author: Pigott, J.

text:
    [993 NE2d 393, 970 NYS2d 907]
    Greater New York Taxi Association et al., Respondents, v State of New York et al., Appellants, and Livery Base Owners Inc. et al., Intervenors-Appellants. Taxicab Service Association et al., Respondents, v State of New York et al., Appellants, and Livery Base Owners Inc., et al., Intervenors-Appellants. Metropolitan Taxicab Board of Trade et al., Respondents, and The Livery Roundtable, Inc., et al., IntervenorsRespondents, v Michael R. Bloomberg, as Mayor of the City of New York, et al., Appellants, and Livery Base Owners Inc., et al., Intervenors-Appellants.
    Argued and submitted April 24, 2013;
    decided June 6, 2013

      POINTS OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Scott Shorr, Leonard J. Koerner and Francis F. Caputo of counsel), for Michael R. Bloomberg and others, appellants in the first, second and third above-entitled actions.
    I. Because the HAIL Act furthers, and bears a direct and reasonable relationship to, the State’s substantial concern with New York City’s for-hire transportation system, the Act did not require a home rule message. (Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 97 NY2d 378; Adler v Deegan, 251 NY 467; Hotel Dorset Co. v Trust for Cultural Resources of City of N.Y.,
      46 NY2d 358; City of New York v State of New York, 94 NY2d 577; Matter of Kelley v McGee, 57 NY2d 522; Bugeja v City of New York, 24 AD2d 151, 17 NY2d 606; Wambat Realty Corp. v State of New York, 41 NY2d 490; People v Grant, 306 NY 258; New York State Pub. Empls. Fedn., AFL-CIO v City of Albany, 72 NY2d 96; City of New York v Rice, 198 NY 124.) II. Because the HAIL Act involves a substantial state interest, the state constitution did not require double enactment. (Wambat Realty Corp. v State of New York, 41 NY2d 490; Floyd v New York State Urban Dev. Corp., 33 NY2d 1.) III. The HAIL Act does not grant for-hire vehicle drivers, owners or base stations unconstitutional exclusive privileges. (Consumers Union of U.S., Inc. v State of New York, 5 NY3d 327; Matter of Union Ferry Co. of Brooklyn, 98 NY 139; City of Rochester v Gutberlett, 211 NY 309; Matter of New York El. R.R. Co., 70 NY 327; Matter of Corning v Donohue, 37 AD2d 213, 29 NY2d 209; Fox v Mohawk & Hudson Riv. Humane Socy., 165 NY 517; American Consumer Indus. v City of New York, 28 AD2d 38; Hotel Dorset Co. v Trust for Cultural Resources of City of N.Y., 46 NY2d 358; Trustees of Exempt Firemen’s Benevolent Fund of City of N.Y. v Roome, 93 NY 313; People v Griswold, 213 NY 92.)

      Eric T. Schneiderman, Attorney General, New York City (Richard Dearing, Barbara D. Underwood, Andrew W. Amend and Claude S. Platton of counsel), for State of New York and others, appellants in the first and second above-entitled actions and intervenor-appellant in the third above-entitled action.
    I. The legislature acted well within its constitutional authority in ensuring access to safe and reliable transportation for millions of New York City residents and visitors. (Wambat Realty Corp. v State of New York, 41 NY2d 490; People v De Jesus, 54 NY2d 465; Matter of Town of Islip v Cuomo, 64 NY2d 50; Matter of Kelley v McGee, 57 NY2d 522; Hotel Dorset Co. v Trust for Cultural Resources of City of N.Y., 46 NY2d 358; Adler v Deegan, 251 NY 467; City of New York v State of New York, 67 Misc 2d 513, 31 NY2d 804; New York Steam Corp. v City of New York, 268 NY 137; Bugeja v City of New York, 24 AD2d 151, 17 NY2d 606; Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 97 NY2d 378.) II. The HAIL Act does not give present holders of livery licenses a monopoly prohibited by the Exclusive Privileges Clause. (Consumers Union of U.S., Inc. v State of New York, 5 NY3d 327; Matter of Union Ferry Co. of Brooklyn, 98 NY 139; Trustees of Exempt Firemen’s Benevolent Fund of City of N.Y. v Roome, 93 NY 313; Fox v Mohawk & Hudson Riv. Humane Socy., 165 NY 517; 19th St. Assoc. v State of New York,
      172 AD2d 380, 79 NY2d 434; Matter of New York El. R.R. Co., 70 NY 327; Hotel Dorset Co. v Trust for Cultural Resources of City of N.Y., 46 NY2d 358; People v Knox, 12 NY3d 60; City of Rochester v Gutberlett, 211 NY 309.)

      Greenberg Traurig, LLP, New York City (Stephen L. Saxl, Israel Rubin and Ryan F. Harsch of counsel), for Livery Base Owners Inc. and another, intervenors-appellants in the first, second and third above-entitled actions.
    I. Because the state legislature enacted the Street Hail Livery Law in furtherance of the substantial state interest in New York City’s for-hire transportation system, and the Act bears a direct and reasonable relationship to that substantial state interest, the Act did not require a home rule message. (Adler v Deegan, 251 NY 467; Wambat Realty Corp. v State of New York, 41 NY2d 490; Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 97 NY2d 378; City of New York v State of New York, 94 NY2d 577; City of New York v State of New York, 67 Misc 2d 513, 31 NY2d 804; Uniformed Firefighters Assn. v City of New York, 50 NY2d 85; Matter of Town of lslip v Cuomo, 64 NY2d 50; Robertson v Zimmermann, 268 NY 52; Bugeja v City of New York, 24 AD2d 151, 17 NY2d 606; City of New York v Patrolmen’s Benevolent Assn. of City of N.Y., 89 NY2d 380.) II. Because the Street Hail Livery Law involves a substantial state interest, the state constitution did not require double enactment. (Wambat Realty Corp. v State of New York, 41 NY2d 490.) III. The Street Hail Livery Law does not grant unconstitutional exclusive privileges to livery drivers or owners. (Matter of Union Ferry Co. of Brooklyn, 98 NY 139; Fox v Mohawk & Hudson Riv. Humane Socy., 165 NY 517; American Consumer Indus. v City of New York, 28 AD2d 38; Consumers Union of U.S., Inc. v State of New York, 5 NY3d 327; City of Rochester v Gutberlett, 211 NY 309.)

      Mintz & Gold LLP, New York City (Steven G. Mintz and Lisabeth Harrison of counsel), for respondents in the first above-entitled action.
    I. The HAIL Act violates the Home Rule Clause of the state constitution. (City of New York v State of New York, 94 NY2d 577; Wambat Realty Corp. v State of New York, 41 NY2d 490; City of New York v Patrolmen’s Benevolent Assn. of City of N.Y., 89 NY2d 380; Adler v Deegan, 251 NY 467; Matter of New York El. R.R. Co., 70 NY 327; Newell v People, 7 NY 9; Matter of Osborn v Cohen, 272 NY 55; Matter of Town of lslip v Cuomo, 64 NY2d 50; New York Steam Corp. v City of New York, 268 NY 137; Bugeja v City of New York, 24 AD2d 151, 17 NY2d 606.) II. The HAIL Act violates the Double Enactment Clause of the state constitution. (Wambat Realty Corp. v State of New York, 41 NY2d 490; Floyd v New York State Urban Dev. Corp., 33 NY2d 1; People v Rathbone, 145 NY 434; Newell v People, 7 NY 9.) III. The HAIL Act violates the Exclusive Privileges Clause of the state constitution. (Wambat Realty Corp. v State of New York, 41 NY2d 490; 19th St. Assoc. v State of New York, 79 NY2d 434.)

