In opposing plaintiffs’ application for a preliminary injunction, the State nevertheless argues that although the previously-employed reasoning for applying the rational basis test is no longer available after Aliessa, there is an alternative rationale which supports using this test in response to an equal protection challenge to the FAR Focusing on the fact that the FAP is available solely to aliens, the State argues that the strict scrutiny test should only be applied in cases where state law draws a distinction between aliens and nonaliens and that, in the absence of such a distinction, the rational basis test should apply. In this respect, it points out that the FAP is a new program which the State voluntarily created in order to assist aliens whose eligibility to participate in the federal Food Stamp Program was terminated by the Welfare Reform Law. The State *615also points out that Social Services Law § 95 (10) (b) withdraws no benefits from aliens and, unlike the State Medicaid program under consideration in Aliessa, in which both citizens and aliens participated, it draws no distinction between citizens and aliens, as citizens are not eligible for food stamp benefits under the FAE According to the State, the fact that the FAP fails to extend state-funded food stamp coverage to all of the aliens who were excluded from the federal Food Stamp Program does not constitute a classification based on <mask> since aliens are not being discriminated against vis-a-vis citizens. In support of this argument, the State cites a recent decision by a Massachusetts state court which found that the residency requirements imposed for eligibility in a state public assistance program which was established, in response to the Welfare Reform Law, for the benefit of only aliens should be subject to the rational basis test since no citizens were otherwise eligible. (See Doe v Commissioner of Transitional Assistance, 437 Mass 521, 773 NE2d 404 [Sup Jud Ct, Suffolk County 2002].)


“No owner of a dwelling to which the benefits of this section shall be applied, nor any agent, employee, manager or officer of such owner shall directly or indirectly deny to any person because of race, color, creed, national origin, gender, sexual orientation, disability, marital status, age, religion, <mask> or citizenship status, or the use of, participation in, or being eligible for a governmentally funded housing assistance program, including, but not limited to, the section 8 housing voucher program and the section 8 housing certificate program, 42 U.S.C. 1437 et seq., . . . any of the dwelling accommodations in such property or any of the privileges or services incident to occupancy therein.” (Administrative Code § 11-243 [k] [emphasis added]; 4301 Realty LLC v Yurovskaya, Civ Ct, Kings County, Feb. 4, 2005, Index No. L&T 106482/02.) The legislative history confirms that the proposed law was intended to


“unlawful discriminatory practice for the owner . . . of a housing accommodation . . . “(1) To refuse to sell, rent, lease, approve the sale, rental or lease or otherwise deny to or withhold from any person or group of persons such a housing accommodation or an interest therein because of the actual or perceived . . . <mask> or citizenship status of such person . . . [and] “(2) To discriminate against any person because of such person’s actual or perceived . . . alienage or citizenship status ... in the terms, conditions or privileges of the sale, rental or lease of any such housing accommodation.” (Administrative Code of City of NY § 8-107 [5] [a] [1], [2].) The undisputed record demonstrates discrimination based on plaintiff’s “actual or perceived . . . alienage or citizenship status” in violation of this provision. Defendant’s August, September and October letters expressly state that plaintiffs rent cannot be accepted and his lease cannot be renewed because of his “questionable immigration status in the US.” Moreover, defendant’s notice of termination could not be any more explicit in stating that plaintiffs tenancy is being terminated because of his “illegal” immigration status.


This analysis and conclusion is dispositive of the equal protection issue which is now before this court. As with the federal legislation in Aliessa, which authorized the states to provide State Medicaid to qualified aliens who were rendered ineligible under the Welfare Reform Law for Federal Medicaid, the federal legislation which authorizes the states to provide food assistance to aliens no longer eligible for federally-funded food stamps does not provide any uniform guidelines or standards for the states to use in deciding eligibility. As in Aliessa, the State can essentially decide for itself the criteria for differentiating between those aliens who are entitled to receive food stamps and those who are ineligible. Indeed, if anything, the criteria which the State Legislature has established for alien entitlement to state-funded food stamps is far more reflective of a policy toward immigration and alien residency than the criteria which the State developed for alien participation in the State *614Medicaid program. Thus, whereas qualified aliens seeking State Medicaid assistance were ineligible unless they had entered the United States before August 22, 1996 or had resided in the country for five years, participation in the FAP is largely limited to those who not only entered the United States before August 22, 1996, but have also resided in the same social services district since August 22, 1996, have not been outside the United States for more than 90 days in the year preceding their application for benefits, and have applied for citizenship within 30 days of the application or, if not yet eligible to apply for citizenship, within 30 days of becoming eligible to apply for citizenship. As the plaintiffs point out, these restrictions penalize the right to travel. More importantly, they seek to impose a state policy which carves out the terms and conditions of immigration which New York alone has decided are desirable and appropriate. It is a policy which reflects New York’s own concept of “largesse, economics and politics.” (Aliessa, 96 NY2d at 435.) As such, the FAP should not receive through federal law any “special insulation” from strict scrutiny review but, rather, must “be evaluated as any other State statute that classifies based on <mask>.” (Id. at 436.)


The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits a state from “denying] to any person within its jurisdiction the equal protection of the laws.” (US Const, 14th Amend, § 1.) In considering whether a state statute violates the Equal Protection Clause, the United States Supreme Court applies different levels of scrutiny to different types of classifications. A strict scrutiny analysis must be applied to classifications that discriminate against persons based on their <mask>. (See Bernal v Fainter, 467 US 216, 227-228 [1984]; Nyquist v Mauclet, 432 US 1, 7-12 *306[1977]; see Hernandez v Robles, 7 NY3d 338, 375 [2006]; Matter of Aliessa v Novello, 96 NY2d 418, 430-431 [2001].)


By virtue of the act of April 28, 1868, the legislature authorized the persons who would be heirs-at-law of the intestate, but for the disqualification of <mask>, to take and hold the lands and released to them all the estate, right, title and interest of the people therein. The defendant holds under a conveyance made by a surviving brother and the sister. They are persons who are designated in the act, and we are of opinion that the intestate being illegitimate the defendant, by virtue of the grant from the brother and sister, acquired a valid title.


‘ ‘ Classifications based upon sex, like classifications based upon race, <mask>, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny ”. (Frontiero v. Richardson, supra; p. 688; see, also, Matter of Sontag v. Bronstein, 33 N Y 2d 196; People ex rel. Watts v. Watts, 77 Misc 2d 178; People v. Hamilton. N. Y. L. J., Dec. 26, 1974, p. 15, col. 8.)


“ § 248.40 Residence * * * (b) Condition for plan approval. A State plan under title XIX of the Act may not impose any resident requirement which excludes any individual who is a resident of the State. For purposes of this section: (1) A resident of a State is one who is living in the State voluntarily with the intention of making his home there and not for a temporary purpose * * * Residence may not depend upon the reason for which the individual entered the State, except insofar as it may bear upon whether he is there voluntarily or for a ‘ temporary purpose “ § 248.50 Citizenship and <mask>. Conditions for plan approved. A State plan under title XTX of the Social Security act shall include an otherwise eligible individual who is a resident of the United States but only if he is either (a) a citizen or' (b) an alien lawfully admitted for permanent residence or otherwise permanently residing ip. the United States under Color of law (including any alien who is lawfully present in the United States as a result of the application of the provisions of section 203(a)(7) or section 212(d)(5) of the Immigration and Nationality Act). ” Section 248.50 aforesaid would not seem to sustain respondents’ position, by reason of the fact that said regulation was not adopted by the Department of Health, Education and Welfare until November 2, 1973.


