author: Chief Judge Wachtler. Meyer, J.

text:
    Under 21, Catholic Home Bureau for Dependent Children, et al., Appellants, v City of New York et al., Respondents. Salvation Army, Appellant, v Edward I. Koch, as Mayor of the City of New York, et al., Respondents. Agudath Israel of America, Appellant, v City of New York et al., Respondents.
    Argued June 4, 1985;
    decided June 28, 1985

      POINTS OF COUNSEL

      John P. Hale and Patrick B. Silva for appellants in the first above-entitled action.
    I. The court below erred when it construed the 14th Amendment prohibition against State action as both authority and a mandate for Mayors to add sexual orientation as a new protected category in our Human Rights Laws. (Kilbourn v Thompson, 103 US 168; Matter of Broidrick v Lindsay, 39 NY2d 641; Rapp v Carey, 44 NY2d 157; Matter of Fullilove v Beame, 48 NY2d 376; Subcontractors Trade Assn. v Koch, 62 NY2d 422; University of Cal. Regents v Bakke, 438 US 265; State Div. of Human Rights v Kilian Mfg. Corp., 35 NY2d 201; Youngstown Co. v Sawyer, 343 US 579.) II. The court below erred in holding that all who supply goods and services to a municipality are engaged in State action and thus fall within the ambit of the proscription of the 14th Amendment. (Jackson v Metropolitan Edison Co., 419 US 345; Lugar v Edmondson Oil Co., 457 US 922; Blum v Yaretsky, 457 US 991; Rendell-Baker v

      Kohn, 457 US 830; Dronenburg v Zech, 741 F2d 1388.) III. The order and its implementing regulations clearly compromise appellants’ constitutionally protected right to freely exercise their religion. (Sherbert v Verner, 374 US 398; International Socy. v Barber, 650 F2d 430; NLRB v Catholic Bishop of Chicago, 440 US 490; Wisconsin v Yoder, 406 US 205.) IV. There is no basis in fact for the assertion by the majority in the court below that under Executive Order No. 50 a contracting agency may refuse to hire in those instances where sexual orientation or affectional preference is a bona fide occupational qualification. V. The court should reinstate the finding of Special Term that the New York City Board of Estimate has no greater authority to act in this area than the Mayor. (Matter of Natilson v Hodson, 264 App Div 384, 289 NY 842.) VI. The decided cases have consistently rejected the theory that homosexual and bisexual preference and practice are protected either by the existing human rights acts or by the 14th Amendment. (Dronenburg v Zech, 741 F2d 1388; Doe v Commonwealth’s Attorney, 425 US 901; DeSantis v Pacific Tel. & Tel. Co., 608 F2d 327; Sommers v Budget Mktg., 667 F2d 748; Blum v Gulf Oil Corp., 597 F2d 936; Smith v Liberty Mut. Ins. Co., 569 F2d 325; Beller v Middendorf, 632 F2d 788; Wholesale Laundry Bd. of Trade v City of New York, 17 AD2d 327,12 NY2d 998; Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99; People v De Jesus, 54 NY2d 465.)

      Joseph Polizzotto, William J. Moss, Edward P. O’Keefe and William D. Smith for appellant in the second above-entitled action.
    I. The Mayor lacks authority to prohibit employment discrimination on the basis of “sexual orientation” or “affectional preference”. (Subcontractors Trade Assn. v Koch, 62 NY2d 422; Matter of Broidrick v Lindsay, 39 NY2d 641; Rapp v Carey, 44 NY2d 157; Matter of Fullilove v Beame, 48 NY2d 376; Edenwald Contr. Co. v City of New York, 86 Misc 2d 711, 47 AD2d 610; Matter of County of Oneida v Berle, 49 NY2d 515.) II. The United States Constitution does not give the Mayor authority to prohibit employment discrimination on the basis of “sexual orientation” or “affectional preference”. (Katzenbach v Morgan, 384 US 641; Ex parte Virginia, 100 US 339; United States v Solomon, 419 F Supp 358, 563 F2d 1121; Youngstown Co. v Sawyer, 343 US 579; Subcontractors Trade Assn. v Koch, 62 NY2d 422; Doe v Commonwealth’s Attorney, 403 F Supp 1199, 425 US 901; Dronenburg v Zech, 741 F2d 1388; Rich v Secretary of Army, 735 F2d 1220; National Gay Task Force v Board of Educ., 729 F2d 1270; DeSantis v Pacific Tel. & Tel. Co., 608 F2d 327.) III. The Board of Estimate, like the Mayor, has no authority to legislate new protected classifications. (Loos v City of New

      York, 257 App Div 219; Bergerman v Lindsay, 25 NY2d 405, 398 US 955; Hotel Dorset Co. v Trust for Cultural Resources, 63 AD2d 157, 46 NY2d 358; BusTop Shelters v City of New York, 99 Misc 2d 198; Matter of Natilson v Hodson, 264 App Div 384, 289 NY 842; Matter of C.K. Rehner, Inc. v Gerosa, 17 Misc 2d 226; Aldrich v City of New York, 208 Misc 930; Matter of Moriarty v Kennedy, 20 Misc 2d 593.)

      David Zwiebel and Aaron Twerski for appellant in the third above-entitled action.
    I. The Constitution does not compel the Mayor to attach the “sexual orientation/affectional preference” strings to Agudath Israel’s city contract grants. (Blum v Yaretsky, 457 US 991; Chrisman v Sisters of St. Joseph of Peace, 506 F2d 308; Taylor v St. Vincent’s Hosp., 523 F2d 75, 424 US 948; Watkins v Mercy Med. Center, 364 F Supp 799, 520 F2d 894; Allen v Sisters of St. Joseph, 361F Supp 1212,490 F2d 81; Doe v Bolton, 410 US 179; Board of Educ. v Allen, 392 US 236; Sargent v Board of Educ., 177 NY 317.) II. The Constitution does not permit the Mayor to attach the “sexual orientation/affectional preference” strings to Agudath Israel’s city contract grants, (Subcontractors Trade Assn. v Koch, 62 NY2d 422; Everson v Board of Educ., 330 US 1; Sherbert v Verner, 374 US 398; Wisconsin v Yoder, 406 US 205; Dronenburg v Zech, 741 F2d 1388, 746 F2d 1579; Rich v Secretary of Army, 735 F2d 1220; Grove City Coll. v Bell, 687 F2d 684; Bob Jones Univ. v United States, 461 US 574.)

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Alfred Weinstein, Dennis deLeon, Michael S. Adler and Paul Rephen of counsel), for respondents in the first, second and third above-entitled actions.
    I. Executive Order No. 50 is valid as an exercise of the Mayor’s power and duty to effect compliance with the State and Federal constitutional prohibitions upon city funding of invidious private employment discrimination against homosexuals, and also as an exercise of his authority to determine the manner of conducting the business of the city by protecting it against interruptions of services rendered pursuant to contract. (Matter of Kimball, 33 NY2d 586; Norton v Macy, 417 F2d 1161; Ashton v Civiletti, 613 F2d 923; Better v Middendorf, 632 F2d 788, cert denied sub nom. Beller v Lehman, 452 US 905, reh denied sub nom. Miller v Weinberger, 454 US 855; Saal v Middendorf, 427 F Supp 192; Shalom v Secretary of Army, 489 F Supp 964; Martinez v Brown, 449 F Supp 207; National Black Police Assn. v Velde, 712 F2d 569; McNeal v Tate County School Dist., 460 F2d 568, 413 US 922; Jackson v Statler Found., 496 F2d 623.) II. Executive Order No. 50, to the extent here involved, is a valid exercise of the Mayor’s authority to enlarge the pool of persons eligible for discrimination-free, merit hiring. (Matter of Broidrick v Lindsay, 39 NY2d 641; Matter of Bauch v City of New York, 21 NY2d 599; Pilot Mechanical Corp. v Carroll, 94 Misc 2d 437; Matter of Dairymen’s League Coop. Assn. v Murtagh, 274 App Div 591, 299 NY 634; Matter of Ross v Wilson, 308 NY 605; Contractors Assn. v Secretary of Labor, 442 F2d 159, 404 US 854; Matter of Fullilove v Beame, 48 NY2d 376; Subcontractors Trade Assn. v Koch, 96 AD2d 774, 62 NY2d 422; Matter of Natilson v Hodson, 264 App Div 384, 289 NY 842; Flood v Kennedy, 12 NY2d 345.) III. Executive Order No. 50 is effective as an implementation of the power of the Board of Estimate to approve contracts of the type here involved. (Matter of Kay field Constr. Corp. v Morris, 15 AD2d 373; Matter of Mathalia Motors v City of Oneida, 105 Misc 2d 843, 84 AD2d 637; Matter of Zara Contr. Co. v Cohen, 45 Misc 2d 497, 23 AD2d 718; Matter of Marburg v Cole, 286 NY 202; Matter of Pollak v Conway, 276 App Div 435; Joseph Burstyn, Inc. v Wilson, 303 NY 242, 343 US 495; Matter of Luboil Heat & Power Corp. v Pleydell, 178 Misc 562; BusTop Shelters v City of New York, 99 Misc 2d 198; Matter of Smith v Morgan, 167 Misc 815, 254 App Div 672, 278 NY 667.) IV. Mayoral power to issue Executive Order No. 50 cannot be preempted except by Charter amendment. Nor has the City Council attempted preemption. (People v Cook, 34 NY2d 100; Council for Owner Occupied Hous. v Koch, 119 Misc 2d 241; Matter of Ames v Smoot, 98 AD2d 216, 62 NY2d 804; Kiernan v City of New York, 64 Misc 2d 617, 35 AD2d 1081; Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; People v Judiz, 38 NY2d 529; People v New York Trap Rock Corp., 57 NY2d 371; Reitman v Mulkey, 387 US 369.)

      Nathan Lewin and Dennis Rapps for the National Jewish Commission on Law and Public Affairs, amicus curiae.

