete, the tax equivalency funds are to be used only to pay the operating costs of the newly created institutional part of the facility. Any surplus of tax equivalency payments at the end of a fiscal year must be paid to the city (General Municipal Law, § 330, subd 1); and an abatement of tax equivalency payments is allowed while the facility is being constructed, and this abatement will follow a declining scale for the 10-year period following completion of construction (General Municipal Law, § 330, subd 2). Finally, the "effective date” portion of the CCRA legislation states: "This act shall take effect immediately, provided, however, that the provisions of the act shall not become operative unless and until the board of estimate, within ninety days after its enactment into law, adopts a resolution ratifying and approving the provisions hereof’. The board’s approval was effected on September 16, 1976.

The Museum of Modern Art is the first cultural institution in the State to avail itself of the benefits of the legislation. The trust created under CCRA, in conjunction with the museum, developed a plan for building a combined-use facility adjacent to the museum building on West 53rd Street in Manhattan. Under the plan, its facilities would be expanded whereby a museum wing consisting of approximately 50 stories would be constructed on the west side of the museum’s existing building. The bottom six stories would be devoted to cultural purposes such as gallery space and a book store. The remaining stories would be used for condominium apartments from which the tax equivalency payments for support of the museum are to be derived. And the needed land would be acquired by the trust through its condemnation powers. Plaintiff is a qualified taxpayer, claims ownership to air rights which may be condemned, and owns land contiguous to the rights to be acquired.

Plaintiff has attacked the enabling legislation as being, in effect, special legislation designed only for the benefit of the Museum of Modern Art; and it is alleged that the precise specifications in the legislation, to wit, the ownership of 50,000 square feet of property for five years, along with the average annual admissions of at least 500,000 persons, applies only to this museum. This, it is urged, violates several provisions of New York State Constitution, among which are article IX (§ 2, subd [b], par [2] [necessity for a home rule message]); section 17 of article III (no private bill shall grant any private corporation any immunity or franchise); section 1 of article XVI (exemption from taxation to be granted only by general laws); and article I (§ 7, subd [a] [property cannot be condemned for private use]).

The Appellate Division majority adopted and accepted these arguments and reasoned that article IX (§ 3, subd [d], par [1]) of the Constitution defines a general law as one "which in terms and in effect applies alike to all counties * * * all cities, all towns or all villages”; and that, despite the drafters’ attempts to clothe the enactments with general language, they were tailored for the Museum of Modern Art, and only for that institution. If this view were accepted as valid, of course, it would necessarily follow that the enactments are in violation of the Constitution in the several respects advanced by plaintiff and found by the Appellate Division.

The Special Term Justice, however, took a different view. He. stated.: "While the museum presently qualifies as the sole beneficiary of the statute, as has already been demonstrated the language of the law opens similar opportunities in the future to others who may be fitted into the wording of the statute. The new law does not grant any exclusive privilege or franchise and cannot under the circumstances be deemed a private bill since it satisfies the Constitutional test of generality. What is important, is that the grant according to the legislative findings, is for a public purpose both educational and cultural”.

It is significant to note that both courts below treated the case as one which turned on and was concerned only with questions of law, Special Term granting summary judgment for defendants, and the Appellate Division, on the other hand, denying that relief and granting summary judgment for plaintiff. Such being the case, it is difficult to understand why the Appellate Division majority stated in its opinion (63 AD2d, at p 162), "Nor is there any reasonable possibility that another cultural institution would ever become eligible.” Concededly, there is no agreed statement of fact in the record to support that conclusion — which is a conclusion that is essential to the Appellate Division’s holding.

Although the statutory specifications fit the present statistics applicable to the Museum of Modern Art, there is no showing that other institutions could not, in time, meet them also. Absent that showing, or absent a finding to that effect which could be made as a matter of law, a court is in no position to hold this legislation unconstitutional as special legislation applicable only to a single enterprise.

Seldom has any legislation been buttressed and accompanied by more detailed and elaborate legislative findings in support of its stated purposes. With respect to the SCRA, these findings consume two full pages of McKinney’s Laws (General Municipal Law, § 303) and are generally to the effect that cultural institutions and museums are to be preserved and fostered in the State public interest; that many of them are experiencing serious financial problems due to inflation with operating expenses outstripping revenues; that help must come from innovative plans for maximum use of real property which can support private enterprise which, in turn, can provide the needed revenue for the institutions; and that the plan will be of great aid to the cultural, educational and recreational interests of the residents of the State — and such is the plan of article 13-E. Similar, but briefer, findings accompany the CCRA in article 13-F (General Municipal Law, § 326).

In sum, the Legislature has thus clearly stated that these statutory plans comprise general legislation applicable Statewide to institutions which own or will own enough property, will serve the needs and desires of many people throughout the State, and generate enough existing interest to warrant recognition as institutions of sufficiently significant community value. Whether the Museum of Modern Art’s specifications were used simply as a model, or whether this particular museum was selected especially for initial help, or, indeed, whether there is a combination of both these factors, is of no consequence. The legislation is applicable to any institution which can meet the specifications, and plaintiff has not produced any proof that the Museum of Modern Art is the only institution which can ever do so.

Courts are required to exercise a large measure of restraint when considering highly intricate and imaginative schemes for public financing or for public expenditures designed to be in the public interest. Some may be highly controversial. But when a court reviews such a decision, it must operate on the rule that it may not substitute its judgment for that of the body which made the decision. Judges, however much they might disagree with the wisdom of the act under review, are not free to invalidate it on that ground (Matter of Malpica-Orsini, 36 NY2d 568, 570, 571). It is appropriate to here quote from Wein v City of New York (36 NY2d 610, 619, 620): "Where, as here, the statutory scheme stays within the letter of the Constitution * * * then we should heed Judge Desmond’s statement in Comerski (308 NY 248, 254, supra) that 'We should not strain ourselves to find illegality in such programs. The problems of a modern city can never be solved unless arrangements like these * * * are upheld, unless they are patently illegal. Surely such devices, no longer novel, are not more suspect now than they were twenty years ago when, in Robertson v Zimmerman (268 NY 52, 62) we rejected a charge that this was a mere evasion of constitutional debt limitations, etc. Our answer was this (p 65): "Since the city cannot itself meet the requirements of the situation, the only alternative is for the State, in the exercise of its police power, to provide a method of constructing the improvements and of financing their cost.” ’ ”

There is a simple, but well-founded, presumption that an act of the Legislature is constitutional and this presumption can be upset only by proof persuasive beyond a reasonable doubt (Montgomery v Daniels, 38 NY2d 41; Matter of Malpica-Orsini, supra, at p 570). As noted above, there just is no such proof in this case and, indeed, there is no indication in the majority opinion below that this presumption of validity was given any effect or even recognized.

There is also, of course, a further presumption, long recognized by this court, that the Legislature has investigated and found facts necessary to support the legislation (I. L. F. Y. Co. v Temporary State Housing Rent Comm., 10 NY2d 263, app dsmd 369 US 795) as well as the existence of a situation showing or indicating its need or desirability (Matter of Van Berkel v Power, 16 NY2d 37, 40).