“Relationship or association. The provisions of this section set forth as unlawful discriminatory practices shall be construed to prohibit such discrimination against a person because of the actual or perceived race, creed, color, national origin, disability, age, sexual orientation or <mask> or citizenship status of a person with whom such person has a known relationship or association.” (Emphasis supplied; see also Matter of Barton v New York City Commn. on Human Rights, 140 Misc 2d 554, 560-561 [Sup Ct, NY County 1988].) Additionally, Administrative Code § 8-102 (1) defines a “person” as “one or more natural persons, proprietorships, partnerships, associations, group associations, organizations, governmental bodies or agencies, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers.” Clearly, then, the Administrative Code authorizes claims for “disability association discrimination” (see Abdel-Khalek, 1999 WL 190790, *9, 1999 US Dist LEXIS 2369, *27-28), and also permits a variety of entities — and not solely individual plaintiffs — to bring discrimination suits.


Ironically, the broad federal control over diversity jurisdiction extends most liberally to aliens precisely because of the fear of offending foreign sovereigns by subjecting their citizens to suit in local tribunals. Kevin R. Johnson, Why <mask> Jurisdiction? Historical Foundations and Modern Justifications for Federal Jurisdiction over Disputes Involving Noncitizens, 21 YALE J. INT’L L. 1, 10–16 (1996). Deeming such defendants to be amenable to suit in state court because federal subject matter jurisdiction would recognize a federal forum to protect them from suit in state court seems to put matters backwards. It seems to be a trend among lower courts to apply the nerve center test to the question of general jurisdiction. See D.E. Wagner, Hertz So Good: Amazon, General Jurisdiction’s Principal Place of Business, and Contacts Plus As the Future of the Exceptional Case, 104 CORNELL L. REV. 1085, 1106 (2019). Nevertheless, answering one question by asking a different question does not advance the analysis. Separate and apart from the substantive question, the effort to subject this


"It shall be an unlawful discriminatory practice: "(a) For an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, sexual orientation or <mask> or citizenship status of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment.” In Meritor Sav. Bank v Vinson (477 US 57 [1986]), it was held that "a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment” (supra, at 66), but in order for "sexual harassment to be actionable, it must be sufficiently severe or pervasive 'to alter the conditions of [the victim’s] employment and create an abusive working environment’ ” (supra, at 67).


The construction contended for by the counsel for the plaintiff in error seems forced against the common sense purport of the act. The person who may inherit under the fifth canon must be the child of any such brother or sister who would have inherited by this law if living. Now, Hugh Fitz Simmons the father of the lessor of the plaintiff died an alien. Had he survived the intestate, still continuing an alien, he could not have inherited by this law. It is true he might, had he lived, have become naturalized so as to have taken on the death of the intestate, but so might all the brothers and sisters of the intestate. To me it seems that the lessor of the plaintiff claiming the benefit of this statute, must affirmatively show all the circumstances necessary to bring himself within it. He must show first, his own capacity to take (if the plea of <mask> to himself be interposed ;) he shows that he is naturalized, and that establishes his capacity to take. He must show secondly, his consanguinity in the relation to the intestate prescribed by the act, that of the child of a brother or sister of the intestate: the special verdict establishes this point also. But *18this is not enough, he must show further that he is the child of a brother or sister who would have inherited by this law if living. Now, unless all aliens can take under this law, Hugh Fitz Simmons, his father, if living could not take under this statute. He fails, therefore, to show that essential requisite. And this view of the case is supported by the declaration of the canon as to the quantum of interest, that such child or children shall inherit; it is such share- as would have descended to his, her, or their father or mother, if such father or mother had survived the said person so seised. The plain import of the fifth canon seems to me to be, to provide that the children of a person who, if living, would be an heir, shall, if such person be dead at the time of the descent cast, take the portion which such person if living would have taken. In opposition to this view of the case, it is contended by the counsel for the plaintiff in error that the fifth canon of descent casts the inheritance directly upon the lessor of the plaintifij and that he inherits directly from his uncle, and not through his father, who was dead at the time of descent cast. To this argument, however, it is a sufficient reply, that the lessor can-take only by force of the canon ; and the canon admits him to take, only in case his father could have taken had he been, living. To remove this objection, the counsel for the plaintiff contends that the statute means only to define the consanguinity of the person who is to take, and that this consanguinity being-traced, the inheritance without being supposed to follow down the- channel of blood or pedigree, descends at once by operation of the statute. And this ground is fortified by the argument that it is an absurdity to say that the nephew takes as heir from his father, who was dead' at the time of the descent cast, and therefore- never did take. Nevertheless this absurdity is one which is too plainly recognized at common-law, and forms a protection to too In any estates, to leave us at liberty to question it. At common law inheritance is well understood to descend through the channel of blood or consanguinity, and when that blood is corrupted by alienage or infamy, the inheritance is altogether obstructed or diverted into-a different channel. To sustain the argument of the counsel for the plaintiff then, we must- assume that the statute intends *19to take away the plea of alienage, and to overrule in this respect a principle of tire common law. That assumption might properly be made if the statute could in no case have operation, unless the common law principle was overruled. But such is not the case. The statute has full and complete operation in all cases where a person having capacity to take, traces his inheritable blood unobstructed through the channel of consanguinity. In my mind it cannot admit of doubt, therefore, that we are to consider the statute applicable only to those cases in which it can have operation, without overruling a principle of the common law not necessarily repealed by it. Indeed the same principles of construction which would enable the lessor of the plaintiff to take, notwithstanding the alienage of his father would allow him to take, although an alien himself


First cause of action: — Anglo asks for a rescission of the August 12 agreement on the grounds (a) that the individuals presuming to act on its behalf had no authority to do so, and (b) being a Canadian corporation it could not accept leases on Government owned oil lands, as these were. The first ground was abandoned as it had to be. As to the second, it is strange for a plaintiff to come into a court of equity and ask for rescission on the ground that because of its own status the agreement it made is illegal. I reject its position, and, in any case, it is altogether probable that only the Government can raise the questions of <mask> and its possible consequence (U. S. Code, tit. 30, § 181 et seq.; Code of Fed. Reg., tit. 43, §§ 191.3, 191.4; Manuel v. Wolff, 152 U. S. 505, 511; Isaacs v. De Hon, 11 F. 2d 943, 944).


This heightened level of judicial scrutiny is required when a state statute classifies by <mask>, race or national origin because “[t]hese factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy — a view that those in the burdened class are not as worthy or deserving as others.” (Cleburne v Cleburne Living Center, Inc., 473 US 432, 440 [1985].) Under a strict scrutiny analysis, a state law will withstand an equal protection challenge only when the state can show that the law “furthers a compelling state interest by the least restrictive means practically available.” (Bernal v Fainter, 467 US at 227; see Matter of Aliessa v Novello, 96 NY2d at 430.)