      Gibson, Dunn & Crutcher LLP, New York City (Randy M. Mastro, Akiva Shapiro, Paul Kremer and Seth Rokosky of counsel), for respondents in the second above-entitled action.
    I. The State does not have a substantial interest in private transportation in New York City; and there are no other substantial state interests advanced by the HAIL Act. (City of New York v Patrolmen’s Benevolent Assn. of City of N.Y., 89 NY2d 380; Adler v Deegan, 251 NY 467; Matter of McAneny v Board of Estimate & Apportionment of City of N.Y., 232 NY 377; Matter of Osborn v Cohen, 272 NY 55; Admiral Realty Co. v City of New York, 206 NY 110; Salzman v Impellitteri, 203 Misc 486, 305 NY 414; Noel v New York City Taxi & Limousine Commn., 687 F3d 63; Freidman v General Motors Corp., 721 F Supp 2d 218; Matter of Rudack v Valentine, 163 Misc 326; Robertson v Zimmermann, 268 NY 52.) II. There is no “reasonable relationship” between the HAIL Act and the interests it allegedly advances. (City of New York v Patrolmen’s Benevolent Assn. of City of N.Y., 89 NY2d 380; Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 97 NY2d 378; City of New York v Village of Lawrence, 250 NY 429; Adler v Deegan, 251 NY 467; New York Steam Corp. v City of New York, 268 NY 137; Bugeja v City of New York, 24 AD2d 151; Robertson v Zimmermann, 268 NY 52; Metropolitan Transp. Auth. v County of Nassau, 28 NY2d 385; City of New York v State of New York, 31 NY2d 804; Wambat Realty Corp. v State of New York, 41 NY2d 490.)

      Emery Celli Brinckerhoff & Abady LLP, New York City (Richard D. Emery of counsel), for respondents in the third above-entitled action.
    I. The HAIL Act is an unconstitutional infringement on New York City’s power of home rule. (Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 97 NY2d 378; City of New York v Patrolmen’s Benevolent Assn. of City of N.Y., 89 NY2d 380; Baldwin v City of Buffalo, 6 NY2d 168; Matter of Mayor of City of N.Y., 246 NY 72; Adler v Deegan, 251 NY 467; Matter of Osborn v Cohen, 272 NY 55; Matter of Torsoe Bros. Constr. Corp. v Board of Trustees of Inc. Vil. of Monroe, 49 AD2d 461; Suffolk County Bldrs. Assn. v County of Suffolk, 46 NY2d 613; Matter of United States Steel Corp. v Gerosa, 7 NY2d 454; City of New York v Village of Lawrence, 250 NY 429.) II. The HAIL Act violates the Exclusive Privileges Clause of the state constitution. (19th St. Assoc. v State of New York, 172 AD2d 380, 79 NY2d 434; Consumers Union of U.S., Inc. v State of New York, 5 NY3d 327; Matter of Henneberger, 155 NY 420; Fox v Mohawk & Hudson Riv. Humane Socy., 165 NY 517; Matter of New York El. R.R. Co., 70 NY 327; Matter of Union Ferry Co. of Brooklyn, 98 NY 139; People v Griswold, 213 NY 92; City of Rochester v Gutberlett, 211 NY 309; Matter of Corning v Donohue, 37 AD2d 213, 29 NY2d 209; City of New York v Patrolmen’s Benevolent Assn. of City of N.Y., 89 NY2d 380.)

      The Shanker Law Firm, P.C., New York City (Steven J. Shanker of counsel), and Davis Wright Tremaine LLP (Robert Balin of counsel) for intervenors-respondents in the third above-entitled action.
    The HAIL Act is an unconstitutional intrusion into local government affairs in violation of home rule. (Baldwin v City of Buffalo, 6 NY2d 168; Adler v Deegan, 251 NY 467; City of New York v Patrolmen’s Benevolent Assn. of City of N.Y., 89 NY2d 380; Matter of Mayor of City of N.Y., 246 NY 72; City of New York v Village of Lawrence, 250 NY 429; Hotel Dorset Co. v Trust for Cultural Resources of City of N.Y., 63 AD2d 157, 46 NY2d 358.)

      Office of the Manhattan Borough President, New York City (Andrew L. Kalloch of counsel), for Manhattan Borough President Scott M. Stringer in the first, second and third above-entitled actions, amicus curiae.
    I. The constitutional history of home rule in New York shows that while municipal governments exercise control over purely local affairs, the state retains plenary authority over issues of statewide concern. (Hunter v Pittsburgh, 207 US 161; Adler v Deegan, 251 NY 467; Robertson v Zimmermann, 268 NY 52; Berenson v Town of New Castle, 38 NY2d 102.) II. Transportation in the City of New York and its surrounding counties is clearly a matter of substantial state concern. (Giuliani v Council of City of N.Y., 181 Misc 2d 830; Matter of New York City Comm. for Taxi Safety v New York City Taxi & Limousine Commn., 256 AD2d 136; People v Kerr, 27 NY 188; City of New York v State of New York, 94 NY2d 577; Whelan v Wagner, 4 NY2d 575; Morin v Foster, 45 NY2d 287.) III. New York City exercises considerable control over the implementation of the HAIL Act. (New York Steam Corp. v City of New York, 268 NY 137; Sonmax, Inc. v City of New York, 43 NY2d 253.) IV. The HAIL Act will fundamentally transform taxi service in northern Manhattan, the Bronx, Queens, Brooklyn, and Staten Island, and will vastly improve accessibility in the New York City metropolitan area. (Noel v New York City Taxi & Limousine Commn., 687 F3d 63.) V. Courts have historically shown due deference toward the legislature. (City of New York v State of New York, 76 NY2d 479; Matter of Board of Supervisors of Ontario County v Water Power & Control Commn., 227 App Div 345, 255 NY 531; Robertson v Zimmermann, 268 NY 52; Elmwood-Utica Houses v Buffalo Sewer Auth., 65 NY2d 489; Matter of Taylor v Sise, 33 NY2d 357.)
   OPINION OF THE COURT

Pigott, J.

At issue on this appeal is the constitutionality of chapter 602 of the Laws of 2011, as amended by chapter 9 of the Laws of 2012 (“HAIL Act”), which regulates medallion taxicabs (or “yellow cabs”) and livery vehicles, vital parts of New York City’s transportation system. The Act’s stated aim is to address certain mobility deficiencies in the City of New York, namely: the lack of accessible vehicles for residents and nonresidents with disabilities; the dearth of available yellow cabs in the four boroughs outside Manhattan (“outer boroughs”), where residents and nonresidents must instead rely on livery vehicles; and the sparse availability of yellow cab service outside Manhattan’s central business district and the two Queens airports, locations where close to 95% of yellow cabs pick up their customers (see Sponsor’s Mem, Bill Jacket, L 2012, ch 9).

I

Because the HAIL Act arguably affects the yellow cab and livery vehicle enterprises in significant ways, we first address the traditional distinctions between them before addressing the substance of the Act itself. Both enterprises are regulated by the Taxi and Limousine Commission (TLC), but are subject to different rules of operation.

Yellow cabs operate under a transferable license or medallion, which is a numbered plate issued by the TLC that is affixed to the outside of a taxicab as physical evidence that the taxicab has been licensed to operate as a medallion taxicab (see 35 RCNY 51-03). These cabs are metered vehicles that must charge uniform rates (see Administrative Code of City of NY §§ 19-502 [k]-[l]; 19-514 [a]; 35 RCNY 58-38). They possess the exclusive right to pick up passengers pursuant to street “hails” from any location in the City (see Administrative Code of City of NY § 19-504 [a] [1]).

In 1956, the New York State Legislature delegated to the City Council the discretionary authority to register, license and limit the number of yellow cabs, and to establish ordinances and regulations regulating parking and passenger pick-up and discharges (see General Municipal Law § 181 [1], [2]; see also NY City Charter § 2303 [b] [4]). Prior to 1996, the City Council had capped the number of medallions that the TLC was permitted to issue at 11,787. Between 1996 and 2008, the City Council approved the issuance of 1,450 additional medallions, resulting in a total of 13,237. Given the limited supply of medallions, their value has increased yearly and the competition for obtaining one is fierce. Moreover, according to the TLC, out of the 13,237 issued medallions, only 231 are cabs that are accessible to people with disabilities.