Any argument that the enactments under attack are invalid must fail. There is ample precedent to support this sort of financing effort, especially with respect to the device of having a public benefit corporation (in this case the trust) utilize the power of condemnation, and legitimize the tax exemption for property, a portion of which is used for commercial purposes. In Bush Term. Co. v City of New York (282 NY 306), the Port Authority was authorized by statute to acquire property and construct a railroad terminal above which would be constructed space for commercial use. As this court stated: "Property held by an agency of the State is ordinarily immune from, taxation only while it is used for a public purpose. Property used primarily to obtain revenue or profit is not held for a public use and is not ordinarily immune from taxation, but property held by a State agency primarily for a public use does not lose immunity because the State agency incidentally derives income from the property” (282 NY, at p 321). The term "incidental” as thus used, does not mean that the public use must, as the court below indicated, outweigh the private use to which the facility is put. Certainly proportionate use was not a factor where the Port Authority was given the power to erect the World Trade Center where, by the terms of the statute, "portions of the buildings, structures, improvements and areas may * * * be devoted to * * * the production of incidental revenue * * * for the expenses of all or part of the port development project” (Courtesy Sandwich Shop v Port of N. Y. Auth., 12 NY2d 379, 390, app dsmd 375 US 78). Likewise, where the City of New York was deprived of tax revenues through a plan to allow for reconstruction of the Commodore Hotel, this court, in a unanimous decision, could find no unconstitutionality (Wein v Beame, 43 NY2d 326). There, all the property would be run for profit. Wembley would purchase the hotel from Penn Central for 10 million dollars and Wembley would then sell the building for one dollar to the Urban Development Corporation (UDC) thus rendering it tax exempt. The UDC would lease the building back to Wembley under a 99-year lease, the rent being payable to the city instead of the UDC, and for the first 40 years the rent would be less than the real estate taxes which otherwise would have been assessed. We held in that case that there was no violation of the New York State Constitution. We did note criticism of the plan through characterization of the UDC as a "strawman”, with no real interest in or connection with the project, which had been brought into the plan solely as a means of providing a tax exemption. But we held the scheme to be well within bounds considering that renovation of such a structure was a project to combat urban blight and thus in accord with the purposes of the Legislature in creating the UDC (Wein v Beame, supra).

With respect to the question of condemnation, it is unquestioned that a public benefit corporation can condemn property for a public use, if authorized by statute (Matter of Keystone Assoc. v Moerdler, 19 NY2d 78). Of interest, such power was given to the Port Authority in Courtesy Sandwich Shop (supra) where, as already noted, the use to which the condemned property would be put would be partially revenue producing; and in that case this court wrote: "Nor can it be said that the use of property to produce revenue to help finance the operation of those activities that tend to achieve the purpose of the project does not itself perform such a function, provided, of course, that there are in fact such other activities to be supported by incidental revenue production” (12 NY2d, at p 389).

Surely, if the State Legislature and a responsible unit of local government (here the Board of Estimate) believe that the preservation of cultural institutions is in the public interest in that visitors will be produced in the city in which they are located, and benefit all who attend, city residents and visitors from throughout the State alike, legislation is legitimate which thus subsidizes the institutions. The method here used cannot be said to run afoul of the Constitution. The fact that the Board of Estimate approval was required does not render the CCRA a special law. The Legislature can, without creating a special or local law, provide that a general law will not become effective until approved at the local level (Bank of Chenango v Brown, 26 NY 467; Corning v Greene, 23 Barb 33), although such approval is not necessary.

The traditional and legal test for a local law is whether the statute affects the "property, affairs or government” of a governmental subdivision of the State (NY Const, art IX, § 2), but that terminology does not prohibit the State from legislating with respect to these concerns (Wambat Realty Corp. v State of New York, 41 NY2d 490, 494; Adler v Deegan, 251 NY 467, 491, mot for rearg den 252 NY 574). As was stated in Wambat: "Thus, in the decisively enlightening case of Adler v Deegan, the court rejected a home rule challenge to the then Multiple Dwelling Law even though the statute treated only with housing in New York City” (41 NY2d, at p 494). If the subject matter of the legislation is of sufficient importance to the State generally, the legislation cannot be deemed a local law even though it deals directly with the affairs of a municipality (ibid.). This has been an accepted principle for many years, and there is ample showing from the legislative findings alone that the maintenance of cultural institutions is a State concern. Even if we considered that this legislation presently affects but one museum, the preservation of that one facility is of importance to the citizens of the State as well as the city. And, contrary to the unsupported finding below, the legislation is not confined to but this one facility. A class is opened up to similar treatment under the terms of the SCRA (see Farrington v Pinckney, 1 NY2d 74, 78, 79). Because of certain inequalities in the past where an exemption was unfairly granted to one applicant but denied to another similarly situated, the Constitution was amended to prohibit such action (see New York Constitutional Convention Committee [1938], Problems Relating to Taxation and Finance, pp 204-206). If, however, the legislative exemption is granted to a class, there is no constitutional impairment. "Early was it said that an act need not apply to all persons, places or things in the State to be deemed general, if it apply to a class, entry into which was governed by conformity or compliance with specified conditions” (Farrington v Pinckney, supra, at p 78). The case before us now certainly fits this yardstick and definition. Where, as here, the method of providing aid has an equal impact on all members of a rationally defined class similarly situated, the law is thus a general and not a special one (Wein v Beame, 43 NY2d 326, 331, supra).

In one of the rare instances in which a statute couched in "general” language was held to be special, Judge Cardozo wrote: "We close our eyes to realities if we do not see in this act the marks of legislation that is special and local in terms and in effect. This group of conditions so unusual and particular is precisely fitted to the claimants’ case, and only by a most singular coincidence could be fitted any other” (Matter of Mayor of City of N. Y. [Elm St.], 246 NY 72, 77-78). That case involved a statute which purported to revive entitlement to condemnation awards (generally) which had been barred by the Statute of Limitations. The "class” was limited to those who could show fact situations which, however, arose out of one particular instance. Thus, in reality, the statute could benefit only that one claimant. There was no way that anyone else could qualify because the requirements for entitlement consisted of events which had already taken place. In the case before us, however, the situation is, as above pointed out, quite different.

In summary, since the bulk of the reasons for the finding of unconstitutionality below rest on the completely unsubstantiated theory that the SCRA and the CCRA combine to form special and local legislation, such claims are completely dissipated when the claim of special or local legislation is found to have no vitality in any degree.

Accordingly, the order of the Appellate Division should be reversed, with costs, and judgment granted to appellants declaring the challenged legislation constitutional.

Chief Judge Breitel

(dissenting). I dissent and vote to affirm.

This case provides another example of burdening New York City’s taxpayers with additional long-term financial responsibilities when the existing fiscal crisis makes it difficult for the city to meet its most basic needs. Of course, if the constitutional underpinning for the extraordinary and ingenious convoluted devices used were present, that would be the end of the matter for the courts. Ultimate questions of policy are for the Legislature as the majority opinion makes so clear. Yet the practical peril produced by constitutional error in this case should be recognized. The issues therefore are not simply legalistic.