*116Where, however, a statute affects a “fundamental interest” such as voting (Harper v Virginia Bd. of Elections, 383 US 663); procreation (Skinner v Oklahoma, 316 US 535); freedom of speech (Carey v Brown, 447 US 455); or criminal appeals (Griffin v Illinois, 351 US 12) or if the challenged classification is “suspect” such as race (Loving v Virginia, 388 US 1); nationality (Hernandez v Texas, 347 US 475); or <mask> (Nyquist v Mauclet, 432 US 1) a “strict scrutiny” test is applied, to wit, whether the challenged classification is “necessary to promote a compelling state interest” (Eisenstadt v Baird, 405 US 438).


Thus, a legislative classification must be sustained unless it is patently arbitrary and bears no rational relationship to a legitimate governmental interest. The only exception to this rule is when the classification involved is based upon race, sex, <mask>, national origin, or status of birth, in which case it is inherently suspect and subject to careful judicial scrutiny. (Frontiero v. Richardson, 411 U. S. 677; Weber v. Aetna Cas. & Sur. Co., 406 U. S. 164; Reed v. Reed, 404 U. S. 71; Loving v. Virginia, 388 U. S. 1; Graham v. Richardson, 403 U. S. 365; and Yick Wo v. Hopkins, 118 U. S. 356.)


*244Y. The defendants finally insist that the alien next of kin are entitled to take, by descent, by virtue of the treaty of 1844, made between the United States and the kingdom of Wurtemberg, the said alien next of kin being subjects of that kingdom. That treaty allows subjects or citizens of either party to whom lands would have descended under the laws of the other, but for their <mask>, a term of two years to sell the same and to withdraw the proceeds thereof without molestation. It also provides that the said term may be reasonably prolonged according to circumstances. More than five years having already elapsed since Hafner’s death, and the defendants having failed to show a prolongation of the term, it may be a serious question whether the alien claimants are still within the protection of the treaty, or whether, if they once lost it, they have any remedy left, for the treaty makes no provision as to the manner or means in or by which the prolongation may be applied for or granted, and it may well be that in the absence of appropriate legislation upon the subject, that part of it which calls for a reasonable prolongation, remains a dead letter. The plaintiff also contends that the treaty, as a whole, has been impliedly abrogated. Upon reflection I have come to the conclusion that these as well as all other questions arising upon this branch of the case, should be reserved for the trial of the issues. For the purposes of the present motion it is sufficient to say that the rights of the alien claimants, in that respect, are not clear.


See Mass Bd. of Ret. v. Murgia, 427 U.S. 307, 312 & n.4 (1976) (per curiam) (<mask> and ancestry are suspect classifications); see also United States v. Williams, 124 F.3d 411, 422 (3d Cir. 1997) (national origin and alienage are suspect classifications). ethnicity. When they learned Mr. Mitra-Hernandez was not Juan Ramiro, the officers no longer had a basis to reasonably suspect he was in the country illegally. They were left only with the facts that he spoke Spanish and had a Mexican ID card, and on that basis alone they continued to detain and question him. That aspect of the seizure implicates Mr. Mitra-Hernandez’s Fifth Amendment equal protection right. 4


In reaching this result, this court is not unmindful of those areas where the general rule as to equal protection gives way and the courts impose what have been referred to as “strict scrutiny” and “careful scrutiny” tests. Inasmuch as those tests are applicable only to statutes which set forth classifications based on race, <mask> or national origin or impinge on personal rights protected by the Constitution (strict scrutiny) as well as classifications based on gender (careful scrutiny), they are not applicable to the instant matter (see, City of Cleburne v Cleburne Living Ctr., supra, at 439-442).


These considerations require a reversal of this judgment, but another question has been introduced into the case which requires examination. Assuming that the heirs of Joseph de Sendzemir are all Russian subjects, it is insisted that whatever rights they had in the property in question has been lost by the operation of the treaty between Russia and. the United States, concluded in December, 1832, the provisions of which was extended to the kingdom of Poland by the twelfth article. With full submission to the high authority of the Constitution of the United States, declaring that the Constitution and the laws of the United States, made in pursuance thereof, and all treaties made under the authority of the United States, shall be the supreme law of the land, we find, on examination of the treaty, that it has no application to these defendants. The provisions invoked is contained in the tenth article of the treaty and is as follows: “And where, on the death of any person holding real estate within the territories of one of the high contracting parties, such real estate would, by the laws of the land, descend on a citizen or subject of the other party, who, by reason of <mask>, may be incapable of holding it, he shall be allowed the time fixed by the laws of the country, and in case the laws of the country actually in force may not have fixed any such time, he shall then be allowed a reasonable time to sell such real estate and to withdraw and export the proceeds without moléstation. * * *


The rational basis test described above is not appropriate for the constitutional evaluation of all statutory classifications. Where a statute affects a "fundamental interest” or employs a "suspect” classification, the "strict scrutiny” test has been applied. That test requires that the legislative purpose be so compelling as to justify the means utilized. (Alevy v Downstate Med. Center, 39 NY2d 326, 332.) Suspect classifications include race (Loving v Virginia, 388 US 1), national origin (Hernandez v Texas, 347 US 475), and <mask> (Matter of Griffiths, 413 US 717). Fundamental interests include, inter alia, voting (Dunn v Blumstein, 405 US 330), travel (Shapiro v Thompson, 394 US 618), and procreation (Skinner v Oklahoma, 316 US 535).


Petitioner urges the court to adopt a strict scrutiny test in this instance on the grounds that the determination employed a suspect classification of petitioner. Previously identified by the United States Supreme Court as suspect are classifications based on <mask> (Matter of Griffiths, 413 US 717), national origin (Hernandez v Texas, 347 US 475; Takahashi v Fish Comm., 334 US 410, 418, 420), and race (Loving v Virginia, 388 US 1; McLaughlin v Florida, 379 US 184). Although no such classification is involved here, petitioner argues that the criteria set forth in San Antonio School Dist. v Rodriguez (411 US 1, 28) should lead to the conclusion that a suspect classification was dealt with here. There it was said (p 28) that a *164suspect class is one "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.”


. Administrative Code § 8-107 (5) (a) (1) provides that, with regard to housing accommodations, it shall be an unlawful discriminatory practice to “refuse to sell, rent, lease, approve the sale, rental or lease or otherwise deny to or withhold from any person or group of persons such a housing accommodation or an interest therein because of the actual or perceived race, creed, color, national origin, gender, age, disability, sexual orientation, marital status or <mask> or citizenship status of such person or persons, or because children are, may be or would be residing with such person or persons.” Section 8-107 (5) (a) (2) makes it unlawful to “discriminate against any person because of such person’s actual or perceived race, creed, color, national origin, gender, age, disability, sexual orientation, marital status or alienage or citizenship status, or because children are, may be or would be residing with such person, in the terms, conditions or privileges of the sale, rental or lease of any such housing accommodation or an interest therein or in the furnishing of facilities or services in connection therewith.”


“Employment. It shall be an unlawful discriminatory practice: “(a) For an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or <mask> or citizenship status of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment.” (Emphasis supplied.)