In contrast to yellow cabs, livery vehicles are prohibited from picking up street hails and may accept passengers only on the basis of telephone contract or other prearrangement (see Administrative Code of City of NY § 19-507 [a] [4]). The livery client contacts a “base station” that dispatches a livery vehicle to the requested location (Administrative Code of City of NY § 19-511). However, this has not prevented some livery vehicles from illegally accepting street hails, where the price of the fare is not regulated. As with yellow cabs, a substantial number of livery vehicles are ill-equipped to provide service to persons with disabilities.

II

Enacted by the New York State Legislature in the latter part of 2011 and the early part of 2012, the HAIL Act creates, among other things, a “HAIL License Program” that calls for the TLC to issue 18,000 “Hail Accessible Inter-borough Licenses” allowing “for-hire vehicles,” i.e., livery vehicles, to accept street hails in the outer boroughs and those areas in Manhattan outside its central business district (HAIL Act §§ 4 [b]; 5 [a]). TLC-licensed yellow cabs retain “the exclusive right... to pick up passengers via street hail in such areas of the city of New York wherein HAIL license holders are prohibited from accepting such passengers” (id. § 11). The Act demarcates these areas—Manhattan’s central business district and the two Queens airports—as the “HAIL Exclusionary Zone” (id. § 4 [c]).

Livery vehicles without a HAIL license are permitted to accept prearranged calls from a base station established pursuant to New York City Administrative Code § 19-511 inside the HAIL Exclusionary Zone, while livery vehicles possessing a HAIL license may accept prearranged calls outside the HAIL Exclusionary Zone and at airports (id. § 5 [f]). HAIL vehicles, however, may not accept prearranged calls within the HAIL Exclusionary Zone (id. § 4 [c]). Drivers with a valid HAIL license who accept street hails in areas where such vehicles are not permitted to do so are subject to various penalties (id. §§ 25, 26; see Administrative Code of City of NY § 19-506 [k], [1]).

The Act calls for HAIL licenses to be distributed in increments of 6,000 over three years, with 20% of the first 6,000 earmarked for accessible vehicles (id. § 5 [b]). Subject to a “HAIL market analysis,” which the TLC must prepare and submit to the City Council and the New York State Department of Transportation “examining HAIL vehicle rider demand, shortages and the need for adequate and affordable transportation” (id. § 6), the TLC may issue up to 6,000 HAIL licenses in the second and third years (“second issuance” and “third issuance,” respectively) (id. § 5 [b]). The second and third issuances are likewise subject to the 20% accessibility requirement unless the TLC, having conducted a study and issued a report relative to “the accessibility of vehicles with HAIL licenses in the Disabled Accessibility Plan,” recommends a different percentage (id.; see HAIL Act § 10). HAIL licenses issued during the first, second and third years will cost $1,500, $3,000 and $4,500, respectively (id. § 5 [d]).

In order to introduce accessible vehicles into the HAIL vehicle fleet, the TLC must launch a program that provides “grants to purchasers of HAIL licenses restricted to accessible vehicles as provided in [HAIL Act § 9 (b)]” or provide “vehicles to purchasers of HAIL licenses restricted to accessible vehicles on affordable and financially feasible terms” (HAIL Act § 9 [a] [i], [ii]). HAIL Act § 9 (b) provides that “[purchasers of hail licenses restricted to accessible vehicles . . . shall be eligible to apply for grants” of up to $15,000 to apply toward either the purchase of “an accessible vehicle for use as a HAIL vehicle” or toward “retrofitting a vehicle to be an accessible vehicle,” with the total amount of such grants not to exceed $54 million.

As it relates to yellow cabs, the Act creates an “Accessible Taxicab Program,” which allows the Mayor to administratively authorize the TLC to issue by public sale up to 2,000 taxicab licenses (or medallions) that are restricted to vehicles designated for the purpose of transporting persons in wheelchairs or containing a physical device or alteration designed to permit access to and enable the transportation of persons in wheelchairs in accordance with the Americans with Disabilities Act (see HAIL Act § 8). The Act states that not more than 400 of such licenses may be issued until the Disabled Accessibility Plan is approved by the New York State Department of Transportation. Moreover, the Mayor’s authority to issue these licenses is conditioned upon the TLC making both the HAIL licenses in section 5 of the Act and the “hail privilege vehicle permits” authorized pursuant to section 4 of chapter 602 of the Laws of 2011 available for issuance. These new accessible taxicabs will possess the exclusive right to pick up passengers via street hail from any location within the city of New York where HAIL license holders are prohibited from accepting such passengers (id. § 11).

Finally, as relevant here, the Act contains what has been termed a “poison pill.” It “shall be construed as a whole, and all parts of it shall be read and construed together” such that “[i]f any part” of or any amendment made to it by chapter 9 of the Laws of 2012 “shall be adjudged by any court of competent jurisdiction to be invalid, the remainder of [the] act shall be invalidated and shall be deemed to have not taken effect” (L 2011, ch 602, § 6, as amended by L 2012, ch 9, § 3).

III

Plaintiffs, who are medallion owners and their representatives, an association of credit union lenders and credit unions that finance medallion purchases, and a member of the New York City Council, challenge the HAIL Act on the ground that regulation of yellow cab and livery enterprises has always been a matter of local concern. All plaintiffs claim that the Act violates NY Constitution, article IX, § 2 (b) (2) (“Municipal Home Rule Clause”). Certain plaintiffs allege that the Act violates NY Constitution, article IX, § 2 (b) (1) (“Double Enactment Clause”) and NY Constitution, article III, § 17 (“Exclusive Privileges Clause”).

Shortly after the Governor signed the Act, plaintiffs commenced these actions against defendants, all seeking, among other relief, judgments declaring the Act unconstitutional and seeking injunctions against the Act’s implementation. At plaintiffs’ request, Supreme Court issued an order temporarily restraining the State from implementing any section of the Act. The parties moved to either dismiss the complaint or for summary judgment. As relevant here, Supreme Court granted plaintiffs’ motions, entered judgments nullifying the Act, and declaring that it violated the Municipal Home Rule, Double Enactment and Exclusive Privileges Clauses of the New York Constitution (see 2012 NY Slip Op 32221[U] [2012]). These direct appeals are before us on CPLR 5601 (b) constitutional grounds, the parties having stipulated that they would not appeal the nonconstitutional claims decided adversely to them by Supreme Court.

IV

The Municipal Home Rule Clause grants local governments considerable independence relative to local concerns. Just as there are affairs that are exclusively those of the State, “[t]here are some affairs intimately connected with the exercise by the city of its corporate functions, which are city affairs only” (Adler v Deegan, 251 NY 467, 489 [1929, Cardozo, Ch. J., concurring]). Nonetheless, “[a] zone . . . exists . . . where State and city concerns overlap and intermingle” (id.).

Enacted to protect the autonomy of local governments, the Municipal Home Rule Clause allows the legislature to

“act in relation to the property, affairs or government of any local government only by general law, or by special law only (a) on request of two-thirds of the total membership of its legislative body or on request of its chief executive officer concurred in by a majority of such membership” (NY Const, art IX, § 2 [b] [2]).

Subdivision (a)’s directives are commonly referred to as the “home rule message” requirement because whenever a special law is enacted, it should be at the locality’s request.

As plaintiffs point out, the HAIL Act is a special law, i.e., it is a law that “in terms and in effect applies to one or more, but not all . . . cities” (NY Const, art IX, § 3 [d] [4]). Although the Municipal Home Rule Clause could be read to direct that a home rule message was required before the Act’s enactment, there is an exception to that requirement where the State possesses a “substantial interest” in the subject matter and “the enactment . . . bear[s] a reasonable relationship to the legitimate, accompanying substantial State concern” (City of New York v Patrolmen’s Benevolent Assn. of City of N.Y., 89 NY2d 380, 391 [1996] [PBA I]; see Empire State Ch. of Associated Bldrs. & Contrs., Inc. v Smith, 21 NY3d 309 [2013] [decided today]; Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 97 NY2d 378, 386 [2001] [PBA II]). The latter requirement serves “as a corollary to the constitutional balancing of overlapping local and state interests requiring that the ‘subjects of State concern [be] directly and substantially involved’ ” (PBA I, 89 NY2d at 391, quoting Adler, 251 NY at 490).