The evil is not that the city will be supporting a valued museum, for that would not be evil at all. Had expenditures for the museum been included in the city budget, straightforwardly, and subject to review and adjustment each year, there would be no objection. The evil, instead, is that stripped of ingenious gimmickry the net result of the statutory scheme is to conceal from taxpayers, perhaps for the long future, and from those concerned with the city’s credit the permanent, unreviewable diversion of anticipated city tax revenues to the museum.

With this context in mind, the constitutional issues are addressed. In doing so, however, one should not be deceived by the "now you see it, now you don’t” sleight of hand practiced by the drafters of the challenged legislation.

Section 1 of article XVI of the State Constitution provides: "Exemptions from taxation may be granted only by general laws.” The issue in this case is whether the challenged statutory exemption, tailored to apply to the Museum of Modern Art and to no other institution, is a general law merely because the museum is not explicitly designated by name. A subsidiary issue is whether the legislative attempt to vest the right of local approval of the City Cultural Resources Act in the Board of Estimate rather than the city’s legislative body, the city council, is a violation of the home rule article of the State Constitution (NY Const, art IX, §§ 2, 3).

The melange of other issues raised by plaintiff requires no discussion. As to those, there is agreement with the majority. In particular, it is obvious that an expansion of an important museum is a public use for which the grant of eminent domain power may be appropriate. This would be true even if the expansion were accompanied by incidental use for revenue producing purposes (see Courtesy Sandwich Shop v Port of N. Y. Auth., 12 NY2d 379, 390, app dsmd 375 US 78, mot for reh den 375 US 960). The Museum of Modern Art is a great cultural institution, and its expansion would enrich the entire State, if not the Nation. As with other great nonprofit cultural institutions, conscious public support in one legal form or another is justified.

Although the taxation article of the State Constitution was not added until 1938, the constitutional prohibition against tax exemption, except by general law, dates from 1901, when section 18 of article III (now § 17) of the Constitution was amended to provide: "The legislature shall not pass a private or local bill * * * Granting to any person, association, firm or corporation, an exemption from taxation on real or personal property.” This restriction on the legislative power was initiated by the Legislature itself, weary of the constant attempts to secure tax exemptions by private bill (3 Lincoln, Constitutional History of New York, pp 680-681; 7 New York State Constitutional Convention Committee [1938], Problems Relating to Legislative Organization and Powers, p 84).

It is not disputed that the legislative history establishes that the challenged legislation was drafted with only the Museum of Modern Art in mind. Desired was a statute that would permit the museum to use its proposed westwing expansion as a pretext for building a tax-exempt 50-story tower, with the attendant burdens on the municipal services. Forty-four stories would be used for private luxury condominium apartments, dwarfing the six stories allotted to the westwing. Enacted, after intensive lobbying efforts, were statutes general in terms, but containing restrictions making it evident that application would be and was intended to be limited to a single entity, like a private bill would be.

The challenged statutes, taken together, create the "trust for cultural resources of the city of New York”, and permit the trust, in conjunction with a participating museum, to build a facility to be used partly for museum purposes and partly for income-producing purposes. The "combined-use facility” would receive a real estate tax exemption. To qualify for participation, however, a museum must have had annual admissions of 500,000 for at least five years, and must have owned in fee for at least five years 50,000 square feet of tax-exempt real property contiguous to the museum. The Museum of Modern Art is the only institution in the City of New York that qualifies for participation. Since no legislation has been enacted creating similar trusts for any other municipality in the State, the Museum of Modern Art is the only institution in the State currently eligible to take advantage of the tax exemption.

Of course, that is as it was intended to be. The legislative history indicates unequivocally that the bills were intended to "apply to one institution and one institution only” (Transcript of Assembly Proceedings, June 29, 1976, Appendix on App, p A189). It was even argued that this limited application was a benefit, because a broader scope would make the bills an unwanted "diversion of tax money” (id., p A193).

Defendants argue that a statute does not run afoul of the constitutional limitation merely because it is applicable to a single entity. In this, they are correct. But that does not mean the Constitution may be evaded simply by writing into an exemption restrictions with no valid purpose other than to limit its application to the entity the Legislature intends to benefit.

A valid tax exemption statute would apply to a class of taxpayers. Of course, the class, in a rare case, could be a class of one, but definition of the class, whatever its size, would have to be "based on conditions common to a class and germane to the subject of the Act” (Stapleton v Pinckney, 293 NY 330, 335). There must be reasons, not just excuses, for including some taxpayers and excluding others.

Thus, statutes which apply only to cities with population exceeding one million have been upheld as general although New York City is the only such city in the State (see Matter of McAneny v Board of Estimate & Apportionment of City of N. Y., 232 NY 377, 392-393). But that is because conditions in a city of such size, inevitably the center of a megalopolis, are demonstrably different from conditions in smaller cities. Health needs, housing and transportation needs, and other basic concerns may require greater or different attention in a city of that magnitude, and a statute with application limited to such large cities is not the less general because only one city in the State is sufficiently large to merit the different treatment (cf. Farrington v Pinckney, 1 NY2d 74, 83-85).

Always held unconstitutional, as not general, however, have been statutes written in general terms, but so tailored to apply only to a particular private or local interest (see Stapleton v Pinckney, 293 NY 330, 334-336, supra; Matter of Mayor of City of N. Y. [Elm St.], 246 NY 72, 75-79; Matter of Henneberger, 155 NY 420, 424-428). Thus, in the Henneberger case, a highway statute was expressed in general terms, but so restricted by conditions and exclusions as to be applicable only to a particular road in New Rochelle. "[T]o call this act a general law would be absurd”, said the court, treating with the requirements of section 18 (now 17) of article III of the State Constitution (155 NY, at p 427). "That the present act is expressed in general terms is not, and should not be, decisive of the question of its constitutionality. That is a question which must be decided not by the letter, but by the spirit, of the act” (id., at p 425).

Similarly in the more recent Stapleton case, the court held invalid, as in violation of the same constitutional prohibition, an act relating to jurors in counties with a population of 200,000 to 250,000, containing a city of at least 125,000 population. The court looked past the "general” language of the act and recognized that it could apply only to the County of Albany. Citing the Henneberger case, Judge Lehman wrote that a statute could not be considered general "where attempted 'classification’ is based on conditions 'which cannot be recognized as common to a class’ and have no reasonable relation to the subject. In such case there is in truth no 'class’ created but merely identifying marks of the locality or localities for which the Legislature is enacting a special law” (293 NY, at p 335).

The long-established rule governs in this case. The odd circumscription used in the now-challenged legislation serves only as an "identifying mark” for the singular Museum of Modern Art and its proposed expansion. No convincing explanation is offered for the requirement that 50,000 square feet of tax-exempt land be owned in fee for at least five years before participation is permissible. The square footage requirement is arbitrary, because any museum property, no matter how small, might be underutilized and suitable for improvement to benefit the public. The fee ownership requirement bears not at all on the question of underutilization, for some institutions might lease underutilized property for a long term at a nominal or substantial rental, quite common in the City of New York where some universities and churches own in fee numerous large parcels subject to century-long leases. The five-year requirement, concededly inserted to avoid having other museums purchase property with the intent of benefiting from the statute, substantiates the inescapable inference that the statute was to apply only to the museum. There could be little other reason for seeking to prevent other institutions from buying adjacent underutilized property for development purposes. In short, the requirements, taken together, were intended to apply to no reasonably defined class of institutions, but to the Museum of Modern Art alone. For that reason, the statute is unconstitutional.