“[i]t shall be an unlawful discriminatory practice: “(a) For an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, caregiver status, sexual orientation or <mask> or citizenship status of any person . . . “(2) To refuse to hire or employ or to bar or to discharge from employment such person; or “(3) To discriminate against such person in compensation or in terms, conditions or privileges of employment” (Administrative Code of City of NY § 8-107 [1] [emphasis added]). The New York Court of Appeals has held that marital status is


Judge Jones, in Matter of Malpica-Orsini (36 NY2d 568, 581, n 2), gives the following concise analysis of what constitutes a "suspect” area. He writes: "Those classifications considered 'suspect’ in the constitutional sense include race (see, e.g., Loving v Virginia, 388 US 1; McLaughlin v Florida, 379 US 184); national origin (Hernandez v Texas, 347 US 475; Oyama v California, 332 US 633); <mask> (Matter of Griffiths, 413 US 717; Graham v Richardson, 403 US 365); and possibly sex (Frontiero v Richardson, 411 US 677; cf. Stanton v Stanton, 421 US 7). The character traits of these suspect classifications appear to share a common element — 'an immutable characteristic determined solely by the accident of birth’ (Frontiero v Richardson, supra, p 686).”


“It shall be an unlawful discriminatory practice for the owner, lessor, lessee, sublessee, assignee, or managing agent of, or other person having the right to sell, rent or lease or approve the sale, rental or lease of a housing accommodation, constructed or to *701be constructed, or an interest therein, or any agent or employee thereof: “(1) To refuse to sell, rent, lease, approve the sale, rental or lease or otherwise deny to or withhold from any person or group of persons such a housing accommodation or an interest therein because of the actual or perceived race, creed, color, national origin, gender, age, disability, sexual orientation, marital status, partnership status, or <mask> or citizenship status of such person or persons, or because of any lawful source of income of such person or persons, or because children are, may be or would be residing with such person or persons. “(2) To discriminate against any person because of such person’s actual or perceived race, creed, color, national origin, gender, age, disability, sexual orientation, marital status, partnership status, or alienage or citizenship status, or because of any lawfid source of income of such person, or because children are, may be or would be residing with such person, in the terms, conditions or privileges of the sale, rental or lease of any such housing accommodation or an interest therein or in the furnishing of facilities or services in connection therewith.” (Emphasis added.) The court notes that the New York City HRL law defines the term “gender” as “including] actual or perceived sex and . . . also including] a person’s gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth.” (Administrative Code § 8-102 [23].) Accordingly, discrimination based on gender identity is impermissible gender discrimination under the New York City Human Rights Law.


Equal protection claims (US Const, 14th Amend, § 1; NY Const, art I, § 11) are judged by the "rational basis” or "strict scrutiny” test (Alevy v Downstate Med. Center, 39 NY2d 326, 335 [1976]). Where, as here, there is no suspect classification (race, <mask> or nationality) or fundamental right at issue the rational basis test is applied. (Supra, at 332; Maresca v Cuomo, 64 NY2d 242, 250-251 [1984], appeal dismissed 474 US 802 [1985].) Under that test the statute or regulation is presumed valid and must be upheld if the challenged classification is rationally related to achievement of a legitimate State purpose (Trump v Chu, 65 NY2d 20 [1985], appeal dismissed 474 US 915 [1985]).


The United States Supreme Court has interpreted the Fourteenth Amendment's Equal Protection Clause as "essentially a direction that all persons similarly situated should be treated alike."30 Resolving a claim that some state action has resulted in the law's unequal application begins with the reviewing court deciding which of the "devised standards for determining the validity" of the complained-of state action should apply.31 The default, "general rule" or "standard" is that state action is "presumed to be valid" and will be upheld if it is but "rationally related to a legitimate state interest."32 This general rule "gives way, however," when a state action either "classifies by race, <mask>, or national origin,"33 or "impinge[s] on personal rights protected by the Constitution."34 Under these circumstances, the state action is subjected to "strict scrutiny," and will be sustained only if it is "suitably tailored to serve a compelling state interest."35


By Mr. Senator Allen. It was contended by the plaintiff in this cause, that he being a naturalized citizen, before the death of the intestate, the <mask> of his father at the time of his death, cannot affect his right to inherit, as the fifth canon ° of descent of the act of 1786, 1 R. L. 52, casts the inheritance directly upon him. It appears by the finding of the jury, that Felix FitzSimmons, a naturalized citizen, died seised of about 200 acres of land in the county of Saratoga ; that he left no issue, and died intestate. The plaintiff, Patrick Fitz Simmons, is the son of Hugh Fitz Simmons, who died in Ireland about eight years before the intestate. Hugh was the oldest brother of Felix, and at the time of his death was an alien. Thomas Fitz Simmons, the defendant, is also a brother of Felix, the intestate, and both Patrick and Thomas were naturalized before the death of Felix.


*341Although defendant here recognizes that the Graham Court held that State-made distinctions on the basis of <mask> are subject to strict scrutiny rather than a rational basis analysis, defendant urges that since Social Services Law § 122 was enacted pursuant to congressional policy (the PRWORA), this factor militates in favor of review under the rational basis analysis. Defendant cites to dicta in Plyler v Doe (457 US 202, 224 [1982], reh denied 458 US 1131 [1982]), in which the Supreme Court expressed agreement with the proposition that when the courts are faced with an equal protection challenge respecting the treatment of aliens, they must be attentive to congressional policy, and that “the exercise of congressional power might well affect the State’s prerogatives to afford differential treatment to a particular class of aliens.” However, this observation by the Plyler Court does not stand for the proposition that a rational basis test is to be applied here, nor does it indicate a retreat from the analysis applied in Graham {supra).


There is only one case provided in the statutes, in which a party who has lost the right to represent an estate can after-*352wards reclaim and regain it. That is where the person named in a will as executor may be laboring under a disability from nonage, or <mask>, or from being, a married woman, at the time of the first granting of letters testamentary, which disability shall be afterwards removed. In such case, it is provided, that such person may then apply for and receive supplementary letters testamentary, and be joined with the persons theretofore authorized to execute the will.


Moreover, although citizens are not eligible to participate in the FAI] there is still discrimination on the basis of <mask> since the challenged residency distinctions which the Social Services Law draws among aliens, such as ensuring that they apply for citizenship and that they not move within the state or leave the country for any extended period, are intimately and substantially connected to their very alienage. Presumably, it was for this reason that the plaintiffs have not challenged the age and health limitations imposed on an alien’s eligibility for participation in the FAP These limitations do not reflect alien-age. However, discrimination based on the length of an alien’s *616residency in the country, state or district, as well as on the status of an alien’s citizenship application, has everything to do with alienage. It is a discrimination which is “directed at aliens” and “only aliens are harmed by it.” (Nyquist v Mauclet, 432 US 1, 9 [1977].) The proposition that a state may adopt its own immigration policy by enacting a law which, based on characteristics unique to alienage, differentiates between aliens as to their entitlement to public assistance benefits and that this policy is subject only to the lenient rational basis test is a proposition which is at odds with the body of case law which has evolved in the area of equal protection. To the extent that the Massachusetts court in Doe concluded that the rational basis test should apply, it is in apparent conflict with the Court of Appeals decision in Aliessa, as well as with the relevant case law.