    I. The practice and toleration of homosexuality is condemned by Jewish religious law. II. The Federal Constitution bars governmental imposition of vague oaths that encroach on constitutionally protected activities. (Baggett v Bullitt, 377 US 360; Cramp v Board of Public Instruction, 368 US 278.) III. A religious employer may reasonably apprehend that disapproval of homosexual practices will be classified as “discrimination”. (United States v City of Buffalo, 457 F Supp 612, 633 F2d 643; Steadman v Hundley, 421 F Supp 53; Compston v Borden, Inc., 424 F Supp 157; Rogers v Equal Employment Opportunity Commn., 454 F2d 234, 406 US 957; Bundy v Jackson, 641 F2d 934; Bridgeport Guardians v Delmonte, 553 F Supp 601.) IV. Religious organizations cannot constitutionally be required to surrender free exercise rights in order to qualify for city contracts. (Speiser v Randall, 357 US 513; Thomas v Review Bd., 450 US 707; Sherbert v Verner, 374 US 398; Shapiro v Thompson, 394 US 618; Elrod v Burns, 427 US 347; Perry v Sindermann, 408 US 593.) V. Statutory exemptions for religious institutions should be broadly construed to protect religious liberty. (NLRB v Catholic Bishop of Chicago, 440 US 490.)

      David L. Benetar and Stanley Schair for The New York Chamber of Commerce and Industry, amicus curiae.

    I. Executive Order No. 50 and the regulations promulgated thereunder represent an unlawful usurpation of the legislative function and are inconsistent with existing antidiscrimination laws which do not mandate affirmative action. (Rapp v Carey, 44 NY2d 157; Subcontractors Trade Assn. v Koch, 62 NY2d 422; Matter of Fullilove v Beame, 48 NY2d 376; Matter of Broidrick v Lindsay, 39 NY2d 641; Dames & Moore v Regan, 453 US 654; Youngstown Co. v Sawyer, 343 US 579.) II. The majority in the court below erred in finding a constitutional predicate for the issuance of Executive Order No. 50. (Youngstown Co. v Sawyer, 343 US 579; Shelley v Kraemer, 334 US 1; Civil Rights Cases, 109 US 3; Rendell-Baker v Kohn, 457 US 830; Lugar v Edmondson Oil Co., 457 US 922; Blum v Yaretsky, 457 US 991; Lefcourt v Legal Aid Socy., 445 F2d 1150; Myron v Consolidated Rail Corp., 752 F2d 50; Matter of Wilson, 59 NY2d 461; Ohio Contrs. Assn. v Keip, 713 F2d 167.) III. Executive Order No. 50’s extraterritorial application to facilities and employers outside New York is unconstitutional under both the Constitutions of the United States and of the State of New York. (Matter of Walston & Co. v New York City Commn. on Human Rights, 41 AD2d 238; Matter of New York Times Co. v City of New York Commn. on Human Rights, 41 NY2d 345; Bigelow v Virginia, 421 US 809; Hood & Sons v Du Mond, 336 US 525; White v Massachusetts Council of Constr. Employers, 460 US 204.)

      Gregory K. Hiestand, Joy D. Oberman, Robert E. Williams, Douglas S. McDowell and Lorence L. Kessler for The Equal Employment Advisory Council, amicus curiae.

    I. The decision below improperly sanctions the imposition by an Executive Order of extensive affirmative action requirements in a manner contrary to the State and Federal Constitutions and in disregard of prior decisions of this court. (Subcontractors Trade Assn. v Koch, 62 NY2d 422; Matter of Fullilove v Beame, 48 NY2d 376; Rapp v Carey, 44 NY2d 157; Matter of Broidrick v Lindsay, 39 NY2d 641; Youngstown Co. v Sawyer, 343 US 579; Washington v Davis, 426 US 229.) II. The city and the court below improperly rely upon Federal equal protection standards to justify the imposition of requirements that are inconsistent with the standards established by this court and the New York legislative bodies. (Brown v Board of Educ., 347 US 483; Massachusetts Bd. of Retirement v Murgia, 427 US 307; California Assn. of Physically Handicapped v Federal Communications Commn., 721 F2d 667; Brown v Sibley, 650 F2d 760; DeSantis v Pacific Tel. & Tel. Co., 608 F2d 327; Thomas v Firestone Tire & Rubber Co., 392 F Supp 373; Jackson v Metropolitan Edison Co., 419 US 345; Dorsey v Stuyvesant Town Corp., 299 NY 512, 339 US 981; Jensen v Farrell Lines, 625 F2d 379, 450 US 916; Blum v Yaretsky 457 US 991.)

      Robert Abrams, Attorney-General (Robert Hermann, O. Peter Sherwood, Rosemarie Rhodes, Lawrence S. Kahn and Debra L. Raskin of counsel), for the State of New York, amicus curiae.

    I. Executive Order No. 50’s bar against discrimination on the basis of sexual preference is a valid exercise of the Mayor’s authority to contract. (Matter of Bauch v City of New York, 21 NY2d 599; LeCesse Bros. Contr. v Town Bd., 62 AD2d 28; Matter of Dairymen’s League Coop. Assn. v Murtagh, 274 App Div 591, 299 NY 634; Matter of Ross v Wilson, 308 NY 605; Matter of Broidrick v Lindsay, 39 NY2d 641; Rossetti Contr. Co. v Brennan, 508 F2d 1039; Contractors Assn. v Secretary of Labor, 442 F2d 159; Subcontractors Trade Assn. v Koch, 62 NY2d 422; Matter of Fullilove v Beame, 48 NY2d 376; United States v New Orleans Public Serv., 553 F2d 459, 436 US 942, 638 F2d 899, 454 US 892.) II. The enforcement mechanism of Executive Order No. 50 insofar as it pertains to discrimination on the basis of race, national origin, sex, age, disability, marital status, creed or color is not properly before this court. (Wasmuth v Allen, 14 NY2d 391, 379 US 11.) III. Executive Order No. 50 permissibly implements legislative prohibitions against employment discrimination. (Matter of Fullilove v Beame, 48 NY2d 376; Matter of Broidrick v Lindsay, 39 NY2d 641; Norwood v Harrison, 413 US 455; National Black Police Assn. v Velde, 712 F2d 569.) IV. Neither the antidiscrimination statutes nor the free exercise clause of the 1st Amendment bars the application of Executive Order No. 50 to appellants. (Sherbert v Verner, 374 US 398; Bob Jones Univ. v United States, 461 US 574; United States v Lee, 455 US 252; Braunfeld v Brown, 366 US 599; Cooper v General Dynamics, 533 F2d 163.)

      Thomas B. Stoddard and Madeline Kochen for New York Civil Liberties Union, amicus curiae.

    I. Executive Order No. 50 is fully grounded in well-established constitutional principles and is therefore constitutional. (Columbus Bd. of Educ. v Penick, 443 US 449; Plyler v Doe, 457 US 202; Loving v Virginia, 388 US 1; Korematsu v United States, 323 US 214; Graham v Richardson, 403 US 365; Gleason v Gleason, 26 NY2d 28; Norton v Macy, 417 F2d 1161; Van Ooteghem v Gray, 628 F2d 488,654 F2d 304; Gay Students Org. v Bonner, 509 F2d 652; People v Onofre, 51 NY2d 476, 451 US 987.) II. Executive Order No. 50 is not contrary to this court’s earlier pronouncements concerning the State constitutional limitations on executive power. (Matter of Broidrick v Lindsay, 39 NY2d 641; Rapp v Carey, 44 NY2d 157; Matter of Fullilove v Beame, 48 NY2d 376; Subcontractors Trade Assn. v Koch, 62 NY2d 422; University of Cal. Regents v Bakke, 438 US 265; Brown v Board of Educ., 347 US 483.) III. Appellants cannot legitimately claim an infringement of their religious liberty. (United States v Lee, 455 US 252; Norwood v Harrison, 413 US 455; Matter of United States Power Squadrons v State Human Rights Appeal Bd., 59 NY2d 401; Thomas v Review Bd., 450 US 707; Sherbert v Verner, 374 US 398.)

      Robert L. Becker, Rosaria Esperon, Julius L. Chambers, Charles Steven Ralston, Ronald L. Ellis, David Seth Michaels, David Raff, Margaret Burnham, Stan Mark, Marcia Levick, Barbara Rochman, Sarah Wunsch, Abby Rubenfeld, Madeline Kochen, Thomas B. Stoddard and Douglas Kellner for Puerto Rican Legal Defense and Education Fund, Inc., and others, amici curiae.

    I. Executive Order No. 50 is a proper exercise of the Mayor’s contracting authority. (Matter of Broidrick v Lindsay, 39 NY2d 641; Matter of Fullilove v Beame, 48 NY2d 376; Subcontractors Trade Assn. v Koch, 62 NY2d 422; Matter of Bauch v City of New York, 21 NY2d 599; McMillen v Browne, 14 NY2d 326; Matter of Amcon Constr. Corp. v City of New York, 91 AD2d 872.) II. Statistical data, when utilized in conjunction with an examination of employment practices and procedures, provides a legitimate basis for a prima facie finding of discrimination. (Matter of CUNY-Hostos Community Coll. v State Human Rights Appeal Bd., 59 NY2d 69; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; State Div. of Human Rights v Kilian Mfg. Corp., 35 NY2d 201, 420 US 915; Matter of New York City Bd. of Educ. v Batista, 54 NY2d 379; Matter of Fullilove v Beame, 48 NY2d 376.) III. Executive Order No. 50 is a valid exercise of the Mayor’s power and duty to uphold the constitutional impermissibility of public funding of invidious private discrimination. (Lochner v New York, 198 US 45; Orr v Orr, 440 US 268; Norwood v Harrison, 413 US 455; Lee v Macon County Bd. of Educ., 267 F Supp 458; Lau v Nichols, 414 US 563.) IV. Relevant statutory and constitutional provisions do not demand, nor do they permit, a blanket exemption of religious organizations from the nondiscrimination requirements applicable to all city contractors under Executive Order No. 50. (Norwood v Harrison, 413 US 455; United States v Lee, 455 US 252; King’s Garden v F. C. C., 498 F2d 51, 419 US 996; Feldstein v Christian Science Monitor, 555 F Supp 974; Runyon v McCrary, 427 US 160; Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84; E. E. O. C. v Pacific Press Pub. Assn., 676 F2d 1272; Reitman v Mulkey, 387 US 369.) V. As amicus curiae in support of the cross appellant, the New York Chamber of Commerce and Industry may not raise the issue of extraterritoriality. (Matter of Lezette v Board of Educ., 35 NY2d 272; Colgate-Palmolive Co. v Erie County, 39 AD2d 641; Kemp v Rubin, 187 Misc 707; Dawe v Silberman, 185 Misc 335.)