Plaintiffs challenge the Act on the ground that the State lacks a substantial interest in the regulation of the yellow cab and livery enterprises in the City, claiming that such regulation has historically been within the province of the City itself. Although the State has delegated certain powers to the City Council concerning the regulation of yellow cabs (see General Municipal Law § 181), that does not mean that it has surrendered its authority to regulate in that area, particularly where the proposed regulation promotes a substantial state interest (see e.g. Adler, 251 NY at 488 [Cardozo, Ch. J., concurring] [noting that the power to regulate tenements “was subject in its creation to the overriding action of the State”]).

Our review concerning what constitutes a substantial state interest is not dependent on what historically has been the domain of a given locality. Rather, our determination is dependent on the “stated purpose and legislative history of the act in question” (PBA I, 89 NY2d at 392; see City of New York v State of New York, 94 NY2d 577, 590 [2000] [conducting a substantial state interest analysis of a special law rescinding a state tax on resident commuters by looking at the legislation’s “stated justification” and legislative history]; PBA II, 97 NY2d at 389 [finding a special law constitutional because it expressly stated “the substantial State concern sought to be addressed” and ensured that the law was “rationally related to that concern”]; Matter of Town of Islip v Cuomo, 64 NY2d 50, 53-54 [1984] [reviewing the legislative history of a special law limiting the disposal of solid waste by landfill in Suffolk and Nassau counties]; Matter of Kelley v McGee, 57 NY2d 522, 539-540 [1982] [reviewing legislation concerning salaries of District Attorneys]).

In the cases where we have found a special law to be unconstitutional, we have done so, in part, because the legislation failed to identify a substantial state interest and/or the legislative history did not support the State’s reason for enacting it (see PBA I, 89 NY2d at 392-393 [reviewing legislative history only after recognizing that the legislation failed to “expressly identify any State concern motivating its enactment,” and concluding that the statute bore no reasonable relationship to the state concern asserted during litigation]; Matter of Osborn v Cohen, 272 NY 55, 59 [1936] [finding no “foundation in the record” that the establishment and control of fire departments are matters of state concern]).

We conclude that the HAIL Act addresses a matter of substantial state concern. This is not a purely local issue. Millions of people from within and without the State visit the City annually. Some of these visitors are disabled, and will undoubtably benefit from the increase in accessible vehicles in the Manhattan central business district and in the outer boroughs. The Act is for the benefit of all New Yorkers, and not merely those residing within the City. Efficient transportation service in the State’s largest city and international center of commerce is important to the entire State. The Act plainly furthers all of these significant goals.

Section one of the Act explains “that the public health, safety and welfare of the residents of the state of New York traveling to, from and within the city of New York is a matter of substantial state concern, including access to safe and reliable mass transportation such as taxicabs” (HAIL Act § 1 [emphasis supplied]). The Act is aimed at accommodating able-bodied and disabled residents and nonresidents of the City who “do not currently have sufficient access to legal, licensed taxicabs available for street hails.” Specifically as it relates to residents and nonresidents with disabilities, the legislature concluded that only 1.8% of yellow cabs are accessible, and that an even smaller percentage of the approximately 23,000 livery vehicles are so equipped. The lack of accessible yellow cabs and livery vehicles impacts residents and nonresidents by “inhibiting] their basic daily activities” and preventing them “from being able to rely on the street hail system to get to a destination quickly, particularly in an emergency, or to travel to a location not near a subway or bus stop” (id.). Thus, it cannot be said that the legislature has offered only “speculative assertions” concerning the “possible State-wide implications of the subject matter” (PBA I, 89 NY2d at 391).

Plaintiffs find significance in the fact that in the years between 1996 and 2008 when the New York State Legislature approved the issuance of 1,450 new medallions, it did so only after the City Council issued a home rule message requesting such an increase. However, the fact that the legislature has previously entertained home rule messages in this field “is not determinative of the issue before us—whether such messages were constitutionally required” (City of New York, 94 NY2d at 591 [citation omitted]). Indeed, that the City Council must make a request to the legislature in order to issue and sell new medallions at a market rate only underscores that the State has an interest in the regulation of yellow cab services.

As its sponsor explained, the Act’s purpose is to “allow the City to implement a taxi plan that will more effectively service all five boroughs of New York City and greatly increase the availability of accessible taxicabs and for-hire vehicles” (Sponsor’s Mem, Bill Jacket, L 2012, ch 9). The issues the Act addresses are the lack of yellow cabs within the Manhattan central business district that are accessible to the disabled and the general shortage of available yellow cab and livery vehicle transportation in underserved areas of the city, i.e., outside Manhattan’s central business district and the two airports.

Plaintiffs next assert that the stated reasons for the Act’s enactment must be viewed skeptically because it was not enacted until after negotiations broke down between the Mayor and City Council concerning the increase in taxicab and livery vehicle service in the underserved areas. However, we need not speculate on the legislature’s motives “as a judicial construct for statutory analysis” and, instead, must direct our attention to whether the legislature acted within its constitutional purview in passing the legislation (City of New York, 94 NY2d at 591). To that end, we conclude that the Act addresses a substantial state interest.

That does not end the inquiry, however, because in order to be upheld as constitutional, the Act must “bear a reasonable relationship” to that state concern (PBA I, 89 NY2d at 391). As we explain in Empire State Ch. of Associated Bldrs. & Contrs., Inc., (21 NY3d 309 [2013]), this requirement serves to establish that the legislation does in fact advance the asserted state interest, i.e. that the state interest is bona fide, not merely pretextual (see PBA I at 393). We conclude that a reasonable relationship exists. The Act consists of a series of interlocking provisions to address its stated purposes. The potential issuance of 18,000 HAIL licenses, dispersed in equal amounts over three years, will allow livery vehicles to legally accept street hails from residents and nonresidents in the outer boroughs and in Manhattan outside its central business district. That 20% of the first 6,000 HAIL licenses must be earmarked for accessible vehicles advances the state interest in providing street hail vehicles in those areas for residents and visitors with disabilities. To ensure that the market does not become saturated, the Act gives the TLC the authority to issue an additional 12,000 HAIL licenses once it conducts a market analysis to determine whether the issuance of additional HAIL licenses is necessary. Furthering the legislature’s goals, the Act also allows HAIL licensees to apply for grants that will enable them to either purchase accessible vehicles or retrofit existing vehicles to meet the accessibility requirements.

Addressing the legislative finding concerning the lack of accessible yellow cabs in Manhattan’s central business district, the Act permits the Mayor to “administratively authorize” the TLC, an executive branch commission, to publicly sell up to 2,000 additional medallions that are restricted to accessible yellow cabs operating within zones where HAIL licensees are prohibited from accepting street hails (HAIL Act § 8). Only 400 of these medallions may be issued initially, with the remainder being issued only after the New York State Department of Transportation approves the Disabled Accessibility Plan as set forth in section 10 of the Act. Construed together, the Act’s provisions bear a reasonable relationship to a substantial state interest.

Plaintiffs assert that the Act does not satisfy the “reasonable relationship” prong, claiming that it “eviscerates” the City’s separation of powers by transferring to the Mayor the authority to issue up to 2,000 new medallions, and intrudes upon the City’s budgeting authority to the extent that it allows the TLC to award $54 million in grants to HAIL licensees without giving the City Council any input as to how much money should be appropriated. Although it remains an open question whether our home rule analysis requires us to find each individual piece of legislation satisfies a substantial state interest, we address plaintiffs’ arguments individually here because the “poison pill” provision contained in section 6 of the Act (L 2011, ch 602, § 6, as amended by L 2012, ch 9, § 3) provides that if one provision fails, the entire Act must fail.

