Supreme Court, Westchester County

Decided on April 16, 2026

Index No. 55568/2025

David F. Everett, J.

[*1]

The State of New York moves pursuant to CPLR 3211 (a) (7) and 3212 for dismissal of the complaint for failure to state a cause of action and summary judgment declaring that the age [*2]limit for the Shock Incarceration Program contained in Correction Law § 865 (1) is constitutional. Plaintiff Tammy L. George moves pursuant to CPLR 3001 and 3212 for summary judgment declaring that the age limit contained in Correction Law § 865 (1) is unconstitutional on its face under Article I, Section 11 of the New York State Constitution. The New York Civil Liberties Union Foundation ("NYCLU") moves for leave to appear amicus curiae and to file a proposed amicus brief.

Defendant's motion is granted to the extent of declaring that Correction Law § 865 (1) insofar as it sets an age limit for the Shock Incarceration Program is not unconstitutional on its face, plaintiff's motion is denied, and NYCLU's motion to file an amicus brief is granted.

The following papers were read on the above referenced motions.

PAPERS NYSCEF Doc. No.

Notice of motion (Motion Seq. No. 1) / Memorandum of law / Sanford

Affirmation 22-25

Stipulation adjourning motions 41

Memorandum of law in opposition / Stecker Affirmation in opposition /

Exhibits 1-5 48-54

Stipulation adjourning motions 55

Memorandum of law in reply / Driscoll Affirmation in reply 58-59

Notice of motion (Motion Seq. No. 2) / Memorandum of law / Statement of

material facts / George Affirmation in support / Stecker Affirmation in support

/ Exhibits 1-9 26-39

Affirmation in opposition / Memorandum of law in opposition / Statement of

material facts / Exhibit A 44-47

Stecker Affirmation in reply / Memorandum of law in reply 56-57

Notice of motion (Motion Seq. No. 3) / Munson Affirmation in support / Exhibit 1

/ Exhibits A-C / Affirmation of service 60-66

BACKGROUND

Plaintiff commenced this declaratory judgment action to challenge, under the Equal Rights Amendment, the constitutionality of the age limit in Correction Law § 865 (1), which defines the eligibility criteria for New York's Shock Incarceration Program ("Shock" or "the program"), and states that an individual must be under age fifty to be eligible for the program.FN1 Plaintiff, who is fifty-eight years old and incarcerated at Taconic Correctional Facility, alleges [*3]that Correction Law § 865 (1) is discriminatory in excluding individuals age fifty and older from Shock. The Equal Rights Amendment, which was ratified by referendum on November 5, 2024 and became effective January 1, 2025, expanded the list of classifications in Article I, Section 11 of the New York State Constitution, to include age, among other categories. Article I, Section 11, as amended, states the following:

"a. No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, ethnicity, national origin, age, disability, creed, religion, or sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy, be subjected to any discrimination in their civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state, pursuant to law.

b. Nothing in this section shall invalidate or prevent the adoption of any law, regulation, program, or practice that is designed to prevent or dismantle discrimination on the basis of a characteristic listed in this section " (NY Const, art I, § 11 [emphasis added]).

Plaintiff alleges that Shock is a six month state correctional program for individuals serving sentences for non-violent felonies, and upon successful completion of the program, participants become immediately eligible to be conditionally released (NYSCEF Doc. No. 2, p. 1; see Correction Law § 867 [5]). On September 20, 2023, plaintiff entered the custody of the Department of Corrections and Community Service ("DOCCS") for an aggregate indeterminate term of 3½ to 7 years of incarceration for non-violent felonies and she is not yet eligible for parole. Plaintiff alleges that but for her age, she is otherwise eligible for Shock (id. at 2, 5). The State of New York filed an answer asserting affirmative defenses, including that the age criteria is rationally related to a legitimate governmental purpose and is therefore constitutional (NYSCEF Doc. No. 9, p. 4).

On May 29, 2025, the parties entered into a preliminary conference order, which set a schedule for discovery and directed the parties to appear for a compliance conference on September 23, 2025. A recusal order for the then assigned Supreme Court Justice was issued on September 18, 2025. The matter was reassigned to this Part and a court notice was filed on October 2, 2025, scheduling the matter for a compliance conference (NYSCEF Doc. Nos. 17, 18). On October 30, 2025, plaintiff filed a letter stating counsel conferred and agreed that "no further discovery is required at this time" (NYSCEF Doc. No. 19). The parties then filed stipulations setting a schedule for summary judgment motions (NYSCEF Doc. Nos. 20, 21, 41, 55).