      Richard E. Feldman for Lambda Legal Defense and Education Fund, Inc., amicus curiae.

    I. The court below correctly held that Executive Order No. 50 is grounded in Federal and State constitutional equal protection principles which bar arbitrary and invidious discrimination. (Norwood v Harrison, 413 US 455; National Black Police Assn. v Velde, 712 F2d 569; Burton v Wilmington Parking Auth., 365 US 715; Gilmore v City of Montgomery, 417 US 556; Plyler v Doe, 457 US 202; Norton v Macy, 417 F2d 1161; People v Onofre, 51 NY2d 476, 451 US 987; Baker v Wade, 553 F Supp 1121, 743 F2d 236; Hatheway v Secretary of Army, 641 F2d 1376, cert denied sub nom. Hatheway v Marsh, 454 US 864.) II. Independent of his constitutional obligations, the Mayor, as chief executive officer of the city, has the authority to require those doing business with the city not to discriminate in employment decisions on criteria unrelated to merit. (Subcontractors Trade Assn. v Koch, 62 NY2d 422; Matter of Bauch v City of New York, 54 Misc 2d 343, 21 NY2d 599, 393 US 834; McMillen v Browne, 14 NY2d 326; Matter of Broidrick v Lindsay, 39 NY2d 641; Matter of Fullilove v Beame, 48 NY2d 376; Contractors Assn. v Secretary of Labor, 442 F2d 159,404 US 854; Farkas v Texas Instruments, 375 F2d 629, 389 US 977; United States v East Tex. Motor Frgt. Sys., 564 F2d 179; Rossetti Contr. Co. v Brennan, 508 F2d 1039; Matter of Amcon Constr. Corp. v City of New York, 91 AD2d 872.) III. Plaintiffs have not effectively preserved any alleged claim under the free exercise clause. In any case, there is no free exercise protection for secular activities performed by organizations which seek to discriminate while taking city funds. (Melahn v Hearn, 60 NY2d 944; Matter of Eagle v Paterson, 57 NY2d 831; Barber v Dembroski, 54 NY2d 648; Schillawski v State of New York, 9 NY2d 235; People v Hicks, 287 NY 165; Farr v Newman, 14 NY2d 183; United States v Lee, 455 US 252; Forest Hills Early Learning Center v Lukhard, 728 F2d 230; St. Elizabeth Hosp. v National Labor Relations Bd., 715 F2d 1193.)
   OPINION OF THE COURT

Chief Judge Wachtler.

The question on this appeal is whether the Mayor of the City of New York has the authority to promulgate an Executive Order prohibiting employment discrimination by city contractors on the basis of “sexual orientation or affectional preference.” The Appellate Division held that the Mayor had this power. We disagree and hold that because of the separation of powers delineated in the City Charter, the Mayor has no authority to initiate such a policy.

I.

On April 25, 1980, the Mayor of the City of New York issued Executive Order No. 50 “to ensure compliance with the equal employment opportunity requirements of City, State and Federal law in City contracting” (Executive Order No. 50 § 1). The Executive Order applies to virtually every contract with the city, and requires that those entering into such contracts agree to ensure “equal employment opportunity” in all of their employment decisions. “Equal employment opportunity,” as defined in section 3 (i) of the order, includes not discriminating on the basis of “sexual orientation or affectional preference,” terms which all parties agree refer to a person being homosexual or bisexual rather than heterosexual. The order provides that the Mayor’s Bureau of Labor Services has the responsibility to implement, monitor compliance with, and enforce these equal employment requirements.

Pursuant to this grant of authority, the Bureau of Labor Services promulgated regulations, effective January 21, 1982, which require that specific language implementing Executive Order No. 50 be inserted into contracts with the city. In the required language, a contractor agrees, among other things, not to discriminate in any employment decision on the basis of “sexual orientation or affectional preference” and to state that condition in all solicitations or advertisements for employees.

Agudath Israel and the Salvation Army, the plaintiffs in two of three actions consolidated on appeal, are not-for-profit religious and charitable corporations. Both have annual contracts with the city, pursuant to which they provide social services such as day care facilities, counseling services, and senior citizen centers, and the city pays a portion of the costs of such services. The plaintiffs in the third action (the “Under 21” action) are not-for-profit corporations under the sponsorship of the Roman Catholic Archdiocese of New York, and they too provide social service programs partially funded through annual contracts with the city.

The plaintiffs in all three actions object on religious grounds to signing a contract in which they would agree not to discriminate on the basis of “sexual orientation or affectional preference,” and have advised the city that they will not sign any contracts which contain such a condition. The city, in turn, has notified the plaintiffs that the contracts for the services they provide will not be renewed unless plaintiffs are in full compliance with Executive Order No. 50 and the Bureau of Labor Services’ regulations promulgated thereunder, including the provision for insertion of the objected-to language into all the contracts.

Faced with the expiration of their contracts, plaintiffs brought three separate actions, each seeking a declaration that the portion of Executive Order No. 50 pertaining to “sexual orientar tion or affectional preference” is beyond the scope of the Mayor’s authority, and thus void, and a permanent injunction against enforcement of this part of the order and the regulations implementing it.

The plaintiffs in all three actions moved for summary judgment, and the motions were referred to the same Justice at Special Term. Special Term held that the challenged portion of Executive Order No. 50 was an impermissible usurpation of legislative power by Mayor Koch, and, in three separate judgments, declared that portion unlawful and permanently enjoined the city and the Mayor from enforcing it.

The Appellate Division consolidated the three appeals by the defendants, and in a split decision, disagreed with Special Term’s conclusion that the Mayor had exceeded his authority insofar as Executive Order No. 50 related to “sexual orientation or affectional preference”. Rejecting the separation of powers concerns expressed by Special Term and the dissenting Justice at the Appellate Division, the majority at the Appellate Division characterized those principles as “vestigial relics * * * relied upon for State court holdings in fewer and fewer desultory cases”, and concluded that the Mayor “did no more than make express the policies and principles [of equal protection] already firmly embedded in our State and Federal Constitutions.” (108 AD2d, at pp 258-259.) Upon “search of the record,” the Appellate Division granted defendants summary judgment declaring Executive Order No. 50 and the regulations promulgated thereunder constitutional and valid.

II.

The plaintiffs’ contention that the Mayor lacked the authority to proscribe discrimination by city contractors on the basis of “sexual orientation or affectional preference” is a facial attack on this portion of Executive Order No. 50, and our resolution of the case does not depend on the status of the plaintiffs as religious organizations. Nor do we decide today the extent to which New York City may regulate the employment practices of those with whom it does business. Rather, the sole issue we address is the extent of the authority in this area of the chief executive officer of the city, the Mayor, and specifically, whether the executive may forbid discrimination by city contractors on a ground not covered by any legislative enactment.

One of the fundamental principles of government underlying our Federal Constitution is the distribution of governmental power into three branches — the executive, legislative and judicial — to prevent too strong a concentration of authority in one person or body (see, Youngstown Co. v Sawyer, 343 US 579; id., at pp 634, 635 [Jackson, J., concurring]; 1 Story, Commentaries on the Constitution § 525 [5th ed]). We have consistently recognized that this principle of separation of powers among the three branches is included by implication in the pattern of government adopted by the State of New York (see, e.g., Matter of LaGuardia v Smith, 288 NY 1, 5-6; Matter of County of Oneida v Berle, 49 NY2d 515, 522), and, contrary to the Appellate Division’s characterization of the doctrine as a “vestigial relic,” we have very recently unanimously reaffirmed its continuing vitality (see, Subcontractors Trade Assn. v Koch, 62 NY2d 422, 427). While the doctrine of separation of powers does not require the maintenance of “‘three airtight departments of government’ ” (Nixon v Administrator of Gen. Servs., 433 US 425, 443; 1 Story, Commentaries on the Constitution § 525, supra), it does require that no one branch be allowed to arrogate unto itself powers residing entirely in another branch (Youngstown Co. o Sawyer, supra; Matter of Nicholas v Kahn, 47 NY2d 24, 30-31).

Of course, the pattern of government established for New York City by the City Charter is not identical to that of the United States or the State of New York. Still, the City Charter does provide for distinct legislative and executive branches: the City Council “shall be vested with the legislative power of the city, and shall be the local legislative body of the city” (New York City Charter, ch 2, § 21), while the Mayor “shall be the chief executive officer of the city” (id., ch 1, § 3). Thus, our prior decisions have held that, no matter how well-intentioned his actions may be, the Mayor may not unlawfully infringe upon the legislative powers reserved to the City Council (see, Subcontractors Trade Assn. v Koch, supra; Matter of Fullilove o Beame, 48 NY2d 376; Matter of Broidrick o Lindsay, 39 NY2d 641).

The authority conferred upon the Mayor, as chief executive officer, does, of course, include the power to enforce and implement legislative enactments (Subcontractors Trade Assn. v Koch, 62 NY2d, at p 427, supra). Indeed, if the City Council were to enact valid legislation proscribing discrimination by city contractors, or employers within the city generally, on the basis of “sexual orientation or affectional preference,” the Mayor would have the duty to enforce it. The City Council, however, has never enacted any such law despite the introduction of bills which would have done so. The New York City Human Rights Act, in defining the types of “unlawful discriminatory practices” which an employer may not engage in, contains no reference to “sexual orientation or affectional preference,” or to any similar classifications (Administrative Code of City of New York § Bl-7.0). Similarly, Administrative Code § 343-8.0, which restricts discriminatory employment practices by many city contractors, contains no such classification.

The relevant provisions of State law are closely akin to those of the city. The State Human Rights Law, which covers employment discrimination (Executive Law § 296), does not include among the protected classifications anything analogous to “sexual orientation or affectional preference,” nor does Labor Law § 220-e, which mandates the inclusion of an antidiscrimination provision in most State and municipal contracts, encompass any such category. Finally, there is no Federal statute which the Mayor might be implementing. Title VII of the 1964 Civil Rights Act (42 USC § 2000e), the employment discrimination provision of Federal civil rights legislation, does not include homosexuals or bisexuals among the protected classes of employees (see, e.g., DeSantis v Pacific Tel. & Tel. Co., 608 F2d 327; Blum v Gulf Oil Corp., 597 F2d 936).