Section 8 of the Act does not “transfer” any of the City Council’s powers to the Mayor. Rather, it allows the Mayor to “administratively authorize the TLC” to issue “by public sale” up to 2,000 medallions. This is merely an implementation device and it does not encroach on the City Council’s authority under section 2303 (b) (4) of the New York City Charter to issue additional taxicab licenses. As the governing body that passed this Act, it was within the state legislature’s purview to delegate a portion of the Act’s implementation to the Mayor, whose administrative authorization of the sale of the medallions advances a legitimate goal of this law, by securing accessible vehicles where they are needed most. Therefore, section 8 bears a reasonable relationship to the substantial state interest of increasing the supply of accessible yellow cabs.

It also cannot be reasonably argued that section 9’s requirement calling for the TLC’s establishment of a grant program to distribute up to $54 million in grants for the purchase or retrofitting of accessible HAIL vehicles interferes with the City Council’s “power of the purse.” First, the requirement furthers the substantial state interest in providing accessible yellow cabs and livery vehicles and bears a reasonable relationship to those goals. Second, the Act does not direct the Mayor to include these grants in the TLC budget, nor does it direct the City Council to appropriate funds to support such grants. Third, the Act purports to raise revenue through the HAIL licensing fees and the potential auctioning off of the medallions, which may presumably offset the up to $54 million in grant money.

Nor does section 23 of the Act, which requires that penalties for violations of the Act be “transferred to the entity that issued the summons for [a HAIL vehicle] violation,” intrude on the city’s finances, as plaintiffs suggest. Section 23 provides, in pertinent part, that “[notwithstanding the provisions of any other law to the contrary, the New York state police may enforce any laws, rules or regulations related to vehicles with HAIL licenses,” and requires that the commission or tribunal adjudicating liability for a violation pay “the money owed and collected to the entity that issued the summons for the violation.” According to the New York City Charter, however, city revenues and those of the New York City Police Department that are “not required by law to be paid into any other fund or account shall be paid into . . . the ‘general fund’ ” (NY City Charter § 109). In other words, the City maintains control over the funds derived from its law enforcement entities that enforce the Act, while the New York State Police receive monies for the summonses they issue.

Plainly, not only does the Act, including its challenged provisions, address substantial state concerns, but it also “bear[s] a reasonable relationship” to those concerns. Therefore, Supreme Court erred in concluding that the Act violates the Municipal Home Rule Clause.

V

Certain plaintiffs assert that the HAIL Act violates the “Double Enactment Clause,” which states that, with certain exceptions, the legislature:

“Shall enact, and may from time to time amend, a statute of local governments granting to local governments powers including but not limited to those of local legislation and administration in addition to the powers vested in them by this article. A power granted in such statute may be repealed, diminished, impaired or suspended only by enactment of a statute by the legislature with the approval of the governor at its regular session in one calendar year and the re-enactment and approval of such statute in the following year” (NY Const, art IX, § 2 [b] [1]).

The Double Enactment Clause “was intended to afford localities protection from hasty and ill-considered legislative judgments” but “was not . . . designed as a rigid impenetrable barrier to ordinary legislative enactments in matters of State concern” (Wambat Realty Corp. v State of New York, 41 NY2d 490, 491-492 [1977]).

It has not been demonstrated that the Act “repealed, diminished, impaired or suspended” any power in “a statute of local governments.” The Double Enactment Clause is no more exacting on the limits of state power than the Home Rule Clause, and, because we conclude that the Act addresses a substantial state concern, plaintiffs’ Double Enactment Clause argument necessarily fails.

VI

Finally, certain plaintiffs argue that the HAIL Act violates the Exclusive Privileges Clause. That clause provides that “[t]he legislature shall not pass a private or local bill. . . [g]ranting to any private corporation, association or individual any exclusive privilege, immunity or franchise whatever” (NY Const, art III, §17). The Exclusive Privileges Clause, which targets monopolies, may only be violated if the “private or local bill” is “directed at a single entity” and it confers “a privilege upon the single entity to the exclusion of all others” (Consumers Union of U.S., Inc. v State of New York, 5 NY3d 327, 360-361 and n 27 [2005]).

Plaintiffs claim that the Act grants exclusive privileges to the livery industry at the expense of all others, including the yellow cab industry, because it prohibits members of the yellow cab industry, or members of the general public, from obtaining a HAIL license. According to plaintiffs, because the HAIL Act authorizes the issuance of up to 18,000 licenses and allows only the current livery industry members to purchase them, it grants an exclusive privilege to those members. We disagree.

The licensing provisions apply to a class consisting of close to 60,000 livery vehicle drivers and owners. To be sure, the Act provides that “[w]ithin the first three years of the first issuance, HAIL licenses may be issued only to owners of for-hire vehicles or for-hire drivers who have been licensed by the TLC for at least one year and are in good standing with the TLC” (HAIL Act § 5 [b]), but that does not limit the number of people who may obtain one. Indeed, in order to qualify, all one needs to do is obtain a TLC license, operate a livery vehicle for one year and maintain good standing with the TLC. Thus, the number of persons who are able to obtain HAIL licenses will likely vary over time. This is not the type of “exclusivity” that the clause was meant to prohibit.

Accordingly, in all three appeals, the judgment of Supreme Court, insofar as appealed from, should be reversed, with costs, and judgment should be granted to defendants declaring that chapter 602 of the Laws of 2011, as amended by chapter 9 of the Laws of 2012, is constitutional.

Chief Judge Lippman and Judges Graffeo, Read, Smith and Rivera concur; Judge Abdus-Salaam taking no part.

In each case: Judgment, insofar as appealed from, reversed, with costs, and judgment granted to defendants declaring that chapter 602 of the Laws of 2011, as amended by chapter 9 of the Laws of 2012, is constitutional.

      . The central business district is the part of Manhattan that is south of East 96th Street and West 110th Street (see e.g. HAIL Act § 4 [c]).

      . Because the sale of medallions above their administrative cost implicates the New York State Legislature’s taxing power, the City Council must first obtain legislative approval before auctioning the medallions (see NY Const, art XVI, § 1).

      . A “for-hire vehicle” is “a motor vehicle carrying passengers for-hire in the city, with a seating capacity of twenty passengers or less, not including the driver, other than a taxicab, coach, commuter van or an authorized bus operating pursuant to applicable provisions of law” (HAIL Act § 4 [d] [emphasis supplied]).

        (n. cont’d)

      . A “HAIL vehicle” is “a for-hire vehicle having a taximeter and a TLC-sanctioned trip record system and [is] subject to a HAIL license” (HAIL Act § 4 [f]).

      . Accessible vehicles are “for-hire” vehicles that are “designed for the purpose of transporting persons in wheelchairs or contamf ] a physical device or alteration designed to permit access to and enable the transportation of persons in wheelchairs in accordance with the Americans with Disabilities Act” (HAIL Act § 4 [a]).

      . The “Disabled Accessibility Plan” is, among other things, a “comprehensive plan” that provides “an accessibility plan (i) that will lead to meaningful accessibility over a period of years for individuals with disabilities to all taxicabs, for-hire vehicles and HAIL vehicles through gradual phase-in of accessible vehicles to the taxicab, for-hire vehicle and HAIL vehicle transport system” (HAIL Act § 10 [a]).