The Legislature was, of course, patently aware that the bill before it was to benefit only the Museum of Modern Art. As one opponent noted during Assembly debate on the bill, "I don’t object to Mr. Siegel’s bill because it tries to help our cultural institutions in the City of New York which are responsible for bringing in more business and taxes than anything else we have in the City of New York. I am opposed to the bill because it gives to one institution, an institution that is wealthy, that can function, it gives them money to expand while there are many others throughout the City of New York that are in bad financial condition also” (Transcript of Assembly Proceedings, June 28, 1976, Appendix on App, p A184). And, as the Assembly sponsor acknowledged, "[t]he purpose is to allow the real estate taxes to be used to finance the expansion of the construction of the Museum.” (Id., p A183.) It is ludicrous to argue now that it was intended to have general application.

Appellants argue that since the challenged statute creates a public benefit corporation, the Trust for Cultural Resources, the statute must be treated as a general one because the public at large is to benefit. The suggested rule would permit easy circumvention of the constitutional requirement that tax exemptions be granted only by general law, for it would permit the Legislature to deem a private or local matter to be of public interest, to create a public benefit corporation to purchase property or otherwise deal with the matter, and then to grant the public benefit corporation a tax exemption. That result is supported neither by logic nor by the cases cited by appellants.

True, there have been cases sustaining tax exemptions granted to property owned by public benefit corporations (see Wein v Beame, 43 NY2d 326; People ex rel. Buffalo & Fort Erie Public Bridge Auth. v Davis, 277 NY 292). But in none of those cases was the public benefit corporation set up to benefit primarily a single private institution, whether worthy as is the museum or not. More important, in none of those cases was the public benefit corporation set up as a dummy for the exclusive purpose of obtaining a tax exemption on a particular piece of property. Involved in each case was a public benefit corporation created with objectives and authority of greater breadth than the desire to benefit a single institution. The cases emphatically do not stand for the position that any legislation creating a public benefit corporation is a "general” law.

Nor is Bush Term. Co. v City of New York (282 NY 306, 317-322) of help to defendants. That case involved the tax status of real property owned by the Port Authority and used as a railroad terminal. No explicit tax exemption was granted, either by general or special law, so no question arose under the constitutional provisions litigated in the present case. Instead, in the Bush Terminal case, the issue was whether the unique nature of the Port Authority, an agency created by bi-State compact, required that its property be tax-exempt even in the absence of an explicit exemption statute (see id., at p 317).

Thus, since the challenged statutes purport to create a tax exemption by other than a general law, they should be held invalid. But the City Cultural Resources Act is invalid for another reason as well. The Legislature, in enacting the bill, by its terms a special law applying only to New York City, provided that it should not take effect unless and until it was approved by the New York City Board of Estimate. The decision to vest this right of approval in the Board of Estimate rather than the city’s legislative body, the city council, was a matter "in relation to the property, affairs or government of [a] local government”. Since there was no home rule message, and no certificate of necessity by the Governor, the bill was enacted in violation of section 2 of article IX of the State Constitution.

Not questioned is that the substance of the legislation relates to matters of State, not strictly local, concern. Museums serve an educational function, and, as with educational matters, there can be no question that support of a great museum is a matter of State concern.

At issue instead is the State’s usurpation of the local government’s prerogative to designate the local governmental body that should approve legislation that substantially affects the city’s future revenue. That the City Cultural Resources Act would have a special effect on the city cannot be disputed; the Legislature conceded as much by making enactment of the statute conditional on approval by the city Board of Estimate. In fact, the bill was defeated on the first vote taken by the Assembly, at least in part because it was believed that a home rule message was required. Only on the last day of the Legislature’s regular session was the bill passed by the Assembly, and then only after insertion of the provision requiring approval by the Board of Estimate.

Once it is decided that city approval is necessary, however, approval itself is strictly a matter of the "property, affairs or government” of the city. The city’s elected legislative body is the city council, and it should have been for the council to decide how the bill should be approved. The Legislature’s callous substitution of the Board of Estimate for the city council violates both the spirit and the letter of the home rule article. It is, in short, a gross interference with the distribution of powers in the city’s local government.

Thus, the statutory scheme is unconstitutional. But that is not the whole of it. No constitutional provision was ever created nor is it ever to be interpreted without reading into it the effect of its violation. Constitutional provisions reflect a history of experience and mistrust of transient action dictated by transient necessities which may, as in the past, engender ultimate destruction for the society it is supposed to protect. The scheme, as noted, deprives the city’s coffers of needed tax revenue for the foreseeable future.

Once the proposed apartment tower is built and the tax exemption granted, even the most serious of fiscal crises might not permit the city to re-evaluate priorities. Even now, in a time of financial difficulty for municipalities in general and New York City in particular, substantial public support for an important museum may be thought beneficial or even essential. But it should not be for the Legislature to decide, by grant of a tax exemption in violation of the State Constitution, that the museum will be entitled to priorities, hidden because not subject to review in the annual budget, over other needs in the decades to come. That, in short, is what this legislation would do. But worse, it would become a "legal” precedent.

Accordingly, I dissent and vote to affirm.

Judges Jones, Wachtler, Fuchsberg and Cooke concur with Judge Gabrielli; Chief Judge Breitel dissents and votes to affirm in a separate opinion in which Judge Jasen concurs.

Order reversed, etc.

      . This conclusion by the court below is apparently based on the following statement found later in the opinion: "Respondents, in fact, concede that only [the Museum of Modern Art] fits all the statutory eligibility criteria for a participating cultural institution.” (63 AD2d, at p 165.) It is not denied that at the present time the museum is the only institution meeting the statutory specifications. Obviously, there is no concession, however, that no other institution could ever become eligible.

      . The Whitney Museum of American Art has submitted an amicus brief in which it is noted that it, together with several other named museums, "may be able to benefit from the provisions of the challenged legislation by participating and expanding their own facilities”, a point which we take note of, without giving it any conclusive effect, which is indeed unnecessary upon our analysis.

      . The fact that the class may be small does not make the law special (Matter of

        McAneny v Board of Estimate & Apportionment of City of N. Y., 232 NY 377). There a statute establishing a transit commission in cities of over 1,000,000 was challenged as an invalid special law. Although the year was 1922 and Buffalo, the second largest city in the State, had less than that number of inhabitants, this court said: "It may be conceded that at the present time [the law] is applicable only to the city of New York, but if so it by no means follows that it was intended only for that city, since there may and probably will in the near future be one or more cities to which it will be applicable. Certainly there is no conclusive presumption to the contrary” (id., at p 393).