The issue we face, therefore, is whether the Mayor, in including within the coverage of Executive Order No. 50 “sexual orientation or affectional preference,” despite the fact there is no legislative enactment prohibiting employment discrimination on such a basis, acted within the scope of his authority as the chief executive officer of the city.

III.

Defendants contend that the Mayor’s authority to promulgate the challenged portion of Executive Order No. 50 stems from two aspects of his functions as executive — the power to regulate the terms of city contracts, and the power or duty to prevent the city from engaging in or funding discriminatory conduct which violates the equal protection clauses of the Federal and State Constitutions. We address each of these arguments in turn.

A.

Under section 8 (a) of the City Charter, the Mayor has all of the residual powers of the city. Thus, in Matter of Bauch v City of New York (21 NY2d 599, 605), we noted that the Mayor had the authority to enter into contracts on the city’s behalf and to determine the manner of transacting its business and affairs. Defendants contend that this power to regulate the terms of the city contracts gives the Mayor the authority to forbid parties who contract with the city from discriminating on the basis of “sexual orientation or affectional preference”.

In Matter of Broidrick v Lindsay (39 NY2d 641, supra) and Matter of Fullilove v Beame (48 NY2d 376, supra), we held that attempts by the Mayor of New York City to mandate some type of affirmative action in employment decisions by city contractors were impermissible infringements upon the legislative power because they utilized a remedial device which, rather than implementing a legislative policy, enacted a new policy not embraced by the City Council. Defendants rely on language in Broidrick and. Fullilove approving executive action which “ ‘only would enlarge the pool of persons eligible for employment based on discrimination-free merit selection’ ” (Matter of Fullilove v Beame, 48 NY2d, at p 379, supra; Matter of Broidrick v Lindsay, 39 NY2d, at p 649, supra). This statement, however, was not intended to authorize the executive to enact his own views of what persons should be protected from employment discrimination without regard to the laws enacted by the Legislature. Rather, approval of enlarging the pool of employees was in reference to an executive implementing appropriate remedial relief to enforce a legislative policy.

Two other decisions from this court further explicate this distinction. In Rapp v Carey (44 NY2d 157), we invalidated a Governor’s Executive Order requiring a broad range of State employees within the executive branch, including many not subject to removal by the Governor, to file financial disclosure statements and to abstain from various political and business activities not otherwise prohibited. We held that the order in question went beyond the powers of the Governor, including the power to implement legislation, and unlawfully “assume[d] the power of the Legislature to set State policy in an area of concededly increasing public concern” (id., 44 NY2d, at p 160). Most recently, in Subcontractors Trade Assn. v Koch (supra), we held that the Mayor of New York City did not have the authority to mandate that at least 10% of all construction contracts awarded by the city be given to “locally based enterprises,” as such an order went beyond the Mayor’s “function of implementing general Charter-conferred powers” {id., 62 NY2d, at p 429). Of particular relevance here is our recognition in Subcontractors that “the general power to enter into contracts which is bestowed upon the executive branch of government ordinarily cannot serve as a basis for creating a remedial plan for which the executive never received a grant of legislative power” {id., at p 428).

Thus, as Special Term recognized, our prior cases hold that an executive may not usurp the legislative function by enacting social policies not adopted by the Legislature. Private employers in this State are free to make employment decisions on whatever basis they choose, as long as the basis is not prohibited by law (cf. O’Connor v Eastman Kodak, 65 NY2d 724; Murphy v American Home Prods. Corp., 58 NY2d 293). Congress, the State Legislature and the City Council have enacted laws restricting the bases upon which most private employers may discriminate. None of these legislative bodies, however, has chosen to include a person’s “sexual orientation or affectional preference” among the proscribed bases, nor have they established any general requirement that employment decisions must be merit-based. An attempt by the Mayor to broaden the class of persons protected from discrimination by private employers, or to require that all employment decisions be merit-based, however commendable, is an enactment of policy which the City Charter leaves to the City Council. Accordingly, the challenged portion of Executive Order No. 50 does not fall within the Mayor’s Charter-conferred power to regulate the terms of city contracts.

B.

The second basis put forth by the defendants for upholding the validity of the portion of Executive Order No. 50 covering “sexual orientation or affectional preference” is that the Mayor is properly acting to ensure compliance with constitutional guarantees of equal protection. The Appellate Division majority accepted this argument, concluding that the Mayor has the constitutional obligation, stemming from the equal protection clauses of the Federal and State Constitutions, to prevent all organizations contracting with the city from engaging in invidious discriminatory employment practices, which would include discrimination on the basis of sexual orientation.

Section 1 of the 14th Amendment to the United States Constitution provides in part that “No State shall * * * deny to any person within its jurisdiction the equal protection of the laws.” This provision extends, of course, to subdivisions of a State, such as New York City (see, e.g., Hunter v Erickson, 393 US 385). Plaintiffs contend, however, that the Mayor is attempting to “enforce” the equal protection requirements of the 14th Amendment in a manner which is reserved to Congress. Section 5 of the 14th Amendment states that “Congress shall have power to enforce, by appropriate legislation, the provisions of this [Amendment].” The significance of this section is that it gives to Congress some authority to effectively enlarge the substantive reach of the equal protection clause by enacting laws prohibiting certain action even though such action would not otherwise be found by the judiciary to violate equal protection (see, Katzenbach v Morgan, 384 US 641; United States v Guest, 383 US 745, 774 [Brennan, J., concurring]; Tribe, American Constitutional Law, at 28-29, 265-267; cf. City of Rome v United States, 446 US 156 [enforcement of 15th Amend]).

Although the Mayor does have a responsibility to uphold the United States Constitution, and a duty to prevent actions by the city which would violate the 14th Amendment’s requirement of equal protection, as interpreted by the judiciary, he does not have the power to expand the coverage of the equal protection clause. The Mayor, unlike Congress, has no authority to prohibit discrimination merely because he feels that the prohibition furthers the goals of the 14th Amendment. His duty extends only to the prohibition of such discrimination if it in fact violates that provision. Accordingly, the Mayor’s inclusion of “sexual orientation or affectional preference” in Executive Order No. 50 can be upheld under the 14th Amendment only if either discrimination on this basis by city contractors would violate the equal protection clause, or if the city would be violating the clause by contracting with those who so discriminate.

The prohibitions in the 14th Amendment are directed at the “State,” and they “ ‘erect no shield against merely private conduct, however discriminatory or wrongful’ ” (Blum v Yaretsky, 457 US 991,1002, quoting Shelley v Kraemer, 334 US 1,13; see, Jackson v Metropolitan Edison Co., 419 US 345, 349). In order for a court to conclude that there is “State action,” thus making equal protection requirements applicable, the alleged discriminatory conduct of a private employer must be “fairly attributable to the State” (Lugar v Edmondson Oil Co., 457 US 922, 937; see, Matter of Wilson, 59 NY2d 461, 476).

The Supreme Court has yet to formulate a single test which can be employed to determine whether there is the requisite degree of State involvement (see, Reitman v Mulkey, 387 US 369, 378), and all the facts and circumstances of a particular case must be considered (Burton v Wilmington Parking Auth., 365 US 715, 722). It is clear, however, that the mere fact that a private entity contracts with the government (see, e.g., Blum v Yaretsky, supra), is regulated by the government (see, e.g., Jackson v Metropolitan Edison Co., 419 US 345, supra), or performs a function also performed by the government (see, e.g., Rendell-Baker v Kohn, 457 US 830), is not enough by itself to treat it as a State actor. Rather, there must be some basis for finding that the State is “responsible” for the private conduct (Blum v Yaretsky, 457 US, at p 1004, supra), either because it maintains such a close relationship with the private actor that it can be viewed as a joint participant in all decisions of the latter (see, Burton v Wilmington Parking Auth., 365 US 715, supra), because it allows the private actor to perform a function traditionally the exclusive prerogative of the State (see, e.g., Evans v Newton, 382 US 296), or because it requires or otherwise encourages the challenged conduct of the private actor (see, e.g., Peterson v City of Greenville, 373 US 244).

There are no facts or circumstances pointed to by defendants or otherwise apparent which could make the city responsible for the employment decisions of the plaintiffs or of city contractors generally. The Supreme Court’s recent decision in Rendell Baker v Kohn (supra), virtually compels the conclusion that their conduct is not attributable to the city and thus cannot be said to violate the 14th Amendment. In Rendell-Baker, the entity in question was a privately operated high school in Massachusetts for maladjusted students. Virtually all of the school’s students were referred to it by city school committees and the State, and pursuant to contracts with these governmental entities, the school received funding which paid for most of the costs of educating these students. In an action brought by a discharged employee against the school, the Supreme Court held that the school’s personnel decisions were not State action, even though it received public funds, its business consisted almost exclusively of performing public contracts, and it performed a “public function,” where the government did not influence or coerce those decisions.

Thus, Executive Order No. 50, in prohibiting discrimination by city contractors on the basis of “sexual orientation or affectional preference,” is not prohibiting conduct covered by the 14th Amendment. The defendants contend, however, that even if the employment decisions of organizations contracting with the city are not State action, the city itself would be in violation of the 14th Amendment if it contracts with an entity which discriminates on the basis of “sexual orientation or affectional preference,” and the Mayor, therefore, is fulfilling his duty to prevent this violation. This contention is superficially appealing, but cannot withstand closer analysis.

Neither this court nor the Supreme Court has ever held that the government may have no contacts with a private entity which discriminates or otherwise acts in a manner in which the government itself could not. Furthermore, while there is a distinction between seeking to hold a private actor responsible under the 14th Amendment for discriminatory conduct and seeking to enjoin governmental involvement with that actor (Blum v Yaretsky, 457 US, at pp 1003-1004, supra; Note, State Action: Theories For Applying Constitutional Restrictions To Private Activity, 74 Colum L Rev 656, 698-699), the considerations of State action applicable to the former are also relevant to the latter (Blum v Yaretsky, 457 US, at p 1004, supra).

Defendants rely heavily on the Supreme Court’s decision in Norwood v Harrison (413 US 455), in which the court enjoined the State of Mississippi from lending textbooks to private schools with racially discriminatory admissions policies. The court concluded that, although the textbook lending program had not been implemented in order to further racial segregation, as it applied to all private schools and had begun prior to the desegregation of the public schools, the State was granting “tangible financial aid [which] has a significant tendency to facilitate, reinforce, and support private discrimination” {id., 413 US, at p 466).