      . Supreme Court also granted the motions of certain livery car companies to intervene on behalf of plaintiffs and defendants.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    [992 NE2d 1067, 970 NYS2d 724]
    Empire State Chapter of Associated Builders and Contractors, Inc., et al., Appellants, v M. Patricia Smith, in Her Official Capacity as Commissioner, New York State Department of Labor, et al., Respondents.
    Argued April 24, 2013;
    decided June 6, 2013

      POINTS OF COUNSEL

      Phillips Lytle LLP, Buffalo (Timothy W. Hoover, Michael B. Powers and William J. Simon of counsel), for appellants.
    I. The differential thresholds enacted by the 2008 amendments are an invalid and unconstitutional special law, as they were enacted without any reasonable relationship to a substantial statewide concern. (City of New York v Patrolmen’s Benevolent Assn. of City of N.Y., 89 NY2d 380; Town of Black Brook v State of New York, 41 NY2d 486; Adler v Deegan, 251 NY 467; Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 97 NY2d 378; Farrington v Pinckney, 1 NY2d 74; Hotel Dorset Co. v Trust for Cultural Resources of City of N.Y., 46 NY2d 358; Lincoln Bldg. Assoc. v Barr, 1 NY2d 413; Uniformed Firefighters Assn. v City of New York, 50 NY2d 85; Port Jefferson Health Care Facility v Wing, 94 NY2d 284; Paterson v University of State of N.Y., 14 NY2d 432.) II. The Labor Law § 222 (2) (e) apprenticeship requirements apply to both Wicks Law multi-prime and Wicks Law project labor agreement opt-out contracting, and violate the Privileges and Immunities Clause and the Commerce Clause, as they exclude all out-of-state contractors from all Wicks Law contracting. (Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475; A.J. Temple Marble & Tile v Union Carbide Marble Care, 87 NY2d 574; Squadrito v Griebsch, 1 NY2d 471; Feher Rubbish Removal, Inc. v New York State Dept. of Labor, Bur. of Pub. Works, 28 AD3d 1; Meghrig v KFC Western, Inc., 516 US 479; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95; Matter of Sbriglio v Novello, 44 AD3d 1212; Matter of Toys “R” Us v Silva, 89 NY2d 411; Matter of Daimler-Chrysler Corp. v Spitzer, 7 NY3d 653; Christensen v Harris County, 529 US 576.) III. The 2008 amendments violate the Equal Protection and Substantive Due Process Clauses of the New York and United States Constitutions, and State Finance Law § 123-b. (Massachusetts Bd. of Retirement v Murgia, 427 US 307; Alevy v Downstate Med. Ctr. of State of N.Y., 39 NY2d 326; Washington v Glucksberg, 521 US 702; Hernandez v Robles, 7 NY3d 338; Schnaier v Navarre Hotel & Importation Co., 182 NY 83; Godfrey v Spano, 13 NY3d 358.)

      Eric T. Schneiderman, Attorney General, Albany (Andrea Oser, Barbara D. Underwood and Allyson B. Levine of counsel), for respondents.
    I. The Appellate Division properly rejected plaintiffs’ home rule challenge to the three-tiered monetary thresholds. (Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 97 NY2d 378; Wambat Realty Corp. v State of New York, 41 NY2d 490; Matter of Town of Islip v Cuomo, 64 NY2d 50; Matter of Kelley v McGee, 57 NY2d 522; City of New York v Patrolmen’s Benevolent Assn. of City of N.Y., 89 NY2d 380; City of New York v Village of Lawrence, 250 NY 429; Baldwin v City of Buffalo, 6 NY2d 168; Hotel Dorset Co. v Trust for Cultural Resources of City of N.Y., 46 NY2d 358; Farrington v Pinckney, 1 NY2d 74; Matter of Wood v Irving, 85 NY2d 238.) II. The Appellate Division properly rejected plaintiffs’ equal protection challenge to the tiered monetary threshold. (Campaign for Fiscal Equity v State of New York, 86 NY2d 307; Affronti v Crosson, 95 NY2d 713; Maresca v Cuomo, 64 NY2d 242; Port Jefferson Health Care Facility v Wing, 94 NY2d 284; Schneider v Sobol, 76 NY2d 309.) III. The Appellate Division properly rejected plaintiffs’ constitutional challenges to Labor Law § 222. (Matter of Moran Towing Corp. v Urbach, 99 NY2d 443; Cohen v State of New York, 94 NY2d 1; McGowan v Burstein, 71 NY2d 729; United States v Salerno, 481 US 739; Alliance of Am. Insurers v Chu, 77 NY2d 573; Cleburne v Cleburne Living Center, Inc., 473 US 432; Matter of New York State Ch., Inc., Associated Gen. Contrs. of Am. v New York State Thruway Auth., 88 NY2d 56; Campaign for Fiscal Equity v State of New York, 86 NY2d 307; Washington v Davis, 426 US 229.) IV Plaintiffs lack standing to bring a citizen-taxpayer claim, and any such claim lacks merit. (Rudder v Pataki, 93 NY2d 273; Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801; Matter of Transactive Corp. v New York State Dept. of Social Servs., 92 NY2d 579; Godfrey v Spano, 13 NY3d 358.)
   OPINION OF THE COURT

Smith, J.

We hold that, where the legislature has enacted a law of statewide impact on a matter of substantial state concern but has not treated all areas of the state alike, the Home Rule section of the State Constitution does not require an examination into the reasonableness of the distinctions the legislature has made.

I

The Wicks Law, originally enacted in 1912, requires public entities seeking bids on construction contracts to obtain “separate specifications” for three “subdivisions of the work to be performed”—generally, plumbing, electrical and HVAC (heating, ventilating and air conditioning) work (L 1912, ch 514, § 50, now codified in General Municipal Law § 101, Public Housing Law § 151-a, State Finance Law § 135 and elsewhere). The law has long been controversial; public entities have complained that it makes contracting more burdensome and expensive (see generally Rosenstein & O’Reilly, Wicks Law Revisited, NYLJ, Nov. 13, 2007 at S1). Until 2008, the Wicks Law applied everywhere in the state to contracts whose cost exceeded $50,000.

This case concerns amendments to the Wicks Law enacted in 2008 that raised the $50,000 threshold, imposed so-called “apprenticeship requirements” on some public contracting, and made other changes not relevant here (L 2008, ch 57, part MM). The new, higher thresholds, unlike the old one, are not uniform throughout the state. They are $3 million in the five counties located in New York City; $1.5 million in Nassau, Suffolk and Westchester Counties; and $500,000 in the other 54 counties (see id. §§ 1, 2-6, 14).

Plaintiffs’ main claim, asserted in their first cause of action, is that the 2008 legislation violates article IX, § 2 of the State Constitution (the Home Rule section) by unjustifiably favoring •the eight counties with higher thresholds—i.e., by loosening Wicks Law restrictions to a greater extent for them than for the other counties. Plaintiffs also assert 20 other claims, largely directed at the apprenticeship requirements imposed by the 2008 legislation.

On defendants’ motion pursuant to CPLR 3211, Supreme Court dismissed the complaint, holding, as to the Home Rule cause of action, that plaintiffs lacked standing to assert it and that in any event the challenged amendments to the Wicks Law did not violate the Home Rule section because they “were enacted in furtherance of and bear a reasonable relationship to a substantial statewide concern” (Empire State Ch. of Associated Bldrs. & Contrs., Inc. v Smith, 30 Misc 3d 455, 457 [Sup Ct, Erie County 2010]). Supreme Court also rejected plaintiffs’ other claims. The Appellate Division held that one plaintiff, the County of Erie, did have standing to sue, but agreed with Supreme Court that plaintiffs’ Home Rule claim and all of their other claims failed on the merits; it modified Supreme Court’s judgment by reinstating the complaint to the extent it sought declaratory relief, and declaring the 2008 legislation valid and constitutional (98 AD3d 335 [4th Dept 2012]). Two Appellate Division Justices dissented; they agreed with the majority that the amendments addressed substantial state concerns, but concluded that the three-tiered classification of counties was not “rational and reasonably related to those State concerns” and was therefore invalid under the Home Rule section (id. at 351 [Peradotto, J., dissenting]).

Plaintiffs appeal to us as of right, pursuant to CPLR 5601 (a) and (b) (1). Like the Appellate Division majority, we conclude that at least one plaintiff, the County of Erie, has standing to assert the Home Rule claim (see Town of Black Brook v State of New York, 41 NY2d 486 [1977]), but that that claim fails on the merits. We find that most of plaintiffs’ other claims fail also, but modify the Appellate Division order to reinstate four causes of action challenging the apprenticeship requirements as applied to out-of-state contractors.