      . It is to be noted that the Constitution does not prohibit the Legislature from acting without a home rule message on matters of State concern (Wambat Realty Corp. v State of New York, 41 NY2d 490; Adler v Deegan, 251 NY 467).


source: Caselaw Access Project

author: Jasen, J. Wachtler, J. Fuchsberg, J.

license: Public Domain

text:
    The People of the State of New York ex rel. Joseph Ninesling et al., Appellants, v Nassau County Department of Social Services, Respondent.
    Argued October 16, 1978;
    decided December 1, 1978

      POINTS OF COUNSEL

      Brian C. Baker for appellants.
    I. The best interests of Chuck F. require that he remain with appellants so that they may adopt him. (State of New York ex rel. Wallace v Lhotan, 51 AD2d 252; Matter of Jewish Child Care Assn, of N. Y. [Sanders], 5 NY2d 222; Matter of Bennett v Jeffreys, 40 NY2d 543.) II. A Law Guardian should have been appointed to represent the separate and independent interests of Chuck F. (Matter of Ray A. M., 37 NY2d 619; Matter of Orlando F., 40 NY2d 103.) III. The ages of appellants are not a bar to their custody and ultimate adoption of him. (Matter of Infant S, 48 AD2d 425.) IV. Respondent should have been compelled to answer the written interrogatories which had been submitted to it. (Allen v Crowell-Collier Pub. Co., 21 NY2d 403.)

      Edward G. McCabe, County Attorney (Robert O. Boyhan of counsel), for respondent.
    I. The court below did not abuse its discretion, nor did it commit error of law in finding that the best interests of the child Chuck were to remove him from appellants and place him with a permanent adoptive family. (Matter of Bennett v Jeffreys, 40 NY2d 543.) II. The court below correctly determined the best interests of Chuck would be served by removing him from appellants’ temporary foster care and by placing him with a permanent adoptive family. (Matter of Alan D. M. v Nassau County Dept. of Social Servs., 58 AD2d 111; Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196; Matter of Reed v Daniels, 45 AD2d 980; Organization of Foster Families for Equality & Reform v Dumpson, 418 F Supp 277, revd on other grounds sub nom. Smith v Organization of Foster Families, 431 US 816; Drummond v Fulton County Dept. of Family & Children’s Servs., 547 F2d 835, 563 F2d 1200.) III. The court below did not err in failing to appoint a Law Guardian to represent the interests of the child Chuck. (Matter of Ray A. M., 37 NY2d 619; Matter of Orlando F, 40 NY2d 103; Matter of Tyease "J”, 83 Misc 2d 1044.) IV. The ages of appellants are a factor which must be considered in determining the best interests of the child Chuck. (Matter of Infant S., 48 AD2d 425.) V. The court below did not commit error in refusing to compel respondent to answer the written interrogatories of appellants.

      Steven R. Shapiro and Marcia Robinson Lowry for Children’s Rights Project of New York Civil Liberties Union, amicus curiae.

    The only relevant criterion in a potential adoptive placement is the child’s best interest which should never be sacrificed to either administrative procedures or bureaucratic convenience. (Matter of Gault, 387 US 1; Matter of Winship, 397 US 358; Goss v Lopez, 419 US 565; Carey v Population Servs. Int., 431 US 678; Planned Parenthood of Mo. v Danforth, 428 US 52; Tinker v Des Moines School Dist., 393 US 503; Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Samantha S., 80 Misc 2d 217; Matter of Mary I v Convent of Sisters of Mercy in Brooklyn, 200 Misc 115; Matter of Fitzsimmons v Liuni, 51 Misc 2d 96, 26 AD2d 980.)
   OPINION OF THE COURT

Jasen, J.

In this proceeding, appellants, foster parents certified with respondent Nassau County Department of Social Services, seek judicial review of a determination of respondent to remove for the purpose of adoption an infant, Chuck F., placed in appellants’ home under the foster care program.

The infant Chuck F., born out of wedlock on November 1, 1976, was placed by his natural mother with respondent for temporary placement while she contemplated surrender of the child for permanent adoption. Four days after the child’s birth, respondent placed Chuck F. with appellants, who had on four prior occasions served as foster parents, for the express purpose of providing the child with a preadoptive foster home. Consistent with this purpose, respondent, after receiving a surrender of the child by his natural mother, notified appellants on February 25, 1977, that Chuck F. would be removed from their care for permanent placement with prospective adoptive parents. Thereafter, on April 6, 1977, appellants contacted respondent and indicated for the first time a desire to adopt the child. A conference was held on May 10, 1977, at which respondent informed appellants that they would not be permitted to adopt Chuck F. The following day respondent served appellants with a formal notice of removal. Rather than surrendering the child to respondent, appellants commenced this proceeding for a writ of habeas corpus to stay the removal of the child.

Special Term granted appellants physical custody of Chuck F. pending a "fair hearing” under section 400 of the Social Services Law, after which the Commissioner of the Department of Social Services upheld respondent’s determination to remove the child from appellants’ foster care. Upon a motion by respondent to confirm the commissioner’s determination, Special Term ordered a supplemental judicial hearing. On the basis of testimony elicited at both the fair hearing and the supplemental hearing, Special Term denied appellants’ application, concluding that the best interests of Chuck F. would be served by permitting respondent’s removal of the child to an adoptive home. The Appellate Division unanimously affirmed, without opinion. There should be an affirmance.

Prior to addressing the merits, we comment briefly upon the procedural posture in which this case comes before us. Pursuant to the statutory scheme created by the Legislature (Social Services Law, § 400), a foster parent aggrieved by a determination of the Social Services Department to remove a child from a foster home may request an internal review of the determination within the department in the form of a "fair hearing”. Upon the exhaustion of this administrative remedy, an aggrieved foster parent may seek judicial review of the agency’s determination in the Supreme Court through the vehicle of an article 78 proceeding. (See, e.g., Matter of Mundie v Nassau County Dept. of Social Servs., 88 Misc 2d 273; Matter of Ida Denise W., 77 Misc 2d 374.) The administrative and judicial review afforded an aggrieved foster parent under this statutory scheme, although dormant until the removal of a child from a foster home by the Department of Social Services, provides a sufficient forum for the consideration of the interests of foster children and parents to satisfy the demands of due process. (See Smith v Organization of Foster Families, 431 US 816, 847-856.)

Rather than invoking the procedure intended for review of removal orders, appellants commenced the instant proceeding in the nature of a writ of habeas corpus to secure judicial review of respondent’s determination to remove Chuck F. from appellants’ home prior to the act of removal. The availability of habeas corpus as a form of injunctive relief to forestall the removal of a child from a foster home until after a "fair hearing” and judicial review of the agency’s determination runs counter to the scheme adopted by the Legislature. Moreover, although habeas corpus is frequently employed as a means of resolving custody disputes, appellants, who throughout this proceeding have retained de facto custody of Chuck F., can make no claim that respondent, in which legal custody of Chuck F. is vested, has improperly restrained or detained the child as a basis for issuance of the writ. (Cf. People ex rel. Williams v Windham Child Care, 55 AD2d 146.) Inasmuch as respondent has not raised this issue, however, we treat this proceeding for purposes of our review as if the trial court had converted it to an article 78 proceeding to review the determination of respondent after the "fair hearing”.