There are several crucial distinctions between Norwood and this case. To begin, the Supreme Court found that the State’s action in Norwood was effectively promoting the discrimination by the private actors (see, Gilmore v City of Montgomery, 417 US 556, 568-569). In contrast, there is no evidence that the city, by contracting for goods or services with a private organization, would be promoting any discriminatory acts by that organization (cf. Novack, Rotunda & Young, Constitutional Law, at 520 [2d ed]). Additionally, while the State in Norwood was gratuitously providing aid to the private entities, the city, in entering into contracts, is purchasing items it requires or fulfilling obligations it has, thus further negating any assertion that it is promoting the discriminatory acts.

Perhaps the most significant distinction between Norwood and this case is that the former involved governmental entanglement in racial discrimination. The Supreme Court has consistently recognized that the central purpose underlying the equal protection clause was to prevent governmental conduct discriminating on the basis of race, and that any such discrimination is subject to the most exacting scrutiny (see, e.g., Palmore v Sidoti, 466 US 429, 104 S Ct 1879, 1881-1882; Washington v Davis, 426 US 229, 239). Consequently, it has become apparent that where racial discrimination by a private actor is involved, a lesser degree of State involvement than would otherwise be required will support a finding of “State action” (see, Adickes v Kress & Co., 398 US 144, 190-191 [Brennan, J., concurring in part, dissenting in part]; Taylor v Consolidated Edison Co., 552 F2d 39, 42, cert denied 434 US 845; Note, State Action: Theories For Applying Constitutional Restrictions To Private Activity, 74 Colum L Rev 656, 657-658, 661). More generally, government has been permitted fewer contacts with private actors engaged in racial discrimination than with those otherwise acting in a manner which the government itself could not (see, e.g., Granfield v Catholic Univ., 530 F2d 1035, 1046, n 29, cert denied 429 US 821; compare, e.g., title VI of the Civil Rights Act, 42 USC § 2000d [prohibiting racial discrimination in any activity or program receiving Federal financial assistance, without exception], with title IX of the Educational Amendments of 1972, 20 USC § 1681 et seq. [prohibiting sex discrimination in any educational program or activity receiving this assistance, but with several exemptions]; Norwood v Harrison, supra, with Board of Educ. v Allen, 392 US 236).

Courts have uniformly refused to apply the same level of scrutiny applied to racial classifications in determining equal protection challenges to classifications based on sexual orientation (see, e.g., Rich v Secretary of Army, 735 F2d 1220, 1229; Hatheway v Secretary of Army, 641 F2d 1376, 1382, cert denied 454 US 864; DeSantis v Pacific Tel. & Tel. Co., 608 F2d, at p 332, supra). We need not decide now whether some level of “heightened scrutiny” would be applied to governmental discrimination based on sexual orientation (see, Hatheway v Secretary of Army, 641 F2d, at p 1382, supra; Note, An Argument for the Application of Equal Protection Heightened Scrutiny to Classifications Based on Homosexuality, 57 S Cal L Rev 797, 810-834; Note, Challenging Sexual Preference Discrimination in Private Employment, 41 Ohio St U 501, 513-514). Rather, we conclude only that the equal protection clause does not ordinarily prevent the city from contracting with private employers who discriminate on this basis, as the existence of the contract would not, by itself, make the city “responsible” for the private employment decisions so as to invoke constitutional protections (see, Blum v Yaretsky, 457 US, at p 1004, supra). Thus, we reject defendants’ contention that the prohibition in Executive Order No. 50 against discrimination by city contractors on the basis of “sexual orientation or affectional preference” is necessary to prevent the city from aiding or engaging in a violation of the 14th Amendment.

As we have found that the Mayor lacked any authority to promulgate the challenged portion of Executive Order No. 50, we hold that this portion was an unlawful usurpation of the legislative power of the City Council. Accordingly, the order of the Appellate Division should be modified by reinstating the orders and judgments at Special Term.

Meyer, J.

(dissenting). In concluding that the Mayor of New York City is not empowered by Constitution, Federal or State, or statute to bar those contracting with the city from discriminating in employment on a basis unrelated to bona fide occupational qualification, the majority ignores the difference between hiring quotas affirmatively imposed and a negative ban on arbitrary discrimination, and drastically extends this court’s prior decisions concerning the Mayor’s power with respect to city contracts (Subcontractors Trade Assn. v Koch, 62 NY2d 422; Matter of Fullilove v Beame, 48 NY2d 376; Matter of Broidrick v Lindsay, 39 NY2d 641). I, therefore, respectfully dissent.

The conclusion that neither Constitution authorizes the Mayor to limit contracts with the city to entities that do not engage in arbitrary discrimination turns on the concept that the programs contracted for do not involve “State action.” There are a number of problems with that conclusion, however. First, plaintiffs’ challenge is to the facial validity of Executive Order No. 50 insofar as it affects all city contractors. Such contracts cover a broad range of mandated and discretionary services; as to the present plaintiffs alone, from counseling to senior citizen centers to foster care and adoption services. Foster care institutions of the same type as are involved here have, in fact, been found to be engaged in “State action” subject to the requirements of the Federal equal protection clause (Perez v Sugarman, 499 F2d 761), and in light of the total control over a child’s life that the city delegates to such institutions (as I have more fully outlined in Torres v Little Flower Children’s Servs., 64 NY2d 119, 130-132), the question whether their action is “State action” is not governed by the Supreme Court’s decision in Rendell-Baker v Kohn (457 US 830) regarding a private day school, which the majority deems controlling.

Second, whether a different standard of State action should apply under the equal protection clause of the State Constitution (art I, § 11) than the test applied under the 14th Amendment to the Federal Constitution is not as simple as footnote 6 in the majority opinion would make it appear. While we held in 1949 that the same standard would apply (Dorsey v Stuyvesant Town Corp., 299 NY 512, 530-531, cert denied 339 US 981), we have not had occasion to consider the question since then and it should be reexamined in light of the court’s decision in Sharrock v Dell Buick-Cadillac (45 NY2d 152).

We held in Sharrock that a lesser degree of State involvement was required to trigger the due process clause of the State Constitution (art I, § 6) than would be required under the 14th Amendment (45 NY2d, at pp 159-161). That holding was based in part on the absence of any reference to State action in the text of the State constitutional provision {id., at p 160). There is a similar absence of any explicit State action requirement in the State equal protection clause. Furthermore, because a long line of authority holds that the protection of a due process clause contains within it the requirement of equal protection (Examining Bd. v Flores de Otero, 426 US 572, 601; Weinberger v Wiesenfeld, 420 US 636, 638, n 2; Frontiero v Richardson, 411 US 677, 680, n 5; Shapiro v Thompson, 394 US 618, 641-642; Schneider v Rusk, 377 US 163, 168; Bolling v Sharpe, 347 US 497, 499), it makes little sense to have differing standards for State action under the State equal protection clause and the State due process clause. Yet, by accepting plaintiffs’ facial challenge to Executive Order No. 50, the court rejects any attempt to apply the State equal protection clause to particular city contracts.

If, however, it be accepted that neither constitutional provision is controlling, there remains the question whether the Mayor can adopt the policy that the city not contract with those who refuse to agree that they will not discriminate arbitrarily in employment decisions. As the court below makes clear, there can be no question that across-the-board discrimination against homosexuals, unrelated to any bona fide qualification for a particular position, is invidious and irrational. Nor is there any question that Executive Order No. 50 permits a contractor to discriminate as to any of the prohibited categories (race, creed, color, national origin, sex, age, handicap, marital status, sexual orientation or affectional preference) if it can be shown to be legitimately related to the requirement of a particular job. Thus, Executive Order No. 50, by barring discrimination against candidates meriting employment for reasons irrational because unrelated to qualification for employment, does no more than enforce merit selection.

In Matter of Broidrick v Lindsay (39 NY2d 641, supra), we explicitly recognized the Mayor’s right to require selection on the basis of merit. There we struck down an Executive Order mandating affirmative action but were careful to note that, “Insofar as programs do not mandate percentage employment formulas, but only would enlarge the pool of persons eligible for employment based on discrimination-free merit selection, they are permissible under existing law” (id., at p 649). Yet, the majority now rejects that view and reaches the remarkable conclusion that the Mayor has no power to require city contractors to make employment decisions on the basis of merit and fitness for the job. In other words, the Mayor cannot, by removing barriers to employment unrelated to qualification or merit, ensure that the city obtains the best possible services for the money it spends, because that policy has not been authorized or endorsed by appropriate legislation.

In fact, the Mayor “is empowered to enter into contracts * * * and to determine the manner of transacting the city’s business and affairs” (Matter of Bauch v City of New York, 21 NY2d 599, 605). In exercising that power, the Mayor’s obligation is to ensure that the city receive the greatest value for the lowest possible cost (see, e.g., Matter of Dairymen’s League Coop. Assn. v Murtagh, 274 App Div 591, 594-595, affd 299 NY 634). Thus, in Matter of Broidrick v Lindsay (39 NY2d 641, 648, supra), the court held that “cost minimization is a proper consideration in setting government procurement policy,” thereby explicitly recognizing the validity of the social policy embodied in Executive Order No. 50.

The majority holds, however, that notwithstanding the recognition in Matter of Broidrick v Lindsay (supra), and Matter of Fullilove v Beame (48 NY2d 376, 379, supra) of the Mayor’s power to require discrimination-free merit selection, he is permitted to ban particular kinds of discrimination by city contractors only if the State Legislature or City Council has either itself already done so or expressly authorized him to do so. But one searches in vain for any language in these cases, or in the other cases cited by the majority, that limits the Mayor’s power in this manner. Rapp v Carey (44 NY2d 157) invalidated an Executive Order issued by the Governor because it was not only unauthorized by any statute or constitutional provision, but was actually inconsistent with existing legislation (id., at pp 164-165). And the defect in the Executive Order in Subcontractors Trade Assn. v Koch (62 NY2d 422, 429, supra) was that it imposed an affirmative, remedial plan which required that “a certain percentage of city construction contracts * * * be allotted to a particular group or category of business enterprise”. Here, no affirmative action is mandated. There is only a ban on arbitrary discrimination, designed to implement the accepted social policy that the city should seek to get the most for its money.