The second strand of equal protection analysis which has evoked strict judicial scrutiny has focused on the nature of the class affected. The Supreme Court has struck down legislation *899which draws lines on the basis of membership in certain suspect classes unless the State has shown that the statute furthers a compelling State interest. Implicit in the idea that particular classifications are suspect is a recognition by the court that certain "discrete and insular minorities” may need judicial protection from the adverse effects of a majoritarian political system (Note, Alternative Models of Equal Protection Analysis: Plyler v Doe, 24 BC L Rev 1363, 1373, n 106 [1983]). Under the Warren court, suspect classes included groups defined on the basis of race (Loving v Virginia, 388 US 1 [1967]; Korematsu v United States, 323 US 214 [1944], reh denied 324 US 885 [1945]), <mask> (Graham v Richardson, 403 US 365 [1971], supra,) and national origin (Hernandez v Texas, 347 US 475 [1954]) and perhaps, the poor (Gunther, The Supreme Court, 1971 Term-Forward: In Search of an Evolving Doctrine on a Changing Court: A Model for a New Equal Protection, 86 Harv L Rev 1 [1972]). While the Burger court initially identified a class based on gender as inherently suspect (Frontiero v Richardson, 411 US 677 [1973]) later decisions have not subjected gender-based classifications to strict scrutiny (see, e.g., Michael M. v Sonoma County Superior Ct., 450 US 464 [1981]; Craig v Boren, 429 US 190, supra; see also, Massachusetts Bd. of Retirement v Murgia, 427 US 307, 318-319 [Marshall, J., dissenting opn 1976], supra ["(The court) has apparently lost interest in recognizing further 'fundamental’ rights and 'suspect’ classes”]).


Constitutional analysis on equal protection grounds provides that "[u]nless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or <mask>, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest” (New Orleans v Dukes, 427 US 297, 303). In the area of rent classifications and regulations a low level of judicial scrutiny is afforded to legislation challenged as violative of equal protection. (People ex rel. Off. of Rent Admin., Div. of Hous. & Community Renewal v Berry Estates, 87 AD2d 161, 175, affd 58 NY2d 701; Reiner-Kaiser Assocs. v McConnachie, 104 Misc 2d 750; see also, Ballard v Rockville Centre Hous. Auth., 605d 1283.) Every intendment is in favor of the statute’s validity so that the very heavy burden of demonstrating unconstitutionality beyond a reasonable doubt rests upon the party who attacks a statute as unconstitutional. Only as a last unavoidable result do courts strike down a legislative enactment as unconstitutional (cf., Benson Realty Corp. v Beame, 50 NY2d 994, 995; I.L.F.Y. Co. v Temporary State Hous. Rent Commn., 10 NY2d 263, 269; Wiggins v Town of Somers, 4 NY2d 215, 218; Lincoln Bldg. Assocs. v Barr, 1 NY2d 413, 415).


3. The state court is to be satisfied of two things; first, the <mask> or citizenship in another state of the petitioner ; next, that the sum in dispute exceeds five hundred dollars. It is *347true, that the language appears to refer to the latter fact only, but the true interpretation must be, that both facts, the establishment of which renders it the duty of the state court to make the order, are to be made out to its satisfaction.


The testator died without leaving any issue, and the legacy to his sister’s child cannot pass to his sister’s grandchild under this section, unless a sister’s child maybe comprehended under the term, “ other descendant.” The Revisers “ took this section from the laws of Massachusetts, Yol. I., p. 94, § 8, and the laws of Virginia, 1st Yol. Re-, vised Code, p. 376, § 5 ” (-3 R. 8., p. 633, note), hut the provisions are materially different from that of the Massachusetts Statute. The words of the Massachusetts act, are, “ to a/ivy child or other relation” of the testator, who shall die before the testator, “ learning issue /” the Virginia statute, “ any child or other descendant of the testar tor” “ leaving issue” (now altered to any devisee or legatee) ; Pennsylvania, “ a child or other lineal descendant of the testator” “ leaving issueSohth-Carolina, “ cmy cMld of the testator” “ leaving issue Maine, “ child or other relation of a testator” “ leaving lineal descendants Missouri, “ child, grandchild, or other relation leaving lineal descendants Connecticut, “ child or grandchild of the testatoi1 leaving issue Georgia, “ cmy person named as a legatee” “leaving issue;” and the English act, “a child or other issue of the testator” “ leaving issue.” It will he seen that there is a wide range in these various legislative provisions, from that of Georgia, which prevents a lapse in every case where the deceased legatee has left issue, to that of Pennsylvania, which limits the sustentation of a lapsed legacy to the case of a lineal descendant leaving issue. Cm’ statute follows that of Virginia, varying from that of Massachusetts, by rejecting the term"1 any *318child or other relation” and adopting instead of it the words, “ any child or other descendant.” The intent of this is obvious, and there is no ground for indulging in such a loose interpretation of the word descendant, as to apply it to any person upon whom property might descend, and thus to extend a word of precise and definite meaning, until it be transformed into an equivalent to the term “ relation.” It is true the word “ ancestor,” as used in the act designed to cure defect of blood by <mask>, in favor of those to whom the inheritance would pass, has been read so broadly as to include every predecessor in estate, every person from whom property might be inherited (2 Ií. 8., p. '38, § 22), whether he be the ancestor in lineal ascent or not. But that is a remedial statute, intended to aid every person “ capable of inheriting,” so that he shall not “ be precluded from such inheritance by reason of the alien-age of any ancestor.” The object of the statute was to benefit every person capable of inheriting, and it might be reasonable to construe its provisions so liberally, as to comprehend under the word “ ancestor,” every person from whom an estate might be inherited. But the very question in relation to the section respecting lapsed legacies is, whom, it was intended to benefit, whether descendants only, in the proper sense of the term, or every person to whom property might descend. Again, in the Statute of Descents there is no use of the term “ ancestor ” inconsistent with the idea of ancestor in estate. But whether we refer to the Statute of Descents, or the Statute of Distributions, we are unable to find a single instance of the employment of the word “ descendants ” in any other signification than that of lineal descendants. It, in fact, nowhere occurs in either place, except in the unequivocal sense of posterity . of the body, and to interpret it as a synonyme with descendant in estate, would throw both statutes into utter confusion. For example, the following expressions may be taken, in the Statute of Descents: “ In case the intestate shall die without lawful descendants, and leaving a *319father“ If the intestate shall die without descendants and leaving no father“ Descendants and relatives of the intestate begotten before his death, but born thereafter, shall in all cases inherit,” &c.; and in the Statute of Distributions, “If the deceased leave a widow and no descendant) parent, brother or sister, nephew or niece,” &c.; “ If there be a brother or sister, nephew or niece, and no descendant or parent;” “ If the deceased leave a father, and no child or descendant)'' “ descendants or next of kin,” “ descendants and next of kin.” It thus abundantly appears, that in the statutes disposing of real and personal estate in cases of intestacy, a “ descendant” is one sprung-from the body of the person spoken of—a lineal descendant—and is never used as synonymous with, or comprehensive of, any other other class of relatives.