Turning to the merits, we proceed in our analysis with a frank realization that the factual setting before us is not a novel or isolated occurrence, but, rather, an all-too-common pattern of events indicative once again of the inherent difficulties presented in child custody cases. Before this court stand appellants who from all the testimony elicited at the hearings below appear to be of fine character and who undoubtedly are sincere in their offer of love for Chuck F. Equally zealous in its concern for the child, however, is respondent which, as the agency charged with legal custody of Chuck F., maintains that the child should be placed in an adoptive home which it has selected for the child after detailed investigation, rather than remaining for purposes of adoption in a foster home which, although investigated by respondent prior to the temporary placement for foster care, was investigated solely for that limited purpose without consideration of its future suitability as an adoptive home.

In balancing the parties’ competing contentions, both of which are premised upon the best interests of the child, we believe the nature and function of foster care as a program must be borne in mind. Through the foster care program, children, who have not as yet been surrendered for adoption, are placed by a State welfare commission or a recognized social agency with foster parents for "board and care”. (See Goldstein, Freud and Solnit, Beyond the Best Interests of the Child [1973], pp 23-26.) The foster parent-child relationship is a temporary relationship intended to provide the child with the benefits of a family setting, as an alternative to institutionalized care. (See Katz, Legal Aspects of Foster Care, 5 Fam LQ 283, 285.) As in the present case, foster parents generally enter into this compensatory arrangement with the express understanding that the placement is temporary, rather than permanent as in the case of adoption, and that the legal custodian, here respondent, retains the right to remove the child upon notice at any time.

Because of the temporary nature and function served by foster care, the criteria employed by agencies in the investigation of prospective foster parents differ from that employed in the investigation of prospective adoptive parents. (See Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196, 204.) Naturally, the former criteria center less upon psychological aspects of prospective parents and more upon their material qualifications: that is, their ability to provide "board and care”. (See McNamara, The Adoption Adviser [1975], p 122.) The common practice of matching a child’s adoptive parents as closely as possible with his or her biological parents in terms of, for example, age, race and religion, is, of course, not present to the same degree in the foster care program. (See Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196, 204, supra.) Consequently, if after temporary placement, foster parents, contrary to their agreement, express a desire to adopt a foster child, the agency’s plan for the child’s adoption must be delayed while, as in this case, the agency, if it objects to the adoption by the foster parents, attempts to vindicate its conception of the child’s best interests through litigation. (See Matter of Runyon, 268 Cal App 2d 918, 921.)

The delay caused in such a case is amply demonstrated today. Chuck F. was placed in appellants’ home on November 5, 1976 prior to the surrender of the child for adoption by the natural mother. Shortly after the natural mother formally surrendered the child, respondent requested the return of the child for permanent placement. Notwithstanding this notification on February 25, 1977, the child remains in appellants’ home to this day, almost two years after the first notice of intent to remove was received by appellants.

Reluctance on the part of foster parents to deliver children placed in their care presents more than mere administrative inconvenience for the Department of Social Services and adoptive agencies: it seriously jeopardizes their continued utilization of the foster care program. On a previous occasion, we observed: "[Fjoster care custodians must deliver on demand not 16 out of 17 times, but every time, or the usefulness of foster care assignments is destroyed. To the ordinary fears in placing a child in foster care should not be added the concern that the better the foster care custodians the greater the risk that they will assert, out of love and affection grown too deep, an inchoate right to adopt. The temporary parent substitute must keep his proper distance at all costs to himself.” (Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196, 205, supra.) (See Matter of Convent of Sisters of Mercy v Barbieri, 200 Misc 112, 113; Matter of Reinius, 55 Wn 2d 117, 128, n 4.) Abandonment of the foster care program with a concomitant return to institutionalized temporary care would deal a staggering blow needlessly to children already accustomed to the taste of a bitter pill.

In taking into consideration the future viability of the foster care program in determining the merits of the present appeal, we do not abdicate our duty as parens patriae to determine custody on the basis of the best interests of the child. However, a finding that the interests of a foster child would best be served by vesting custody in foster parents requires more than a mere showing that the foster parents would provide a loving adoptive home for the child.

To this point, useful analogy can be drawn to foster parents who seek to retain custody of a child after the natural mother, who had placed the child with a child care agency for temporary care, seeks the return of her child. In such cases, it is not sufficient for the foster parents to demonstrate that they would offer the child a better home: they have a far greater burden. To suceed, they must demonstrate that the return of the child to his or her natural parent would result in the child’s grave detriment. (Matter of Jewish Child Care Assn. of N. Y. [Sanders], 5 NY2d 222; see Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196, supra; cf. Matter of Bennett v Jeffreys, 40 NY2d 543.)

In a similar vein, although to an obviously lesser degree, foster parents who seek to retain custody of a child, thereby frustrating the adoption plan devised by the Department of Social Services or an adoption agency, the body charged with legal custody of a surrendered child, must demonstrate not only that they would make suitable adoptive parents, but, rather, that they would provide a better adoptive home than that planned by the department or agency. In other words, to succeed foster parents must bear the burden of showing a detrimental impact upon the child resulting from his or her removal from their foster care. (See State Dept. of Public Assistance v Pettrey, 141 W Va 719; see, also, Drummond v Fulton County Dept. of Family & Children’s Servs., 237 Ga 449, cert den 432 US 905.)

As a practical matter, foster parents seeking to retain custody of a child will not, as a general rule, be capable of satisfying this burden. It must be noted that in a case such as the present, we are not reviewing an adoption proceeding in which the qualifications of prospective adoptive parents are at issue. As a result, foster parents who seek to retain custody of a foster child have no medium in which to demonstrate that they would provide a better adoptive home than the, as yet undetermined, parents whom the Department of Social Services or an adoptive agency would eventually select to adopt the foster child.

The inherent difficulty facing foster parents in establishing that the interests of a foster child would best be served by permitting their retention of the child’s custody is tempered by a legislative recognition that at the expiration of an extended period of foster care the Department of Social Services or an adoptive agency’s plan for a child’s adoption loses something of its prima facie validity as an expression of the best interests of the child. Pursuant to subdivision 3 of section 383 of the Social Services Law, foster parents who have cared for a child continuously for two years may apply to adopt the child and are entitled to be given a preference over all other adoption applicants.

In the instant case, however, this provision was inapplicable inasmuch as appellants had cared for Chuck F. for less than four months when they were first notified of respondent’s intention to remove Chuck F. from their care. Appellants, who by their own action, have delayed the child’s removal from their home to the present day, may not now seek the benefit of the statutory adoption preference. To afford appellants this preferential status would render nugatory the two-year custodial requirement imposed by the Legislature.

In sum, the function served by foster parents plays a vital role in custodial child care. That role is, however, by express agreement a limited and temporary one, the qualifications for which differ markedly from those deemed necessary for permanent placement. To permit foster parents to frustrate the adoptive plan devised by a child’s legal custodian, here the Department of Social Services, would seriously jeopardize the continued utilization of the State foster care program. Apart from the detrimental impact which reluctance of foster parents to part with children in their care would have on the foster care program, it would appear virtually impossible, as a practical matter, for foster parents in a proceeding to retain custody of a child to demonstrate that a foster child’s best interests dictate that he or she remain in their care, inasmuch as the adoptive plan formulated by the child’s legal custodian remains as yet unrealized due solely to the resistance of the foster parents.