Finally, in light of the majority’s reliance on separation of powers cases involving the Federal Constitution, it should be noted that a number of Federal courts have upheld presidential Executive Orders barring discrimination in Federally funded projects on the ground that “the federal government has a vital interest in assuring that the largest possible pool of qualified manpower be available for the accomplishment of its projects” (Contractors Assn. v Secretary of Labor, 442 F2d 159, 171, cert denied 404 US 854; accord, United States v New Orleans Public Serv., 553 F2d 459, 465, vacated on other grounds 436 US 942, adhered to 638 F2d 899, cert denied 454 US 892; Farkas v Texas Instrument, 375 F2d 629, 632, n 1). Those decisions were favorably commented on in Matter of Broidrick v Lindsay (39 NY2d 641, 647-648, supra), although they were distinguished on the ground that the Executive Order there in issue applied to the private projects of city contractors as well as their city-funded work and, thus, was intended to promote a social policy far beyond cost minimization in the expenditure of public funds. In the present case, Executive Order No. 50 applies only to contracts that are funded in whole or in part by government moneys appropriated or controlled by the city. Accordingly, it is carefully tailored to the policy of obtaining the best possible work effort from city contractors through a ban on arbitrary employment discrimination and is permissible under the prior decisions of this court. By reversing in this case, the majority adopts a new separation of powers principle that is inconsistent with both its own prior decisions and Federal case law.

Judges Jasen, Simons, Kaye, Alexander and Titone concur with Chief Judge Wachtler; Judge Meyer dissents and votes to affirm in a separate opinion.

Order modified, with costs to appellants, in accordance with the opinion herein and, as so modified, affirmed.

      . The plaintiffs in the Under 21 action included in their complaint a similar facial challenge to all of Executive Order No. 50 as well as a challenge to all of Executive Order No. 50, as applied to religious or religiously sponsored corporations. We reject the argument that the Mayor may not enforce existing State and city laws prohibiting employment discrimination through the establishment of an additional “enforcement mechanism” (the Mayor’s Bureau of Labor Services), and thus decline to hold all of Executive Order No. 50 invalid on its face.
      As to the second additional challenge, we cannot on the record before us determine the extent to which 1st Amendment and 14th Amendment concerns would be implicated by enforcement of the various aspects of the order on the Under 21 plaintiffs, and we thus decline to issue an advisory opinion on whether the Mayor may regulate the employment practices of a religious corporation contracting with the city.

      . Plaintiffs in the Under 21 action cross-appealed from the judgment at Special Term insofar as it did not invalidate all of Executive Order No. 50 (see, n 1, supra).

      . The Appellate Division order “modifies” the Special Term judgments as it affirms the judgment in the Under 21 action insofar as it did not invalidate all of Executive Order No. 50.

      . At Special Term, defendants asserted as a third basis for validating all of Executive Order No. 50 an alleged “ratification” through a resolution of the New York City Board of Estimate. Defendants have since abandoned any reliance on the Board of Estimate’s actions in attempting to uphold the order, and none of the complaints in the actions before us seeks to invalidate any Board of Estimate resolutions. Thus, the issue of whether the Board of Estimate may require that all contracts submitted to it for approval must prohibit discrimination by the contractor on the ground of “sexual orientation or affectional preference” is not before us on this appeal.

      . We reject the dissent’s argument that the challenged portion of Executive Order No. 50, by restricting non-merit-based discrimination, is permissible as an attempt by the Mayor “to ensure that the city receive the greatest value for the lowest possible cost” (dissenting opn, at p 367). To begin, as the most apparent consequence of the enforcement of this part of the order would be a reduction in the number of entities willing to contract with the city, it is unclear how the city would economically benefit from such enforcement. If a city agency feels that the price of a particular contract is too high due to a contractor’s employment policies, it is of course free to choose some other contractor. More significantly the dissent itself concedes that Executive Order No. 50 is an enactment of social policy, notwithstanding the economic arguments now set forth by defendants, and thus is akin to the remedial plan in Subcontractors which we unanimously held invalid. The Federal cases cited by the dissent in support of this argument (dissenting opn, at p 368) are distinguishable, as those courts were construing a specific grant of authority to the executive by Congress. Any dictum in those cases that the president has the authority to regulate the employment practices of government contractors even absent authorization by Congress was rejected by a more recent Federal case (see, Liberty Mut. Ins. Co. v Friedman, 639 F2d 164, 167-172, n 13).

      . We have held that the State constitutional equal protection clause (NY Const, art I, § 11) is no broader in coverage than the Federal provision (see, e.g., Matter of Esler v Walters, 56 NY2d 306, 313-314) and this equation with the Federal provision extends to the requirement of “State action” in order for the equal protection clause to be applicable (Dorsey v Stuyvesant Town Corp., 299 NY 512, 530-531, cert denied 339 US 981). In Dorsey, we recognized that the State provision approved at the Constitutional Convention of 1938 and adopted by the electorate that same year, was designed simply to “ ‘embodty] in our Constitution the provisions of the Federal Constitution which are already binding upon our State and its agencies’ ” (id., at p 530 [quoting from 2 Rev Record of NY State Constitutional Convention, 1938, at 1065]). The dissent’s reliance on Sharrock v Dell Buick-Cadillac (45 NY2d 152) is misplaced, as that case concerned the interpretation of the due process clause in the State Constitution (art I, § 6), a provision enacted prior to, and containing language materially different from, its counterpart in the 14th Amendment, and thus readily supporting a broader interpretation than the Federal provision. Accordingly, we need only analyze the equal protection issue under the framework of the 14th Amendment.

      . Matter of Ester v Walters (56 NY2d 306), cited by the majority, dealt with the substantive scope of the protection against discrimination provided by the State Constitution, not with what constitutes State action.

      . Article I, § 11, provides that, “No person shall be denied the equal protection of the laws of this state or any subdivision thereof.” Similarly, article I, § 6, states that, “No person shall be deprived of life, liberty or property without due process of law.” In contrast, the 14th Amendment is explicitly phrased in terms of State action: “nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

      . Despite claims by some of the plaintiffs that the Executive Order and its implementing regulations apply to all work, public or private, by city contractors, the scope of the coverage is explained by the following statement from the Director of the City Bureau of Labor Services: “It is true that section 50.20(A) of the Regulations makes the non-discrimination requirement applicable to ‘[a]ll contractors doing business with the City without regard to the dollar amount or source of funding.’ However, the phrase ‘without regard to the dollar amount or source of funding’ was inserted not to expand the nondiscrimination requirement so as to cover programs wholly unrelated to City contract work but rather to clarify that the non-discrimination requirement is fully applicable to programs that the City funds only in part as well as to programs that the City contracts for but does not fund (e.g., City contracts using federal funds). The reference in section 50.20(B) to ‘[Contractors whose contracts are funded in whole or in part by federal or state funds’ likewise refers to contracts administered by and formally let by the City.”


source: Caselaw Access Project

author: Meyer, J.

license: Public Domain

text:
    State Farm Fire and Casualty Company, Respondent, v Argeo LiMauro, as Administrator of the Estate of Maureen LiMauro, Deceased, et al., Respondents, and Aetna Casualty and Surety Company, Appellant.
    Argued May 30, 1985;
    decided July 2, 1985
    POINTS OF COUNSEL

      Michael Majewski, Salvatore A. Mazzoni and Joseph D. Ahearn for appellant.
    I. The numerous errors in interpretation, reason and logic in the opinion of the court below demand that the declaratory judgment entered in Special Term be reinstated. (Federal Ins. Co. v Atlantic Natl. Ins. Co., 25 NY2d 71; Lumbermens Mut. Cas. Co. v Allstate Ins. Co., 51 NY2d 651; Jefferson Ins. Co. v Glens Falls Ins. Co., 88 AD2d 925; Newin Corp. v Hartford Acc. & Indem. Co., 62 NY2d 916.) II. Completely refuting the court below’s reliance on out-of-State cases is this court’s decision in Kansas City Fire & Mar. Ins. Co. v Hartford Ins. Group (57 NY2d 920). There, this court held that a primary policy which became excess by virtue of a “substitute auto coverage” would be considered excess to the same effect as the strictly excess policy issued by Jefferson Insurance.

      Martin S. Rothman, Mark S. Silberglitt and Alyne I. Diamond for State Farm Fire and Casualty Company, respondent.
    I. Analysis of State Farm Fire’s policy not only in terms of the actual language used in its “other insurance” clause which does not cancel out Aetna’s “other insurance” clause, but also in terms of a “functional analysis” of its language, object, structure and over-all insurance design — compellingly supports the conclusion that State Farm Fire’s umbrella policy could only be summoned to contribute upon the exhaustion of Aetna’s primary policy which became excess solely because of its escape clause. (Lumbermens Mut. Cas. Co. v Allstate Ins. Co., 51 NY2d 651; Public Serv. Mut. Ins. Co. v Fireman’s Fund Am. Ins. Cos., 55 NY2d 868; Kansas City Fire & Mar. Ins. Co. v Hartford Ins. Group, 57 NY2d 920; Federal Ins. Co. v Atlantic Natl. Ins. Co., 25 NY2d 71; Atlantic Mut. Ins. Co. v Atlantic Natl. Ins. Co., 38 AD2d 517, 33 NY2d 817; Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co., 45 NY2d 551; Allstate Ins. Co. v Employers Liab. Assur. Corp., 445 F2d 1278; Michigan Chem. Corp. v American Home Assur. Co., 728 F2d 374; Berkeley v Fireman’s Fund Ins. Co., 407 F Supp 960.) II. Settled principles mandate that under the facts at bar, Florida law, which is completely in accord with New York law and the decision of the court below, should apply, to wit: that only upon exhaustion of Aetna’s policy should State Farm Fire’s policy be summoned into effect. (New Amsterdam Cas. Co. v Stecker, 3 NY2d 1; Aetna Cas. & Sur. Co. v Merchants Mut. Ins. Co., 78 AD2d 176; Telaro v Telaro, 25 NY2d 433; Sega v State of New York, 60 NY2d 183.) III. The courts of a vast number of jurisdictions overwhelmingly support the position of State Farm Fire, that its umbrella policy provides coverage of last resort and can be summoned into effect only upon exhaustion of Aetna’s policy. (Allstate Ins. Co. v Employers Liab. Assur. Corp., 445 F2d 1278; Aetna Ins. Co. v State Auto. Mut. Ins. Co., 268 F Supp 1278.)
   OPINION OF THE COURT

Meyer, J.