There is a proviso against males of full age that they shall not hold the same against the State unless they are citizens, or make and file the deposition required by law. But this does hot render them incompetent to take the title. That in no case escheats to the State, without the finding of an inquisition, where there are heirs competent to take. Here all are competent to take, but the adult male heirs cannot hold against the State unless they become citizens *232or file the necessary deposition. The male heirs of full age take a title defeasible by the State, unless before the consummation of the proceedings instituted to declare the forfeiture they become citizens or file the necessary deposition. But if they do either, their right and title becomes absolute and indefeasible. (Goodrich v. Russell, 42 N. Y., 177.) Their defeasible title is good, except against the sovereign power of the State. Their <mask> is a cause of forfeiture which may be established by a judicial proceeding instituted on behalf of the State for that purpose, and that may be defeated even after its commencement in the manner already mentioned. No such proceeding has been instituted, and therefore the State never acquired any right or interest in the premises. It follows that the State possessed nothing which it could grant or release to Foster J. Maynard, and that he took nothing under the act of the legislature releasing the interest of the State to him.


issue. For that reason, we do not address whether the district court properly denied the plaintiffs’ motion to transfer. On the personal jurisdiction issue, the plaintiffs contend that the district court improperly focused on LG Chem’s contacts with Georgia, rather than its contacts with the United States as a whole. In their view, personal jurisdiction over a foreign corporation not subject to jurisdiction in any state nonetheless exists in any federal court so long as the action arises out of the corporation’s “system- atic and continuous business in the United States.” This is so, the plaintiffs argue, because a federal court’s power over parties is lim- ited by the Fifth rather than the Fourteenth Amendment’s Due Process guarantee. Personal jurisdiction starts with service of process. See U.S. S.E.C. v. Carrillo, 115 F.3d 1540, 1543 (11th Cir. 1997). Under Rule 4(k)(1) of the Federal Rules of Civil Procedure, service of process “establishes personal jurisdiction” over a party if, for example, the person is subject to the long-arm statute of the state in which the court sits or if service is authorized by federal statute. FED. R. CIV. P. 4(k)(1)(A), (C). Under Rule 4(k)(2), service of process can estab- lish personal jurisdiction over a defendant that “is not subject to jurisdiction in any state[],” but only “[f]or a claim that arises under federal law.” Id. at 4(k)(2). Service under this latter provision “does not establish personal jurisdiction if the only claims are those aris- ing under state law[,] . . . even though there might be diversity or <mask> subject matter jurisdiction as to such claims.” Advisory Committee Notes to the 1993 Amendments to Rule 4. USCA11 Case: 21-11814 Date Filed: 01/31/2022 Page: 9 of 12


had been born there of parents who had arrived in the USVI as immigrants on June 29, 1932, would not be so shielded. How a system permitting this kind of discrimination could be said to further neighborhood stability or reliance interests of long-time property owners is unclear. The second sub-class benefitted by the real property exemption for An- cestral Native Virgin Islanders also seems difficult to justify as furthering a legitimate governmental interest, for the second sub-class is defined simply by parentage or ancestry. We need not delve into whether this use of “ancestry” in classifying citizens would be deemed “suspect” and thus subject to heightened scrutiny under the Fourteenth Amendment. See, e.g., Mass. Bd. of Retirement v. M urgia, 427 U.S. 307, 312 & n.4 (1976) (per curiam) (identifying <mask>, race, and ancestry as classifications subject to strict scrutiny). Again, it is unclear to us what legitimate governmental purpose would support favoring so starkly the descendants of individuals born or resident long ago in the USVI regardless of the descendants’ own connections (or lack thereof) to the Islands. Because we find it difficult to discern a legitimate governmental pur- pose that would be rationally advanced by providing property tax exemp- tions only for Ancestral Native Virgin Islanders, we would recommend revising the proposed constitution to eliminate Article XI, Section 5(g).


Second, W.S.'s claim that the statute unconstitutionally prefers married fathers over unmarried fathers in violation of equal protection principles is undeveloped on appeal. " ' "The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." ' " ( Walgreen Co . v . City and County of San Francisco (2010) 185 Cal.App.4th 424, 434, 110 Cal.Rptr.3d 498.) "There is no constitutional requirement of uniform treatment. [Citations.] Legislative classification is permissible when made for a lawful state purpose and when the classification bears a rational relationship to that purpose. [Citations.] 'Wide discretion is vested in the Legislature in making the classification and every presumption is in favor of the validity of the statute; the decision of the Legislature as to what is a sufficient distinction *774to warrant the classification will not be overthrown by the courts unless it is palpably arbitrary. ...' " ( Estate of Horman (1971) 5 Cal.3d 62, 75, 95 Cal.Rptr. 433, 485 P.2d 785.) "When legislation involves a suspect classification such as classifications based on race, nationality or <mask>, or the disparate treatment has a real and appreciable impact on a fundamental interest or right, a heightened standard of scrutiny is applied. [Citations.] In such cases, legislation will be *153upheld only if it is shown the state ' "has a compelling interest [that] justifies the law" ' and ' "that distinctions drawn by the law are necessary to further its purpose." ' " ( Neil S ., supra , 199 Cal.App.4th at p. 254, 131 Cal.Rptr.3d 51.)


I think it very clear, too, that Mrs. McGillis took an absolute life estate in the property given her by the codicil. She ivas to hold the gifts, devises and bequests made, or given to her by the codicil, subject to the same restrictions, limitations and powers in trust, specified in the will. It was, obviously, the intention of the testator to connect these latter devises and bequests with those already made, and to bring them within the provisions of the first clause of the will. But for their alien-age, the husband and children would have taken the same *52estate in the real property devised to Mrs. McGillis by the codicil, as they would have taken had it been included in the first clause of the will. And as their <mask> does not affect their right to take personal property, they do take under the codicil the same interest in the personal property there bequeathed to Mrs. McGillis for life, as they take under the provisions of the first clause of the will, in the personal property there bequeathed.


“In evaluating whether a statute violates the equal protection clause a court normally applies a ‘rational basis’ test to determine whether the varied treatment of separate classifications of citizens ‘rests on grounds wholly irrelevant to the achievement of the State’s objective’ (McGowan v Maryland, 366 US 420, 425). Where a statute’s application differentiates on the basis of race, <mask> or nationality, however, the classification is deemed suspect and a strict scrutiny test must be applied to determine whether the challenged law is ‘necessary to promote a compelling governmental interest’ (Shapiro v Thompson, 394 US 618, 634). “Between those two tests, a third has developed to evaluate a constitutional challenge to a gender-based statute which ‘must serve important governmental objectives and must be substantially related to achievement of those objectives’ (Craig v Boren, 429 US 190, 197; see Califano v Webster, 430 US 313, 316-317).” The first test, the “rational basis” test, is clearly the focal point of this court’s inquiry here.


Other than the fact that they were nondomiciliary aliens, all of the distributees were otherwise eligible to receive letters, and were therefore eligible to consent to the appointment of a nondistributee to receive letters in their stead. This court concludes from that holding, as well as the legislative history of the statute itself, i.e., SCPA 1001 (6) (see, 2d Report of EPTL-SCPA Legislative Advisory Comm, 1993 McKinney’s Session Laws of NY, at 2356), that where the only impediment to a distributee’s eligibility is his or her <mask>, that person is “eligible” for purposes of SCPA 1001 (6) and may consent to the issuance of letters to a nondistributee. Here, the surviving spouse is the only distributee whose consent is necessary because the infant children of the decedent are ineligible not solely because of their alienage, but also because of their infancy.