It is unclear on these motions whether the parties consider discovery to be completed. Plaintiff states in her reply papers that after reviewing an affirmation in support of defendant's motion from Jarrod Sanford, an attorney employed by DOCCS, plaintiff requested that Mr. Sanford be produced for a deposition and this request was denied (Stecker Affirmation in Reply, p. 2). Insofar as the parties have moved for summary judgment before the completion of discovery and the issuance of a trial readiness order, they have charted their own procedural course and will not now be heard to complain (see Dellwood County Club, Inc. v Budget Rent A Car Corp., 267 AD2d 194 [2d Dept 1999]).

CONTENTIONS

Plaintiff's Contentions

Plaintiff seeks a judgment pursuant to CPLR 3001, declaring that the age limit for Shock eligibility contained in Correction Law § 865 (1) is unconstitutional. Plaintiff argues that the age limit in Correction Law § 865 (1) is age-based discrimination subject to strict scrutiny review. Plaintiff relies on the Court of Appeals decision in People v Aviles (28 NY3d 497 [2016]), in which the Court stated that equal protection challenges have been primarily evaluated using either a strict scrutiny or a rational basis standard of review. "Where government action disadvantages a suspect class or burdens a fundamental right, the conduct must be subjected to 'strict scrutiny,' and will be upheld only if the government can establish a compelling justification for the action Where a suspect class or fundamental right is not implicated, the government action need only be rationally related to a legitimate governmental purpose" (People v Aviles, 28 NY3d 497 [2016]).

Plaintiff contends that the Equal Right Amendment's inclusion of age as a category in Article I, Section 11 makes age a "suspect class" for purposes of equal protection analysis and the age limit in Correction Law § 865 (1) is subject to strict scrutiny. Plaintiff further contends that the subject age limit infringes on plaintiff's liberty interest in avoiding future incarceration, arguing this is a fundamental right subject to heightened scrutiny. Plaintiff argues that under strict scrutiny, the government bears the burden of demonstrating the statute furthers a compelling state interest and is narrowly tailored to achieve that purpose.

Plaintiff contends that the subject age limit is unconstitutional under both strict scrutiny and rational basis scrutiny, as it is arbitrary and serves no governmental purpose. Plaintiff argues that age has no relationship to an individual's suitability for the program and it can no longer be used as a proxy for physical or mental fitness (Plaintiff's Memorandum of Law in Support, p. 10, 11).

Defendant's Contentions

Defendant seeks a judgment pursuant to CPLR 3001, declaring that the age limit for Shock eligibility contained in Correction Law § 865 (1) is constitutional. Defendant argues that legislative enactments are entitled to a strong presumption of constitutionality, and the courts will strike them down only as a last unavoidable result after every reasonable mode of reconciling the statute with the Constitution has been found impossible (Defendant's Memorandum of Law in Support, p. 9; see also Stefanik v Hochul, 43 NY3d 49 [2024]).

Defendant argues that Article I, Section 11 consists of two distinct parts, the Equal Protection Clause and the Civil Rights Clause. Defendant contends that plaintiff's challenge under the Equal Protection Clause fails because the Equal Rights Amendment amended only the Civil Rights Clause (id. at 9-10).

The Court is not persuaded by this argument, as it contradicts the rules of statutory construction. "The primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of the Legislature" (Statutes § 92; see also Carney v Philippone, 1 NY3d 333 [2004]). The legislative intent behind the Equal Rights Amendment was to ensure that New York's constitutional language reflects a commitment to comprehensive equal protection "by providing legal protections that go above and beyond the protections of the Federal Constitution" (NY Committee Rep, 2023 NY S.B. 108 [NS] [Feb. 2023]; see also NY Spons Memo, 2023 A.B. 1283). Defendant's argument that the Equal Protection Clause in the State Constitution remains coextensive with the Equal Protection Clause in the Federal Constitution conflicts with the clear legislative intent in proposing the Equal Rights Amendment, and contradicts the general spirit and purpose underlying its enactment (see Statutes §§ 92, 96).