An umbrella policy, which covers multiple risks but offers no primary coverage as to any of them and provides that it “shall be in excess of, and shall not contribute with” other collectible insurance covering a loss available to the insured, except such as in excess of the limits of the umbrella policy, is not required to contribute toward a loss until the limits of a liability policy covering the injury-causing automobile as a nonowned vehicle have been exhausted. Although the latter policy’s “other insurance” provision makes it excess over other insurance on the injury-causing vehicle, that provision is ineffective as to the umbrella policy. The order of the Appellate Division should, therefore, be affirmed, with costs.

I

As a result of a collision between an automobile owned by Gatillo LiMauro and operated by Vincent Navarro and an automobile owned by Kinney Auto Rental Corp. and operated by John Fagan, Maureen LiMauro, a passenger in the LiMauro vehicle was killed and Fagan was injured. Maureen LiMauro’s administrator brought an action for wrongful death against the owners and operators of both vehicles seeking damages of $2,000,000. In a separate personal injury action against Gatillo LiMauro and Vincent Navarro, Fagan claimed damages of $1,000,000.

The issue for determination in the declaratory judgment action out of which this appeal arises is the order of contribution to such judgments as may be obtained in the underlying actions by two of the three carriers whose policies covered the owner and operator of the LiMauro vehicle. State Farm Mutual Automobile Insurance Co. (“Mutual”) issued to Gatillo and Agata LiMauro its “car policy” with limits of $100,000 per person and $300,000 per accident covering their vehicle when operated by them or any other person using their car with, and within the scope of, their consent. Aetna Casualty and Surety Company (“Aetna”) issued to Vincent Navarro its “family automobile policy” with like limits of $100,000 and $300,000, under which Navarro was covered when operating a nonowned automobile. State Farm Fire and Casualty Company (“Fire”), an entity separate from Mutual, issued to Gatillo and Agata LiMauro its “success protector policy” with a liability limit of $1,000,000, covering personal injury or property damage arising out of operation of an automobile, watercraft or aircraft or of business or rental property, and as to the operation of an automobile covered not only the named insured but also any person operating the vehicle with, and within the scope of, the consent of the named insured.

It is not disputed that the LiMauro vehicle was being operated by Navarro with, and within the scope of, the consent of the LiMauros or that Mutual’s policy provides primary coverage. The present action, begun by Fire, asks a declaration that it is not required to contribute until Aetna’s policy limits are exhausted. Aetna argues that its policy is excess over Fire’s or, alternatively, is concurrent with it. Special Term held that both policies covered the injuries for which recovery was sought and should contribute in proportion to their limits. It reasoned that otherwise Fire would be permitted to “escape liability by merely providing for many situations rather than one specific occurrence.” The Appellate Division reversed, concluding that the policies “did not, in fact, cover the same insurable risk” (103 AD2d, at p 519) and that the Aetna policy had to be exhausted before Fire was obligated by its policy to pay. For the reasons hereafter stated, we affirm, though on somewhat different reasoning.

II

The anomaly involved in establishing a pecking order among multiple insurers covering the same risk arises from the fact that although the insurers contract not with each other but separately with one or more persons insured, each attempts by specific limitation upon the rights of its insured to distance itself further from the obligation to pay than have the others. The result has been characterized as “a court’s nightmare * * * filled with circumlocution” (Carriers Ins. Co. v American Home Assur. Co., 512 F2d 360, 362), compared sarcastically to the “struggles which often ensue when guests attempt to pick up the tab for their dinner companions” (Insurance Co. of N. Am. v Continental Cas. Co., 575 F2d 1070, 1071), and produced, it has been said, judicial decisions that are “difficult to interpret and in some instances impossible to reconcile” (United Servs. Auto Assn. v Empire Fire & Mar. Ins. Co., 134 Ariz 64, 65, 653 P2d 712, 713). It has also produced an expression of surprise that the courts, rather than the insurance industry’s arbitration mechanism, are resorted to so frequently to adjudicate the issue (Insurance Co. of N. Am. v Continental Cas. Co., supra, at p 1072; Tobriner, Foreword, Symposium: California Insurance Law, 13 Pac LJ 829,830), and we add our own wonderment that the problem has not long since been dealt with by legislation or Insurance Department regulation.

Case law solutions of the problem have been many and varied, originally requiring exhaustion first of the policy issued first, of the policy insuring the primary tort-feasor, of the policy deemed the more specific, among others, and, more recently, interpretation of the various “excess,” “escape,” “super-excess” and “super-escape” clauses incorporated in different carriers’ policies (Kurtock, Overlapping Liability Coverage “The Other Insurance” Provision, 25 Fedn Ins Counsel Q 45; Mattison, “Other Insurance” Clauses: The Lamb-Weston Doctrine, 47 Ore L Rev 430; Welch, Conflicts Between “Other Insurance” Clauses in Automobile Liability Insurance Policies, 20 Hastings U 1292; Notes: 65 Colum L Rev 319; 38 Minn L Rev 838). As our case law has developed it has rejected as an exercise in “meaningless semantics” the effort to determine which among policies covering the risk which occurred is the more specific (Federal Ins. Co. v Atlantic Natl. Ins. Co., 25 NY2d 71), but recognised the right of each insurer to rely upon the terms of its own contract with its insured (New York Dock Co. v Brown, Inc., 272 NY 176,180; see, Newin Corp. v Hartford Acc. & Indem. Co., 62 NY2d 916, 919; Davis v De Frank, 27 NY2d 924).

In evaluating the effect between carriers of the language of their policies, we have held an owner’s policy providing for pro rata contribution with other valid and collectible insurance to be primary and the driver’s policy containing a nonowned vehicle clause making it excess over other valid and collectible insurance to be secondary, reasoning that the effect of the language of the owner’s policy was “only to require prorata contribution by other primary insurance” (General Acc. Fire & Life Assur. Co. v Piazza, 4 NY2d 659, 669). The contrary result obtained, however, where the owner’s policy contained a “no liability” escape clause which covered a third person driving with the owner’s permission, “but only if no other valid and collectible automobile liability insurance, either primary or excess * * * is available to such person”, the owner’s carrier being freed by that policy clause of any obligation to contribute with the driver’s insurer notwithstanding the nonowned excess clause in the latter policy (Davis v De Frank, 27 NY2d 924, supra). But as to the confrontation between the driver’s policy’s nonowned excess clause and the owner’s policy provision making it excess as to all of its coverage whenever there was any other policy encompassing the loss, we have required pro rata contribution between the carriers (Federal Ins. Co. v Atlantic Natl. Ins. Co., supra). In that situation, both having contracted to cover the same risk on the same level, neither is permitted to argue that the other must bear the entire risk (see, Continental Cas. Co. v Equitable Life Assur. Socy., 52 NY2d 228, 233) because the effect of a contrary holding would be to leave the insured with no coverage at all (Lumbermens Mut. Cas. Co. v Allstate Ins. Co., 51 NY2d 651; Federal Ins. Co. v Atlantic Natl. Ins. Co., supra). In such a case the excess coverage clauses are deemed to cancel each other out and each carrier is required to contribute ratably in such proportion as its policy limit bears to the total of all policy limits (Lumbermens Mut. Cas. Co. v Allstate Ins. Co., supra; see, Continental Cas. Co. v Equitable Life Assur. Socy., supra).

The latter rule is, however, inapplicable when its use would distort the meaning of the terms of the policies involved (Lumbermens Mut. Cas. Co. v Allstate Ins. Co., supra, at p 655). Whether there will be such distortion turns on consideration of the purpose each policy was intended to serve as evidenced by both its stated coverage and the premium paid for it (id., at pp 656-657), as well as upon the wording of its provision concerning excess insurance (id.; Kansas City Fire & Mar. Ins. Co. v Hartford Ins. Group, 57 NY2d 920).

The Lumbermens case well illustrates the principles, for it involved three layers of coverage. Primary insurance was provided by Allstate to the corporate owner of the injury-causing car. Allstate had also issued to the mother of the driver insurance on her personal car which included coverage of her son while driving a nonowned automobile, but provided as to such coverage that if there was other insurance its nonowned automobile coverage would be “excess insurance over any other collectible insurance.” Allstate had also issued to the driver’s father an executive policy covering “net loss in excess of insured’s retained limit”, which listed as part of the retained limit the Allstate policy issued to the driver’s mother, and provided that its coverage was “excess insurance, not contributory to other collectible insurance (other than insurance applying as excess to Allstate’s limit of liability hereunder) available to the Insured” covering the loss. A fourth policy issued by Lumbermens to a business group of which the corporate owner of the car was a member and denominated a “Catastrophe Policy” provided coverage in excess of “any other valid and collectible insurance available to the insured, whether such other insurance is stated to be primary, contributing, excess or contingent.” We held that the Allstate policy issued to the driver’s mother was excess to the corporate owner’s primary insurance but did not contribute ratably with the executive policy issued to the driver’s father because the specific reference in that policy to the mother’s policy as part of the retained limits made clear the intention of the parties that the executive policy not contribute until the mother’s policy had been exhausted.

The Lumbermens policy was, however, held to be excess to all three Allstate policies because its provision that its coverage was in excess of all other coverage available, including excess coverage, established that the parties to that policy had not bargained for ratable contribution with any of the Allstate policies, because the language of the Allstate executive policy recognized that there could be coverage in excess of its coverage and because to require Lumbermens to contribute ratably with Allstate’s excess coverage would make it difficult if not impossible for an insurance purchaser to obtain final tier (or, as it is referred to in the industry, “umbrella”) coverage at a premium reduced to reflect the lesser risk to the insurer.