More recently the Supreme Court has applied the "strict scrutiny test” to equal protection cases. This test has been applied whenever a fundamental interest (e.g., Shapiro v Thompson, 394 US 618) is at stake or the Government has employed a suspect classification. Classifications based upon race (Loving v Virginia, 388 US 1), <mask> (Graham v Richardson, 403 US 365) and national origin (Oyama v California, 332 US 633) have been held to be inherently suspect and thus subject to close judicial scrutiny. The opinion in Frontiero v Richardson (411 US 677) convinces this court that sex is a suspect classification. At pages 686 to 687 of that opinion is stated the following: "since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate 'the basic concept of our system that legal burden should bear some relationship to individual responsibility.’ * * * And what differentiates sex from such nonsuspect statutes as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual *641members.” Having determined that classifications based upon sex are inherently suspect, this court must now determine whether the statute commands "dissimilar treatment for men and women who are * * * similarly situated.” (Reed v Reed, 404 US 71, 77.)


It is insisted, however, on the part of the plaintiff in error, that if the rules of the common law precluded the nephew from taking lands by descent from his uncle through the alien father by representation, our own statute of descents, which was in force in 1828, had provided for this particular case, and that the lessor of the plaintiff was entitled to inherit a moiety of the premises in question, under the provisions of the statute. The provision referred to is the fifth canon of descent, as prescribed by the act of the 23d of February, 1786, 1 R. L. of 1813, p. 53, and is as follows: “ Fifthly, in case any such brother or sister, who would have inherited by this law if liv*13ing, shall die before the said person-so seised, and leave a lawful child or children, such child or children surviving the said ¡person so seised shall inherit, if a child, solely, and if children, as tenants in common, in equal parts, such share as would have descended to his, her or their father or mother, if such father or mother had survived the person so seised.” It is evident, from the language of this clause of the statute, that it cannot help the lessor of the plaintiff in this case, because the children of a deceased brother are only to have such share of the estate of their uncle or aunt as their own father or mother would have inherited if living. The father in this case being an alien, no share would have descended to him if living, because the law never casts the estate upon a person who cannot legally hold it, except in the case of an attainder for the benefit of the crown. The true answer, however, to all claims under the statute of descents, contrary to the rules of the common law, is, that the statute was only intended to change the common law canons of descent. It is not an enabling statute to give capacity to persons to take by descent in cases where, by the common law, they were incapable of inheriting by reason of <mask> or other disability. If a literal interpretation were given to the fourth canon of descent, as prescribed by this statute, it would cast the greatest portion of the premises in question here, upon the alien brothers and sisters of the person last seised, and the lessor of the plaintiff, under the fifth cannon, would share equally with his alien brothers and sisters, as tenants in common of his deceased father’s share, which would give him but one thirty-sixth part of the premises. Such was never the intention of the legislature, and giving such a construction to the provisions of the statute would unsettle the titles to property of immense value in this state.


But though it be immaterial, as to the point under discussion, what became of the Oneida nation since the death of John, the patentee, yet, in the opinion of the Supreme Court, much stress appears to have been laid upon the act of the 12th of April, 1822, pardoning Tommy Jemmy, and asserting exclusive criminal jurisdiction in the Courts of this, and the United States, over all crimes and offences committed within the state. Admitting that this act completely annihilated the national character, and the sovereign attributes of the six nations, what has this fact to do with the inquiry, how those nations stood, forty years ago. *717when John Sagoharase died, and when his son is asserted to have succeeded as heir ? Though this act may have gone a step beyond any former proceeding, in respect to Indian sovereignty, yet it only restrained the exercise of it in one particular mode, and claimed that jurisdiction over our own territory, which is perfectly consistent with the admission of the <mask>, and distinct national character of the Indians. It is understood that witchcraft is the only offence which the Indians have undertaken to punish judicially, as a community. It was a sentence for that offence that led to the act for which Tommy Jemmy was tried. All other of-fences are said to be left to the arm of private and family revenge; and their irregular and foul executions were shocking to humanity, and were not to be tolerated in the neighbourhood, and under the eye of a civilized and Christian people. Under the circumstances in which we were placed in relation to those Indians, as their guardians and protectors, we had a right to avail ourselves of the superiority of our character, and put a stop to such irregular and horrible punishments, even as our nation claims the right of punishing the subjects of other independent powers, without the consent, and against the will of their own governments, if they are caught in carrying on the African slave trade.


In the case at bar were it not for certain provisions of the treaty existing between the United States and Prussia the case above cited would control. The applicants for participation in the surplus moneys are residents of the Province of Hesse Cassel, and up to the time of the annexation of Hesse Cassel by Prussia in 1866, were subjects of the Dukedom of Hesse Cassel, and by such annexation became and have since remained Prussian subjects. Art. 2 of the treaty between the United States and Hesse Cassel made March 28, 1844, provides: “ When on the death of any person holding real property within the territories of the one party such real property would by the laws of - the land descend on the subject or citizen of the other, were he not disqualified by <mask>, such subject or citizen shall be allowed a term of two years to sell the same, which term may be reasonably prolonged, according to circumstances, and to withdraw the proceeds thereof without molestation, and exempt *359from the duties of detraction on the part of the government of the respective states.”


The brothers and sister of the intestate were his nearest relatives, and his only relatives on the part of his mother. Their <mask> impeded their succession to the inheritance. The plaintiffs thus became the next collateral relatives. But the intestate being illegitimate, the plaintiffs, as already shown, were excluded from the inheritance, and the intestate’s brothers and sister, irrespective of the treaty between the United States and the Grand Duchy of Hesse, which will be noticed presently, were also excluded from the inheritance because they were aliens. Such facts, therefore, show a total failure of heirs, and if there were no other facts they would also show that the lands had escheated to the people of the State.


The distinction in the Century Dictionary of an “ inhabitant ” from a “ transient visitor ” accurately applies to the present case in view of the description of Patrick Cassidy in the passport as a “ temporary visitor.” Regardless of his present intentions to remain here, he is subject to the terms of his admission to this country and the power of the United States Government to deport him. <mask> alone does not disqualify an administrator, but there must be adequate proof of his being an inhabitant. (Tanas v. Municipal Gas Co., 88 App. Div. 251, 259.)


*473“In evaluating whether a statute violates the equal protection clause a court normally applies a ‘rational basis’ test to determine whether the varied treatment of separate classifications of citizens ‘rests on grounds wholly irrelevant to the achievement of the State’s objective’ (McGowan v Maryland, 366 US 420, 425). Where a statute’s application differentiates on the basis of race, <mask> or nationality, however, the classification is deemed suspect and a strict scrutiny test must be applied to determine whether the challenged law is ‘necessary to promote a compelling governmental interest’ (Shapiro v Thompson, 394 US 618, 634).