Defendant argues that plaintiff's challenge to the age limit in Correction Law § 865 (1) fails because Corrections Law § 867 states that participation in Shock is a privilege afforded to certain individuals subject to eligibility and suitability criteria (Correction Law § 867 [2], [2-a] and [5]). The statute expressly states that "[p]articipation in [Shock] shall be a privilege. Nothing contained in this article may be construed to confer upon any incarcerated individual the right to participate or continue to participate in [the program]" (Correction Law § 867 [5]). Defendant argues that eligibility for the program is not a right under the statute, nor a civil right under state law.

Relying on Diamond v Cuomo (70 NY2d 338 [1987]), defendant argues that prior to the Equal Rights Amendment, the Court of Appeals determined that age is not a suspect classification subject to strict scrutiny. Defendant contends that this remains good law, plaintiff's constitutional challenge is subject to rational basis review, and the age limit in Correction Law § 865 (1) is rationally related to a legitimate governmental objective. Defendant asserts that government actors may rely on age as a proxy for other qualities, abilities or characteristics that are relevant to the State's legitimate interests. Defendant argues that in this case the subject age limit is a rational proxy for the physical ability, fitness and mental acuity needed to successfully complete Shock. Defendant further argues that the subject age limit saves the State the fiscal and administrative burdens associated with the individualized assessment of individuals over age fifty (Defendant's Memorandum of Law in Support, p. 10, 11). Alternatively, defendant argues that age classifications are subject to, at most, intermediate scrutiny, which is sufficiently skeptical to protect constitutional rights, yet flexible enough to accommodate legislation that is drafted to address important state interests (id. at 13, 15; see also Anonymous v City of Rochester, 13 NY3d 35 [2009]).

ANALYSIS

Declaratory Judgment

Plaintiff's cause of action seeks declaratory relief, declaring that the age limit in Correction Law § 865 (1) is unconstitutional on its face following the Equal Rights Amendment. A declaratory judgment is a discretionary remedy (see Dolce-Richard v New York City Health and Hospitals Corp, 149 AD3d 903 [2d Dept 2017]). The Court may render a declaratory judgment having the effect of a final judgment as to "the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed" [CPLR § 3001]). "To constitute a 'justiciable controversy,' there must be a real dispute between adverse parties, involving substantial legal interests for which a declaration of rights will have some practical effect" (Chanos v MADAC, LLC, 74 AD3d 1007 [2d Dept 2010]). An action for declaratory judgment is the proper vehicle to challenge the constitutionality of a legislative enactment (Matter of Merced v Fisher, 38 NY2d 557 [1976]). Resort to judicial scrutiny is appropriate when a statute is alleged to be unconstitutional by its terms or application (see Matter of 5055 Northern Boulevard, LLC v Incorporated Village of Old Brookville, 201 AD3d 932 [2d Dept 2022]; see generally Watergate II Apartments v Buffalo Sewer Authority, 46 NY2d 52 [1978]).

Under Correction Law § 865 (1), the definition of an individual eligible for Shock includes, among other things, "one who has not reached the age of fifty years" (Correction Law § 865 [1]). An eligible individual may make an application to a screening committee for permission to participate in Shock (Correction Law § 867 [1]). If the screening committee determines that an individual's participation in Shock is consistent with the safety of the [*4]community, the welfare of the applicant, and the rules and regulations of the department, the committee shall forward the application to the commissioner or his designee for approval or disapproval (Correction Law § 867 [2]).

Plaintiff submits an affirmation stating that she currently meets all of the eligibility requirements for Shock, except for her age, which automatically makes her ineligible for the program (George Affirmation in Support, p. 1, 2). Defendant submits an affirmation from Jarrod Sanford, Associate Counsel for DOCCS, who states individuals who are age fifty or above are statutorily excluded from enrollment in Shock (Sanford Affirmation in Support, p. 4). As a declaratory judgment would have an immediate and practical effect on the rights and actions of the parties, the parties' dispute constitutes a justiciable controversy.

Where, as here, plaintiff's cause of action is sufficient to invoke the court's power to render a declaratory judgment and no questions of fact are presented by the controversy, the branch of defendant's motion seeking to dismiss for failure to state a cause of action should be treated as one seeking a declaration in the defendant's favor (see Neuman v City of New York, 186 AD3d 1523 [2d Dept 2020]).