Accordingly, the order of the Appellate Division should be affirmed.

Wachtler, J.

(dissenting). In my view we can no longer say, as Special Term did, that taking this boy away from his foster parents would have no detrimental effect upon him. Special Term’s order, which was entered over a year ago, has never been enforced and since then the circumstances have substantially altered.

As a result of stays granted in connection with two appeals, the child has remained with his foster parents and has now lived with this family for over two years. During this period the child’s attachment to his foster parents has undoubtedly grown particularly in view of the fact that he has been with them since he was four days old and has known no other parents. Neither his natural mother or father or any other relative has visited him since he was placed with the petitioners. To completely sever his relationship with his foster parents at this stage, under these circumstances, borders on the inhumane.

Indeed the Legislature has provided that when foster parents have cared for a child for two years or more they may apply to adopt him and are entitled to a preference over all other applicants (Social Services Law, § 383, subd 3). The primary purpose of the statute, like all child custody rules, legislative and judicial, is to serve the best interests of the child (see, e.g., People ex rel. Cusano v Leone, 43 NY2d 665, 667; Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196). In this case it can hardly be doubted that it is in the best interest of the child to remain with his foster parents. The question is not whether the foster parents should be denied the benefit of the statute because they refused to surrender the child upon request and, by obtaining stays, delayed his return. Certainly the child cannot be held responsible for the delays. To deny him the benefit of the statute would be to ignore the very purpose for which the statute was created.

In addition it should be emphasized that this is not a case of "child snatching”. The foster parents did not attempt to remove the child from the jurisdiction or otherwise resort to illegality or defiance of court orders (cf. Matter of Nehra v Uhlar, 43 NY2d 242). The agency’s right to demand return of the child, after the natural mother finally surrendered him for adoption and after the foster parents themselves expressed a desire to permanently adopt him, posed a novel question. And, as noted, the foster parents’ custody throughout the litigation has been continued by court-ordered stays, the most recent having been granted by this court.

This is a unique situation which should not recur. Now the court has held, and I agree, that foster parents must return the children entrusted to their care upon demand unless they can show that there would be a "detrimental impact upon the child resulting from his or her removal from foster care.” In the future this problem should rarely occur particularly in the typical case, as here, where the child was a four-month-old infant when the agency requested his return. In these cases then there will generally be little or no basis for granting a stay and therefore no threat of seriously delaying or disrupting the foster care and adoption programs. Unfortunately, the majority, in its overriding concern for the outcome of future cases and apparent need to set an example in this case, has overlooked the unique predicament of this two-year-old boy by wrenching him away from the only parents he has ever known.

Accordingly the order of the Appellate Division should be reversed.

Fuchsberg, J.

(dissenting). Because of the special circumstances applicable to this case as spelled out in Judge Wachtler’s dissent and the overriding concern that this court for a long time now has manifested for the best interests of children who find themselves in disputed custodial situations (see Bunim v Bunim, 298 NY 391, and its progeny), I, too, would reverse.

However, by my vote in these ad hoc circumstances, I do not intend a departure from the statutory rule of general application, under which preferences are not granted to foster parents until they have had custody for two years. In recent years, the Legislature has evidenced much concern in this area. And, with the broad resources at its command for the investigation of the operational, medical, psychological and other factors bearing on adoptions, whether a cutting down of the two-year period is warranted and can be effected without undermining the salutory purposes of foster care are determinations which obviously would have to be made by it and not by us.

Chief Judge Breitel and Judges Jones and Cooke concur with Judge Jasen; Judge Wachtler dissents and votes to reverse in an opinion in which Judge Gabrielli concurs; Judge Fuchsberg dissents and votes to reverse in a separate dissenting opinion.

Order affirmed, without costs.


author: Wachtler, J.

text:
    Leon E. Wein, Appellant, v Comptroller of the State of New York et al., Respondents.
    Argued January 8, 1979;
    decided February 6, 1979

      POINTS OF COUNSEL

      Leon Edward Wein, pro se, and William J. Quirk for Leon E. Wein, appellant.
    Plaintiff-appellant, as a citizen taxpayer, has standing to sue the State of New York claiming that it is incurring bonded indebtedness in violation of the Constitution. (Boryszewski v Brydges, 37 NY2d 361; St. Clair v Yonkers Raceway, 13 NY2d 72; Wein v City of New York, 36 NY2d 610; Wein v State of New York, 39 NY2d 136; New York Public Interest Research Group v Carey, 42 NY2d 527; Wein v Carey, 41 NY2d 498.)

      Robert Abrams, Attorney-General (Jean M. Coon of counsel), for respondents.
    I. This action is barred by article 7-A of the State Finance Law. (Boryszewski v Brydges, 37 NY2d 361; Wein v City of New York, 36 NY2d 610; Wein v State of New York, 39 NY2d 136; Wein v Carey, 41 NY2d 498; New York Public Interest Research Group v Carey, 42 NY2d 527.) II. In any event, the complaint fails to state a cause of action.
   OPINION OF THE COURT

Wachtler, J.

The question on this appeal is whether a citizen taxpayer has standing to challenge the constitutionality of the issuance of State bond anticipation notes.

In December, 1976 the plaintiff, Leon Wein, commenced this action as a citizen taxpayer seeking a declaratory judgment that 74 million dollars in bond anticipation notes issued by the State in March of that year were issued in violation of the State Constitution. Specifically he claimed that the notes had been issued to finance a 1975-1976 State deficit and that this practice, characterized as "back bonding”, is prohibited by sections 11 and 12 of article VII of the State Constitution. In addition to demanding a declaration that the practice is unconstitutional, the complaint requests an injunction precluding the defendants "from issuing any further back-bonding debt.”

The defendants moved to dismiss on the ground, among others, that a taxpayer who, like the plaintiff, had not purchased any of the notes and is not otherwise personally aggrieved by their issuance, lacks standing to challenge the constitutionality of the procedure employed. Special Term granted the motion and dismissed the complaint holding that article 7-A of the State Finance Law denies a taxpayer standing to maintain an action with respect to the issuance of State bonds or bond anticipation notes. The Appellate Division affirmed for the reasons stated at Special Term.

On this appeal, taken as of right on the ground that a constitutional question is presented (CPLR 5601, subd [b], par 1), the only issue involves the plaintiff’s right or standing to maintain the action. The plaintiff argues that our decision in Boryszewski v Brydges (37 NY2d 361), established a broad right of standing on behalf of taxpayers to seek judicial review of governmental action which is said to be unconstitutional; that article 7-A of the State Finance Law, although enacted after Boryszewski', does not alter or abridge the right judicially created and that cases from this court, decided before the enactment of the statute (citing Wein v City of New York, 36 NY2d 610) and afterwards (citing Wein v State of New York, 39 NY2d 136; Wein v Carey, 41 NY2d 498; New York Public Interest Research Group v Carey, 42 NY2d 527) have recognized the right of a taxpayer to challenge the issuance of bonds or anticipation notes.