II

The Home Rule section of the State Constitution says:

“(b) Subject to the bill of rights of local governments and other applicable provisions of this constitution, the legislature: . . .
“(2) Shall have the power to act in relation to the property, affairs or government of any local government only by general law, or by special law only (a) on request of two-thirds of the total membership of its legislative body or on request of its chief executive officer concurred in by a majority of such membership, or (b) except in the case of the city of New York, on certificate of necessity from the governor reciting facts which in the judgment of the governor constitute an emergency requiring enactment of such law and, in such latter case, with the concurrence of two-thirds of the members elected to each house of the legislature.” (NY Const, art IX, § 2 [b] [2].)

It is undisputed that neither of the prerequisites described in subdivisions (a) and (b) of section 2 (b) (2)—a so-called “home rule message” or a certificate of necessity from the governor— was met in this case. And we assume, without deciding, that the distinctions drawn between counties in the 2008 legislation make that legislation a “special law,” defined in article IX, § 3 (d) (4), as relevant here, to be “[a] law which in terms and in effect applies to one or more, but not all, counties.” Nevertheless, we conclude that the legislation was not forbidden by the Home Rule section.

The language of article IX, § 2 (b) (2) seems broadly to prohibit, where the specified prerequisites are not met, the enactment of any special law “in relation to the property, affairs or government of any local government.” Another subdivision of the same section, section 2 (c) (i), uses similar language in granting power to local governments:

“every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to its property, affairs or government.”

These two provisions might be read to mean that, in the absence of a home rule message or certificate of necessity, a local government’s “property, affairs or government” is an area in which local governments are free to act, but from which the state legislature is excluded unless it legislates by general law. It was long ago recognized, however, that such a reading of the Constitution would not make sense—that there must be an area of overlap, indeed a very sizeable one, in which the state legislature acting by special law and local governments have concurrent powers. As Chief Judge Cardozo put it in his concurring opinion in Adler v Deegan (251 NY 467, 489 [1929]) (interpreting similar language in an earlier Constitution): “The Constitution . . . will not be read as enjoining an impossible dichotomy.” He added:

“The test is . . . that if the subject be in a substantial degree a matter of State concern, the Legislature may act, though intermingled with it are concerns of the locality ... I do not say that an affair must be one of city concern exclusively to bring it within the scope of the powers conferred upon the municipality ... I assume that if the affair is partly State and partly local, the city is free to act until the State has intervened. As to concerns of this class there is thus concurrent jurisdiction for each in default of action by the other.” (Id. at 491.)

We have adopted in later cases the test as Chief Judge Cardozo formulated it (e.g. Wambat Realty Corp. v State of New York, 41 NY2d 490, 494 [1977]; Matter of Town of lslip v Cuomo, 64 NY2d 50, 56-57 [1984]; City of New York v Patrolmen’s Benevolent Assn. of City of N.Y., 89 NY2d 380, 390-391 [1996]; Greater N.Y. Taxi Assn. v State of New York, 21 NY3d 289 [2013] [decided today]). And we have found support in the Constitution’s text for the view that the permitted spheres of the state legislature and localities overlap. We relied in Town of Islip on article IX, § 3 (a) (3) of the Constitution, which says:

“Except as expressly provided, nothing in this article shall restrict or impair any power of the legislature in relation to . . . [m]atters other than the property, affairs or government of a local government.” (See Town of Islip, 64 NY2d at 55-56.)

This language is not a mere redundancy—a statement that article IX, § 2 (b) (2) does not prohibit what it does not prohibit. A great deal of legislation relates both to “the property, affairs or government of a local government” and to “[m]atters other than the property, affairs or government of a local government”—i.e., to matters of substantial state concern. Where that is true, section 3 (a) (3), as we interpreted it in Town of Islip, establishes that section 2 (b) (2) does not prevent the State from acting by special law.

This principle controls this case. It can hardly be disputed, and plaintiffs here do not dispute, that the manner of bidding on public construction contracts is a matter of substantial state concern. The existence of the Wicks Law itself for the last century, and of much other legislation governing public contracting (e.g. General Municipal Law § 100-a [requiring competitive bidding]) attests to this. The very amendments of which plaintiffs complain, though they do not treat all counties alike, unquestionably affect the state as a whole.

Plaintiffs argue, however, that a finding that the legislation addresses a substantial state concern is not the end of the analysis. Relying on City of New York v Patrolmen’s Benevolent Assn, of City of N.Y. (89 NY2d 380 [1996]) (PBA I), they say that the Home Rule section also imposes a separate reasonableness test on “special” legislation. Plaintiffs read too much into the PBA I decision.

PBA I involved an intervention by the state legislature in a dispute between New York City and one of its employee unions. The City and the PBA had failed to negotiate a collective bargaining agreement, and the City had requested its local Board of Collective Bargaining (BCB) to appoint an impasse arbitration panel. “[A]t that time,” the legislature, acting without a home rule message, passed a bill “which purported to give . . . exclusive jurisdiction over negotiation impasses between the City and the New York City police” to the BCB’s state counterpart, the Public Employment Relations Board (PERB) (id. at 387). The legislature thus sought to create an exception, applicable only to negotiations between New York City and the police, to the statewide rule that local governments could “completely opt out of PERB’s jurisdiction over impasse procedures” (id. at 388).

We held the legislation invalid under the Home Rule section, finding that it “cannot be upheld under any substantial State interest” (id. at 392). To the assertion that the expressed purposes of the legislation—“to create State-wide uniformity with respect to impasse procedures” and to “provide a fairer forum for the New York City police”—were of statewide import, we responded that the legislation “bears no reasonable relationship to those goals” (id. at 392-393 [emphasis removed]). Uniformity could hardly be advanced by legislation applicable to one jurisdiction only, and the “fairness” rationale was shown to be pretextual, because of the “unchallenged substantial equivalency” between PERB’s impasse arbitration procedures and those of local bodies (id. at 393).

In short, we found in PBA I that the challenged legislation was the sort of state meddling in purely local affairs that the Home Rule section was enacted to prohibit. By contrast, five years later in a second PBA case, Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York (97 NY2d 378, 387 [2001]), we upheld legislation providing “that all collective bargaining impasses reached between local governments and their police and fire unions are resolved by PERB” (emphasis added). This new statute, we said, “was enacted in furtherance of and bears a reasonable relationship to a substantial State-wide concern” (id. at 388).

The legislation here is nothing like the legislation at issue in PBA I; its relationship to matters of substantial state concern is obvious and undisputed. Plaintiffs claim that the relationship is not “reasonable” in that nothing in the legislative history, or in the arguments now made by the State, provides a reasonable explanation for the disparity that the 2008 legislation introduced into the Wicks Law thresholds—which are now six times as high in New York City, and three times as high in certain surrounding counties, as in the rest of the state. But PBA I did not use “reasonable relationship” in this sense; that case is not an invitation to subject every geographical disparity in statewide legislation to a freestanding reasonableness analysis. The absence of a “reasonable relationship” in PBA I established that the challenged legislation was purely parochial, and of no real statewide importance; it could not reasonably be said to advance a substantial state interest. No such claim can be made in this case.

To subject legislation like the 2008 amendments to the Wicks Law to Home Rule analysis would lead us into a wilderness of anomalies. If statewide legislation like this is subject to Home Rule restrictions, how are the restrictions to be implemented? From where must a home rule message come? Plaintiffs’ logic leads to the conclusion that there should have been such a message from every one of the 62 counties affected. And if the law was passed in violation of the Home Rule provisions, what is the remedy? Are we to cure the disparity between counties by raising the Wicks Law threshold in 54 counties, or by reducing it in eight counties to the level established elsewhere? Or should we hold the 2008 legislation wholly invalid—so that the Wicks Law threshold remains at $50,000 throughout the state, a result that surely would not please plaintiffs?

We conclude that the Home Rule provisions of the Constitution were never intended to apply to legislation like this. They were intended to prevent unjustifiable state interference in matters of purely local concern. No one contends such interference has occurred here.