Correction Law § 865 (1)

The New York State Constitution, Article XVII, Section 5, states that the Legislature may provide for the maintenance and support of correctional institutions, and for systems of probation and parole of individuals convicted of a crime. This constitutional provision also mandates the establishment of a state commission of correction. Furthermore, Correction Law article 3 provides for the organization and functions of the State Commission of Correction within the Executive Department, stating it is a three-person commission which is appointed by the governor with the advice and consent of the Senate (Correction Law § 41). It is within this constitutional and statutory framework pertaining to the Commission of Correction and DOCCS, and mindful of the separation of powers, that this Court reviews the constitutionality of the age criteria in Correction Law § 865 (1).

In considering this facial challenge to the constitutionality of Correction Law § 867 (1), this Court is guided by the principle that all legislative enactments are supported by a strong presumption of constitutionality (Byrn v New York City Health & Hospitals Corp., 38 AD2d 316 [2d Dept 1972]; see also Matter of Van Berkel v Power, 16 NY2d 37 [1965]). This principle is accompanied by another presumption, "that the Legislature has investigated and found the existence of a situation showing or indicating the need for or desirability of the legislation" (Matter of Van Berkel v Power, 16 NY2d 37 [1965]). "Questions of wisdom, need or appropriateness are for the Legislature and we strike down statutes it has enacted only as a last resort" (Byrn v New York City Health & Hospitals Corp., 38 AD2d 316 [2d Dept 1972]). The party challenging a duly enacted statute faces "the initial burden of demonstrating the statute's invalidity beyond a reasonable doubt. Moreover, courts must avoid, if possible, interpreting a presumptively valid statute in a way that will render it unconstitutional" (1160 Mamaroneck Avenue Corp. v City of White Plains, 211 AD3d 723 [2d Dept 2022]).

In 1987, the Legislature enacted legislation establishing Shock, a six-month program providing rigorous physical activity, intensive regimentation and discipline, and rehabilitation therapy and programing (Correction Law § 865 [2]). The statute was initially enacted for young incarcerated individuals, setting an age limit of twenty-three to be eligible for the program (see L 1987, ch 261, § 15). The Legislature has revised the eligibility criteria for Shock, including the age limit for the program, numerous times since its inception. The statutory age limit for [*5]eligibility was raised to twenty-five in 1988; to twenty-nine in 1989; to thirty-four in 1992; to thirty-nine in 1999; and to forty-nine in 2009 (see L 1987, ch 261, § 15; see also L 1988, ch 59, § 5; see also L 1989, ch 338, § 9; see also L 1992, ch 55, § 292; see also L 1999, ch 412, pt. B, § 1; see also L 2009, ch 56, pt. L, § 1). The legislative history related to Shock makes clear that an age limit for eligibility was set from the program's inception, and the Legislature has sought over time to expand the age of eligibility for the program.

In examining Corrections Law § 865 (1) under the Equal Right Amendment, the Court looks to whether the Legislature intended the Equal Rights Amendment to be applied to existing statutes retroactively. The law on statutory construction provides that an amendment will generally only have prospective application, and will have no retroactive effect unless the language of the statute clearly indicates this interpretation (see Statutes § 52). It is a basic tenet of constitutional and statutory interpretation that the clearest and most compelling indicator of the drafters' intent is the language itself. When a constitutional provision is clear and leads to no absurd conclusion, there is no reason to search beyond the provision for an assumed intent (Hernandez v State, 173 AD3d 105 [3d Dept 2019], citing People v Carroll, 3 NY2d 686 [1958]). If the Legislature intended the Equal Rights Amendment to have retroactive effect, it could have included express language to that effect, and its failure to do so may be construed as intentional (see Statutes § 74).

Plaintiff argues that the Sponsor's Memorandum states that "even in the absence of specific executing legislation, [Article I, Section 11 of the Constitution] operates to prohibit the application of laws and governmental action that discriminate on the basis of an enumerated protected category." The Sponsor's Memorandum states that "by clarifying that the amended section applies to all government actions taken 'pursuant to law,' this amendment is intended to apply to any action with force of law, including action by the executive or legislative branch, local government, or any subdivision thereof" (NY Sponsor's Mem, 2023 A.B. 1283). The Sponsor's Memorandum also states "that the legislature retains the power to enhance the Constitution's equal protection guarantee with appropriate legislation designed to achieve the full equal rights of any class listed in this section, and the section will operate to 'invalidate or prevent the adoption of' those laws, regulations, programs, or practices that do not serve such a remedial purpose" (id.). The language in both the Equal Rights Amendment and the Sponsor's Memorandum is prospective language that applies to future government action, including any action by the executive branch and its departments.