In the Boryszewski case we held that a citizen and taxpayer can maintain an action "to test the constitutionality of a State statute authorizing the expenditure of State moneys” (supra, at p 363). That determination, expanding a taxpayer’s standing to sue, was not based on any constitutional right of standing. The only constitutional principle bearing on the standing issue was the doctrine of separation of powers which had previously been asserted negatively to bar taxpayers’ suits. Under prior law it was held that the courts lacked the power to "interfere” with the "acts of another department of government” except to determine "the individual rights of the parties” and that a taxpayer’s interest in the expenditure of State moneys was not sufficiently direct or immediate for him to be considered an aggrieved party (Schieffelin v Komfort, 212 NY 520, 530, 537; St. Clair v Yonkers Raceway, 13 NY2d 72). Thus the recognition in Boryszewski of the taxpayer’s legitimate and significant interest in State expenditures did not call for the recognition of a new constitutional right of standing but rather the abandonment of an old constitutional impediment to standing in these cases (see, e.g., St. Clair v Yonkers Raceway, supra, at p 80 [Fuld, J., dissenting]; Boryszewski v Brydges, supra, at p 364).

The Legislature too has acknowledged that "each individual citizen and taxpayer of the state has an interest in the proper disposition of state funds and properties” (State Finance Law, § 123). Within two months of the Boryszewski decision the Legislature added article 7-A to the State Finance Law, which also permits a citizen taxpayer to "maintain an action for equitable or declaratory relief, or both, against an officer or employee of the state who in the course of his or her duties has caused, is now causing, or is about to cause a wrongful expenditure, misappropriation, misapplication, or any other illegal or unconstitutional disbursement of state funds or state property, except that the provisions of this subdivision shall not apply to the authorization, sale, execution or delivery of a bond issue or notes issued in anticipation thereof by the state or any agency, instrumentality or subdivision thereof or by any public corporation or public benefit corporation” (State Finance Law, § 123-b, subd 1). The statute establishes a uniform procedure (State Finance Law, § 123-c), authorizes the court to require the plaintiff to post an undertaking as security for costs (State Finance Law, § 123-d) and permits the court to reimburse the plaintiff for costs and attorney’s fees if the action is successful (State Finance Law, § 123-g). The statute further provides that "[n]othing in this article shall abridge or alter rights of actions or remedies now or hereafter existing” (State Finance Law, § 123-i).

Subsequent to the effective date of article 7-A (Sept. 1, 1975; see L 1975, ch 827, § 2) Boryszewski was extended to permit a taxpayer to challenge the constitutionality of a revenue raising, as distinguished from an expenditure, measure. In Wein v Carey (41 NY2d 498, 500, 501, supra) it was held that a taxpayer had standing to contest the issuance of tax and revenue anticipation notes issued by the State. This was viewed as a logical consequence of Wein v State of New York (39 NY2d 136, supra), an earlier taxpayer’s suit, which involved a claimed unconstitutional lending of the State’s credit in connection with the issuance of State tax and revenue anticipation notes. In no case however have we held that a taxpayer has standing to challenge the issuance of State bonds or bond anticipation notes. The question was raised in New York Public Interest Research Group v Carey (42 NY2d 527, supra) but was not reached because it was found that plaintiff’s challenge to pending legislation was premature. And in Wein v City of New York (36 NY2d 610, 621, supra) the taxpayer’s right to test the constitutionality of a municipal bond issue had been expressly granted by statute (General Municipal Law, § 51).

Thus the cases cited by the plaintiff do not in fact authorize this particular suit. But neither does article 7-A expressly prohibit the action as the defendants contend.

The "exception” concerning State bond issues and bond anticipation notes (State Finance Law, § 123-b, subd 1) is ambiguous. It is of course not a true exception since the statute only grants taxpayer standing with respect to State expenditures and does not include revenue raising. Neither can the "exception” be considered an express prohibition against such suits since, by its terms, the statute simply "shall not apply” in such cases. The plaintiff then cannot claim standing under the statute. That, however, still leaves open the question as to whether he can bring the suit under the rule adopted in Boryszewski in view of the fact that the Legislature specifically disclaimed any intent to "abridge or alter rights of actions or remedies now or hereafter existing” (State Finance Law, § 123-i).

The difficulty with the wording of the statute is apparently largely due to the fact that it was drafted prior to Boryszewski and at a time when it was contemplated that the court would not alter the existing law (see appendix to respondent’s brief). Thus, although it was not enacted until after Boryszewski was decided, it is not accurate to say, as the defendants urge, that the statute codified the decision, or as the plaintiff suggests, that it was intended to supplement the decision by establishing an alternative and completely separate ground for suit.

In our view, now that the Legislature has spoken, the statute should be considered controlling where applicable. In cases where the statute has authorized a taxpayer’s suit, that is, in cases involving a claimed unauthorized expenditure of State funds, the parties must follow the statutory procedures and, if required by the court, the plaintiff must post an undertaking for costs and the defendant may be ordered to pay costs and expenses. In suits not covered by the statute, such as taxpayers’ challenges to tax or revenue anticipation notes, the question of standing must be resolved by the courts under common-law principles (see, e.g., Wein v Carey, 41 NY2d 498, supra).

The question of standing in the case now before us must also be resolved on common-law grounds because, as noted, the statute does "not apply” to taxpayer suits involving revenue raising through State bonds and bond anticipation notes. On the other hand, although the Legislature has not, in so many words, prohibited the suit, the statutory "exception” does indicate a reasonably clear legislative intent to prevent taxpayer challenges with respect to a State "bond issue or notes issued in anticipation thereof’ (State Finance Law, § 123-b, subd 1). Under this circumstance it would be inappropriate for the courts to confer standing in these cases since such a determination would, in effect, render the statutory "exception” a nullity and ignore the expressed legislative policy to the contrary. Thus we have concluded that whether the taxpayer relies on the statute or the case law, he lacks standing to challenge the issuance of State bonds or bond anticipation notes.

We recognize that challenges of this nature — as opposed to those involving expenditures of State funds — are often likely to increase the cost of raising the revenue by creating uncertainty in the minds of potential investors. Apparently this concern prompted the Legislature to deny standing to taxpayers in cases involving the sale of State bonds and bond anticipation notes (cf. Wein v Carey, 41 NY2d, supra, at p 502). This hazard, however, is also present in cases involving tax and revenue anticipation notes (see, e.g., Wein v Carey, supra, at p 502) and it is not clear why the Legislature did not express similar concern with the taxpayer challenges in these cases as well. In this and other respects the statute often creates ambiguities and incongruities which obscure the overall legislative policy. This is not only a matter of concern for the courts but a question which the Legislature may wish to consider.

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

Chief Judge Cooke and Judges Jasen, Gabrielli and Jones concur with Judge Wachtler; Judge Fuchsberg taking no part.

Order affirmed.

       It may be that in an extraordinary case a taxpayer’s standing may itself rise to a level of a constitutional right (cf. Wein v Carey, 41 NY2d 498, 502, supra). In this case however we find no basis for concluding that the plaintiff had a constitutional right to challenge the issuance of the bond anticipation notes.