On like reasoning, in Public Serv. Mut. Ins. Co. v Fireman’s Fund Am. Ins. Cos. (55 NY2d 868, affg 82 AD2d 403), ratable contribution was required between Public Service, the umbrella insurer of the vehicle owner, and INA, the umbrella insurer of the lessee-operator, where the latter’s policy recognized that there could be coverage in excess of its coverage and provided for ratable contribution in that event, and Public Service, although the language of its policy made it excess to any policy, excess or otherwise, unless the other policy stated specifically that it was to be in excess of the Public Service policy, asserted no claim that it was entitled to be held excess to the INA policy. Contribution was also required in Kansas City Fire & Mar. Ins. Co. v Hartford Ins. Group (57 NY2d 920, supra) between the insurer of a bus being used as a temporary substitute automobile, whose policy provided that it was excess over any other valid and collectible insurance, and the excess automobile liability insurer of the bus owner, whose policy provided that it was excess over insurance issued to the owner by a specifically named primary insurer, because neither policy contained language specifically making one an excess insurer over all other excess insurers covering the same risk or the meaning , of which would be distorted by requiring contribution between them.

The rule to be distilled from these cases is that an insurance policy which purports to be excess coverage but contemplates contribution with other excess policies or does not by the language used negate that possibility must contribute ratably with a similar policy, but must be exhausted before a policy which expressly negates contribution with other carriers, or otherwise manifests that it is intended to be excess over other excess policies (Aetna Cas. & Sur. Co. v Liberty Mut. Ins. Co., 91 AD2d 317; see, Jefferson Ins. Co. v Glens Falls Ins. Co., 88 AD2d 925). Indicative of such an intent, though not conclusive, may be the fact that a policy is issued as “umbrella” or “catastrophe” coverage, at rates which reflect the reduced risk insured (Lumbermens Mut. Cas. Co. v Allstate Ins. Co., supra; Chicago Ins. Co. v Dominguez, 420 So 2d 882, 884, review denied sub nom. Associated Insurers v Chicago Ins. Co., 430 So 2d 450 [Fla]; see, Trinity Universal Ins. Co. v Metzger, 360 So 2d 960, 962 [Ala]).

Ill

Tested against the foregoing rules, the result reached by the Appellate Division is clearly correct. The Aetna policy was issued as a family automobile policy with specified per-person and per-occurrence limits. Except as to a nonowned or temporary substitute automobile it was primary coverage, as its “other insurance” clause made clear: “If the Insured has other insurance against a loss covered by the Liability Coverage of this policy the Company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance over any other valid and collectible insurance.” The juxtaposition in that clause of provision for pro rata contribution with all insurance except as to a nonowned automobile strongly suggests that what Aetna sought to achieve was an excess position with respect to other primary insurance covering the nonowned vehicle, rather than an intention to place itself on an equal or better footing with all other insurance excess to the primary insurance.

The Fire policy, on the other hand, offered no primary coverage at all. Sold under the fanciful name of a “success protector policy,” covering not only automobile risks but risks of many other types, it provided only coverage “in excess of the retained limit,” which it defined, in pertinent part, as “the total limit(s) of liability of any underlying insurance collectible by the Insured,” and required that underlying insurance be maintained in minimum amounts of $100,000/$300,000 for automobile or recreational vehicle liability and $100,000 for comprehensive personal liability and apartment liability. It also contained an “other insurance” clause reading: “If other collectible insurance with any other insurer is available to the Insured covering a loss also covered hereunder (except insurance purchased to apply in excess of the sum of the Retained Limit — Coverage L and the limit of liability hereunder), the insurance hereunder shall be in excess of, and shall not contribute with, such other insurance.” By specifically providing that as to a loss covered by it and by other insurance it was to be excess over, and not contribute with, the other insurance “except insurance purchased to apply in excess of the sum of the Retained Limit * * * and the limit of liability hereunder” (that is, to apply in excess of $1,100,000 per person or $1,300,000 per occurrence), the Fire policy negated any intention to contribute with other policies except such as were purchased as excess over its excess insurance, which the Aetna policy clearly was not. Although Aetna’s clause provides that it shall be excess over “any other valid and collectible insurance,” the intent and effect of the Fire policy provision is that it is collectible with respect to a loss in excess of its $100,000/$300,000 retained limit if other insurance is not available to cover the loss, but to the extent that other insurance is available and has not been purchased as excess over its $1,100,000/$1,300,000 limits, it shall not be required to contribute ratably and, therefore, is not “collectible” (cf. Michigan Alkali Co. v Bankers Indent. Ins. Co., 103 F2d 345, 347; State Farm Mut. Auto. Ins. Co. v Universal Atlas Cement Co., 406 So 2d 1184,1187, review denied 413 So 2d 877 [Fla]; see, Davis v De Frank, 27 NY2d 924, supra; Aetna Ins. Co. v State Auto. Mut. Ins. Co., 368 F Supp 1278, 1282).

While we agree with the Appellate Division that Fire cannot be required to contribute to payment of any judgment obtained in the LiMauro and Fagan actions until the limits of both Mutual’s and Aetna’s policies have been exhausted, we reach that conclusion not on the basis that Fire’s policy speaks of “ultimate net loss” (103 AD2d, at p 521) or that the two policies did not “cover the same insurable risk” (id., at p 519). Rather, we conclude that while they covered the same risk, they covered it at different levels because Fire’s “other insurance” clause limited its contribution obligation to insurance purchased to apply in excess of Fire’s own limits, and Aetna’s “other insurance” clause, essentially a pro rata provision, limited its otherwise primary coverage only by the nonowned excess provision, which was not purchased to apply in excess of Fire’s limits. Supportive of that conclusion also are the purposes for which the policies were issued (Aetna’s policy being essentially primary coverage for a specific automobile with incidental excess coverage for a nonowned automobile, and Fire’s policy providing only excess coverage for a number of different liability-causing situations), and the premium structure of the two types of coverage (Fire’s success protector premium of $144 for $1,000,000 coverage, as compared with the $119 premium for automobile coverage with $100,000/$300,000 limits, indicating that Fire intended to insure at a lesser level of risk than did Aetna).

Nor can we attach significance to Aetna’s arguments based upon the absence from Fire’s “other insurance” clause of the words “whether * * * stated to be primary, contributing, excess or contingent” which were contained in the Lumbermens catastrophe policy, or the fact that Aetna’s policy was not listed by Fire as an “underlying policy,” whereas in the Lumbermens case the listing of the second Allstate policy as “underlying” in the third “executive” Allstate policy was the basis for holding the third policy excess over the second. As to the first argument, it is sufficient to quote from Insurance Co. of N. Am. v Continental Cas. Co. (575 F2d 1070,1073-1074, supra): “The phrase ‘whether primary, excess or contingent’ does not add anything to the all inclusive ‘other valid’ phrase * * * The super-escape phraseology may be more specific, but its listing of other coverage still falls within the ambit of the very broad phrase ‘other valid’ insurance.” As to the second, the short answer is that while the scheduling of an underlying policy may be indicative of an intent that the policy in which it is scheduled is to be excess over the scheduled policy, the converse is not true. Nor would there be logic to giving scheduling any significance in relation to a policy such as Aetna’s containing a nonowned vehicle clause, which turns on who, other than the policyholder or a relative resident in the same household, is driving the car at the time of the accident and what insurance coverage is available to him or her, facts which could not have been known at the time the policy claimed to be excess was issued.

It is necessary only to add that the conclusion we reach accords with case law in other State and Federal courts, subordinating a policy issued as primary automobile insurance but applicable to a particular loss only because of its nonowned “excess” coverage to a catastrophe or umbrella policy covering many different types of risk, none of them, however, on a primary basis (United Servs. Auto Assn. v Empire Fire & Mar. Ins. Co., 134 Ariz 64, 653 P2d 712, supra; Otter v General Ins. Co., 34 Cal App 3d 940,109 Cal Rptr 831; State Farm Mut. Auto. Ins. Co. v Universal Atlas Cement Co., 406 So 2d 1184, review denied 413 So 2d 877 [Fla], supra; Aetna Cas. & Sur. Co. v Beame, 385 So 2d 1087 [Fla]; Jensen v New Amsterdam Ins. Co., 65 Ill App 2d 407, 213 NE2d 141; United States Fire Ins. Co. v Maryland Cas. Co., 52 Md App 269, 447 A2d 896; Prudential Prop. & Cas. Ins. Co. v New Hampshire Ins. Co., 164 NJ Super 184, 395 A2d 923; Safeco Ins. Co. v Insurance Co. of N. Am., 522 SW2d 867 [Tenn]; Liberty Mut. Ins. Co. v United States Fire Ins. Co., 590 SW2d 783 [Tex], writ of error refused; Allstate Ins. Co. v Employers Liab. Assur. Corp., 445 F2d 1278; Berkeley v Fireman’s Fund Ins. Co., 407 F Supp 960; Aetna Ins. Co. v State Auto. Mut. Ins. Co., 368 F Supp 1278, supra).

For the foregoing reasons, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Wachtler and Judges Jasen, Simons, Kaye, Alexander and Boomer concur; Judge Titone taking no part.

Order affirmed, with costs.

      . See, e.g., Conn Gen Stat Ann § 38-282; S Dak Cod Laws § 58-23-4; Virginia Code § 38.1-381(a3).

      . It is the language of Fire’s “other insurance” clause that distinguishes this case from Jefferson Ins. Co. v Glens Falls Ins. Co. (88 AD2d 925). In that case the Jefferson policy contained no “other insurance” clause although it referred to “other insurance” in its ultimate net loss provision (88 AD2d, at p 926). That reference was held equivalent to Glens Falls’ other insurance clause and, both being excess and neither being excess over excess, ratable contribution was required. Here the intent that Fire’s policy be excess over Aetna’s nonowned excess coverage turns not on Fire’s ultimate net loss clause but on the “other insurance” provision quoted in the test for the reasons there set forth. Compare the similar “other insurance” provision in the third Allstate policy involved in Lumbermens Mut. Cas. Co. v Allstate Ins. Co. (51 NY2d 651), which on the basis of that provision held that policy to be excess over the second Allstate policy issued to the driver’s mother (51 NY2d, at p 655). See also, Public Serv. Mut. Ins. Co. v Fireman’s Fund Am. Ins. Cos. (82 AD2d 403, affd 55 NY2d 868), in which the Public Service policy contained a similar clause (see, 82 AD2d, at p 406).

      . Aetna’s declaration sheet is not in the record, but presumably its premium for $100,000/$300,000 automobile coverage is comparable to Mutual’s, the $119 figure in the text being Mutual’s premium for primary automobile insurance with such limits.