This Court finds that plaintiff failed to meet her burden of demonstrating beyond a reasonable doubt that Correction Law § 865 (1) is facially unconstitutional, as there is no clear evidence that the Legislature intended the Equal Rights Amendment to be applied retroactively (see generally Miller v State, — AD3d —, 2026 NY Slip Op 01409 [1st Dept 2026]). If the Legislature agrees with the premise that the age eligibility requirement serves no legitimate government purpose, it can amend Correction Law § 865 (1), which defines "eligible incarcerated individual" to include a maximum age limit. Plaintiff's argument that the age eligibility requirement in the statute serves no legitimate governmental purpose is an argument about the wisdom, rationality and fairness of a statutory scheme that is within the purview of the legislative branch to address.

As plaintiff's cause of action is a facial challenge to the constitutionality of Correction Law § 865 (1), this Court does not reach the broader issue of whether government action applying the age limit in this statute constitutes unconstitutional age-based discrimination under [*6]Article I, Section 11. This Court declines to address whether Article I, Section 11 is self-executing, or which level of scrutiny applies to age-based classifications, as these issues have been rendered academic in light of the Court's determination herein.

Thus, while plaintiff's effort to have the age limit contained in Correction Law § 865 (1) declared facially unconstitutional fails here, this does not preclude an as-applied constitutional challenge to Correction Law § 865 (1), as plaintiff argues that the age limit is arbitrary because individuals age fifty and over are suitable for the program, they are equally capable of rehabilitation, and the age limit does not meet even the lowest level of judicial scrutiny.

All other arguments raised in the parties' motions and evidence submitted by the parties in connection thereto have been considered by this Court, notwithstanding the specific absence of reference thereto.

Motion Seq. No. 3

The New York Civil Liberties Union ("NYCLU") moves for leave to appear amicus curiae in this case and to file a proposed amicus brief in support of plaintiff's motion and in opposition to defendant's motion (NYSCEF Doc. Nos. 60, 61). As per NYCLU, plaintiff consents to its motion and defendant takes no position on the motion (NYSCEF Doc. No. 61, p. 2).

Notwithstanding that the motion is untimely because the return date on the parties' motions was February 27, 2026 (NYSCEF Doc. No. 55), and NYCLU's motion was not filed until April 1, 2026, the Court has considered the proposed amicus curiae brief. NYCLU asserts that the Equal Rights Amendment demonstrates two key features: "[f]irst, [the drafters] sought to add clear, enforceable antidiscrimination protections for certain enumerated categories of New Yorkers. Second, they sought to ensure the equality protections of the New York State Constitution go beyond the protections of the United States Constitution by offering a more robust set of enforceable rights to New Yorkers." The Court finds that the arguments raised by NYCLU do not require a different result.

CONCLUSION

The Court holds that Correction Law § 865 (1) is not facially unconstitutional, as the plaintiff failed to meet the required standard of proof. The Court expressly declines to address whether the age limit violates Article I, Section 11 as applied. This decision does not preclude future as-applied challenges, nor does it limit the Legislature's authority to amend the statutory age criteria.

In accordance with the foregoing, defendant's motion is granted and plaintiff's motion is denied and it is

ORDERED AND ADJUDGED that the branch of defendant's motion (Motion Seq. No. 1) pursuant to CPLR 3211 (a) (7), seeking an order dismissing plaintiff's action, is deemed to be for a declaratory judgment in the defendant's favor; and it is further

ORDERED AND ADJUDGED that the branch of defendant's motion pursuant to CPLR 3001, seeking a declaratory judgment, is granted to the extent of declaring that Correction Law § 865 (1) insofar as it sets an age limit for the Shock Incarceration Program is not unconstitutional on its face; and it is further

ORDERED AND ADJUDGED that plaintiff's motion (Motion Seq. No. 2) is denied in its entirety; and it is further

ORDERED AND ADJUDGED that NYCLU's motion (Motion Seq. No. 3) for leave to appear amicus curiae and to file a proposed amicus brief is granted; and it is further

ORDERED that within ten (10) days, defendant shall serve a copy of this Order and Judgment with notice of entry upon all parties and file proof of service on NYSCEF.

The foregoing constitutes the Decision, Order and Judgment of the Court.

Dated: April 16, 2026

White Plains, New York

ENTER:

HON. DAVID F. EVERETT, J.S.C.