III

In addition to challenging the differences among the new Wicks Law thresholds, plaintiffs also challenge the apprenticeship provisions of the 2008 legislation. We conclude that four of plaintiffs’ claims relating to these provisions—the second through fifth causes of action, alleging that the apprenticeship provisions favor in-state over out-of-state contractors in violation of the Federal Constitution—should not have been dismissed.

The 2008 legislation (L 2008, ch 57, part MM, § 18) added a new section 222 to the Labor Law. Section 222 makes the Wicks Law’s bidding requirements inapplicable where a governmental entity requires its contractors to enter a “project labor agreement” (PLA) establishing a labor organization as the collective bargaining representative for all workers on the project (see Labor Law § 222 [1], [2] [a], [b]). One subdivision of that section, Labor Law § 222 (2) (e), is of concern to us here. The first sentence of subdivision (2) (e)—which plaintiffs do not challenge—requires a governmental entity entering into a contract for a “project undertaken pursuant to this section” to consider a number of factors in choosing and approving contractors and subcontractors. The second sentence, which plaintiffs do challenge, says that “[w]ith respect to any contract” that exceeds the new Wicks Law thresholds:

“the entity shall further require that each contractor and subcontractor shall participate in apprentice training programs in the trades of work it employs that have been approved by the department [of labor] for not less than three years and shall have graduated at least one apprentice in the last three years and shall have at least one apprentice currently enrolled in such apprenticeship training program.”

Among the plaintiffs in this action are a Pennsylvania-based contractor, its owner-president, and one of its employees. In the second through fifth causes of action, these plaintiffs assert that the programs to which the second sentence of Labor Law § 222 (2) (e) refers—“apprentice training programs . . . approved by” the New York State Department of Labor—are not open to out-of-state contractors and subcontractors, and thus that section 222 (2) (e) effectively excludes them from all work on public construction projects whose costs exceed the Wicks Law thresholds. This exclusion, these plaintiffs allege, violates two clauses of the Federal Constitution, the Privileges and Immunities Clause (art TV] § 2, cl 1) and the Commerce Clause (art I, § 8, cl 3).

Defendants respond that the challenged sentence of the statute has much less impact than plaintiffs claim—that it applies not to all projects, but only to those that proceed under PLAs. Defendants stress that the title of section 222 is “Project labor agreements”; that its opening subsections define that term and set forth requirements for the use of PLAs; and that the first sentence of section 222 (2) (e) is made applicable “with respect to each project undertaken pursuant to this section”—i.e., that sentence is plainly limited to projects proceeding under PLAs. While the second sentence contains language that seems broader—referring to “any contract” that exceeds the new Wicks Law thresholds—defendants point out that the word “further” in the second sentence (“the entity shall further require”) links it to the first. Thus defendants say that the limited scope of the other provisions of section 222 should be read into the second sentence of section 222 (2) (e).

We accept, as did the courts below, defendants’ view of the scope of the statute. This reading is a reasonable one, and it minimizes the constitutional problem. Unfortunately, however, it only minimizes the problem; it does not eliminate it. If the second sentence of Labor Law § 222 (2) (e) unconstitutionally discriminates against out-of-state contractors, it is invalid whether it applies to many projects or to relatively few.

Defendants do not appear to dispute that, if the effect of the second sentence of Labor Law § 222 (2) (e) is to exclude out-of-state contractors from bidding on certain New York contracts, both the Privileges and Immunities Clause and the dormant Commerce Clause have been violated. The Privileges and Immunities Clause says that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The Commerce Clause empowers Congress “[t]o regulate Commerce . . . among the several States”; it has long been understood that this clause, though phrased as a grant of power to Congress, has a “dormant,” or “negative,” aspect that restricts state regulation of interstate commerce in the absence of congressional action. Both clauses significantly limit the power of states to give preferential treatment to their own citizens (e.g. Hicklin v Orbeck, 437 US 518 [1978] [Privileges and Immunities Clause]; Oregon Waste Systems, Inc. v Department of Environmental Quality of Ore., 511 US 93 [1994] [dormant Commerce Clause]), and defendants do not argue that an outright exclusion of non-New York businesses from a class of public construction contracts would comply with these limitations. Rather, defendants argue that no such exclusion exists— that out-of-state contractors are able to “participate in” apprentice training programs as required by the second sentence of section 222 (2) (e), and so are not excluded from New York construction work that proceeds under PLAs.

On this motion to dismiss pursuant to CPLR 3211 we are unable to conclude, from the face of the complaint, the statute and the relevant regulations, that the apprenticeship requirements are not exclusionary. A Department of Labor regulation requires that the “sponsor” of each approved apprenticeship program have “a permanent facility located in New York State” (12 NYCRR 601.4 [a] [5]); thus, subject to a limited exception, a firm whose facilities are entirely outside New York cannot sponsor an apprenticeship program. The exception is that out-of-state sponsors can obtain “reciprocal approval” for their own apprenticeship programs—but only to the extent that apprentices work on “projects funded, in whole or in part, with Federal money” (12 NYCRR 601.15 [c]; see also 12 NYCRR 601.3 [s]).

Defendants say that the inability of an out-of-state contractor to be a sponsor is immaterial, because Labor Law § 222 (2) (e) requires contractors only to “participate in” a program, not to sponsor one. Defendants suggest—but nothing in the record proves—that out-of-state contractors may “participate” in programs sponsored by New York labor organizations. (Defendants do not discuss the question of whether such programs are open to workers who do not live in New York. If not, the constitutional problem is not solved.) Indeed, defendants argue, with the support of an interpretative letter from the Department of Labor, that any contractor doing work on a project where a PLA is in effect automatically becomes a participant in the apprenticeship program of the union that is a party to the PLA. How this will work in practice for out-of-state contractors is not explained.

Plaintiffs reply by pointing out that the statute says not only that “each contractor and subcontractor shall participate in apprentice training programs” but also that the contractor or subcontractor “shall have graduated at least one apprentice in the last three years and shall have at least one apprentice currently enrolled.” As plaintiffs argue, this seems to imply that the contractor must sponsor its own apprenticeship program, not merely have its employees trained in a program sponsored by others.

We conclude that plaintiffs’ second through fifth causes of action sufficiently allege that the second sentence of Labor Law § 222 (2) (e) unconstitutionally excludes out-of-state contractors from some public construction work in New York. Perhaps defendants can show, on a motion for summary judgment or at trial, that no such exclusion exists, but on this record they have not done so.

IV

Plaintiffs’ remaining causes of action require only brief discussion. All but one of them assert that plaintiffs have been deprived either of equal protection or of substantive due process under the Federal or State Constitution. But no equal protection or due process violation is sufficiently alleged. The allegations of the complaint do not show that any provision of the 2008 amendments to the Wicks Law divides persons into classes, or deprives any person of property, without a rational basis, or that any such provision infringes any plaintiffs fundamental right or intentionally discriminates against a protected class. The courts below properly dismissed all of these claims.

The remaining cause of action, the sixth, which challenges both the Wicks Law thresholds and the apprenticeship requirements of the 2008 legislation, is brought pursuant to State Finance Law § 123-b. That statute permits any “citizen taxpayer” to bring an action against a state officer or employee for causing “a wrongful expenditure, misappropriation, misapplication, or . . . other illegal or unconstitutional disbursement of state funds.” We agree with the courts below that the statute has no application here. To the extent that plaintiffs’ claims relate to state expenditures, they are merely claims “that state funds are not being spent wisely” not “that it is illegal to spend money at all for the questioned activity” (Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 813-814 [2003]). Plaintiffs have not alleged “a sufficient nexus to fiscal activities of the State to allow for section 123-b standing” (Rudder v Pataki, 93 NY2d 273, 281 [1999]).

Accordingly, the order of the Appellate Division should be modified to reinstate the second, third, fourth and fifth causes of action in the complaint, and as so modified affirmed, without costs.

Chief Judge Lippman and Judges Graefeo, Read, Pigott and Rivera concur; Judge Abdus-Salaam taking no part.

Order modified, without costs, by reinstating the second, third, fourth and fifth causes of action of the complaint and, as so modified, affirmed.