“ ‘[T]he basic concern of the Equal Protection Clause is with state legislation whose purpose or effect is to create discrete and objectively identifiable classes.’ ” (Cheeseman v Bellacosa, 130 AD2d 920, 922 [3d Dept 1987], quoting San Antonio Independent School Dist. v Rodriguez, 411 US 1, 60-61 [1973, Stewart, J., concurring].) The instant plaintiffs do not allege that the state legislature’s intent in implementing the supermajority requirement of the tax-cap was based on impermissible considerations such as race, religion, <mask> or gender. Rather, plaintiffs allege that the challenged provision interferes with a “fundamental liberty” related to voting. However, the plaintiffs’ argument suffers from the same infirmities as identified in Brenner, specifically, that there is no allegation of discrimination against a preexisting classification of people because the voters classify themselves, and only after they vote in secret. As noted by the defendants,


The act was subsequently amended by chapter 38 of the Laws of 1875, which does not seem to have changed the *440phraseology of the act of 1874 in any material particular. There was a further amendment, by chapter 111 of the Laws of 1877, which does not appear to. have any bearing upon this case, as it seems to,affect only the cases of “any citizen of this State,” and provides that the title of such cannot be impeached by reason of the <mask> of any person from or through whom such- title may have been derived.


The present situation, indeed, seems to me to be one for which the legislature intended to furnish the¡ precise relief which this petitioner asks. If the respondent had applied for and obtained letters testamentary, being at the same time a non-resident alien, the Surrogate could, undoubtedly, upon proper application, have revoked such letters and removed him from office, even in advance of any exercise or at- . tempted exercise on his part of his functions as such executor (Code Civ. Pro., § 2685, subd. 1). The status of a person appointed by a will as testamentary trustee, and disqualified from acting as such by reason of <mask> and non-residence, is practically the same as that of an executor, who, though similarly disqualified, has in fact obtained letters in the absence of opposition.


This case is distinguishable from Yoc-Us v. Attorney General, 932 F.3d 98 (3d Cir. 2019), on which Rivera relies, because in that case it was local law enforcement who conducted an <mask> investigation during an unrelated stop. See id. at 105 (“Absent such authorization, local officers are discouraged from involving themselves in immigration matters.” (citation omitted)). Moreover, the officer in Yoc-Us lacked “reasonable suspicion that any of the passengers were engaged in any criminal activity or that there were any safety concerns to address.” Id. at 106. In this case, duly authorized ICE officers investigated Rivera’s alienage after stopping the van based on reasonable suspicion.


But even if this were not so and citizenship were not a constitutional qualification of a juryman, nevertheless it is of such magnitude and importance as to justify a new trial when the objection is not discovered in the exercise of reasonable diligence until after the trial. The statutory qualifications of a juryman are rarely inquired into, but on the contrary it is uniformly assumed that every juryman summoned is a citizen and otherwise generally *383qualified as required by statute. The examination on voir dire is almost universally directed to his bias, prejudice and partiality and it is not strange that neither the district attorney nor the defendant’s counsel asked the jurymen in this instance if they were citizens. In the face of an almost universal pract'ee of accepting the persons chosen by public officers to serve as jurymen as statutably qualified, it would be straining for a reason not based upon experience to say that the defendant should have asked the jury in this instance whether or not they were citizens. The question of age is sometimes brought out in the examination by counsel but usually because of the appearance of some juryman, but there is nothing in the appearance of an ordinary man to indicate whether or not he is a citizen. A man above or below the required age or one lacking the property qualifications (People v. Cosmo, 205 N. Y. 91) may make an excellent juryman. These are formal prerequisites. But not so with the qualification of citizenship. There is no presumption that an alien owing allegiance to a foreign government can act acceptably where the life of a citizen is at stake. A jury entirely made up of those not qualified as to age, residence or property may still render an impartial and just verdict but one made up entirely of aliens to try a citizen is fundamentally obnoxious. And if it is proper to convict of homicide with one alien, where shall the line be drawn when the number of those disqualified by <mask> becomes sufficiently serious to vitiate the verdict? The defect in the personnel of the jury in this instance is too grave and profound to pass over with a mere expression of opinion that the defendant ought to have discovered the disqualification before trial. We pride ourselves that under our judicial system a plea of guilty to a charge of murder in the first degree will not be accepted and that however guilty the accused may appear to be, he is presumed to be innocent and is entitled to a fair and impartial trial and to have Ms guilt established beyond a reasonable doubt, and it would seem like a travesty indeed on these principles to hold that he can have such a trial when one or more of the jurymen are aliens and to call his conviction under such circumstances a “ judgment of his peers.” See 18 L. R. A. 476; 50 L. R. A. (1914) (N. S.) 973. Motion for a new trial granted.


Hesse Cassel having become a part of Prussia in 1866, its citizens thereby became Prussian subjects. The above treaty became merged in the one existing at the time between Prussia and the United States, which was concluded in 1828 and which is still in force and effect. It provides: “ Where on the death of any person holding real estate within the territories of the one party such real estate would by the laws of the land descend on the citizen or subject of the other, were he not disqualified by <mask>, such citizen or subject shall be allowed a reasonable time to sell the same and to withdraw the proceeds without molestation and exempt from all duties of detraction on the part of the government of the respective states.”


*833The Human Rights Law includes a limited exception permitting discrimination on the ground of <mask> or citizenship status, when such discrimination “is required or when such preference is expressly permitted by any law or regulation of the United States.” (Administrative Code § 8-107 [14].) Presumably relying on this exception, defendant argues that “the only reason and motivation behind the termination notices were compliance with Federal Statute and to avoid civil and criminal penalties.” To support this argument, defendant cites solely to the federal statute, 8 USC § 1324 (a) (1) (A) (iii), which subjects a person to criminal penalties if he or she “knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation.” Defendant, however, cites no federal or New York legal precedent holding that the federal statute either requires a landlord to verify a tenant’s immigration status, or prohibits a landlord from renting an apartment to a tenant who lacks legal immigration status.1


"We come now to a consideration of the so-called “ Turn-Over Directive.” This instrument recites the finding of <mask>, heretofore shown to be erroneous, and demands of the trustee the immediate delivery of the assets comprising the principal of the trusts. Here a different situation prevails, for unlike the vesting of right, title and interest, in the case of a TurnOver Directive, as in the case of a vesting of the res, the court has no power to disturb the finding and no alternative except to direct compliance with the demand (Zittman v. McGrath, 341 U. S. 471; Kahn v. Garvan, supra; American Exch. Nat. Bank v. Garvan, 273 F. 43, affd. 260 U. S. 706, sub nom. Simon v. American Exch. Nat. Bank).


The general rule gives way, however, when a statute classifies by race, <mask> or national origin. These factors are so seldom relevant to the achievement of any legitimate State interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy — a view that those in the burdened class are not as worthy or deserving as others. For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling State interest (McLaughlin v Florida, 379 US 184, 192 [1964]; Graham v Richardson, 403 US 365 [1971]). Similar oversight by the courts is due when State laws impinge on personal rights protected by the Constitution (Kramer v Union School Dist., 395 US 621 [1969]; Skinner v Oklahoma, 316 US 535 [1942]).


The United States Supreme Court has made it clear that the label of “suspect class” is not one that should be lightly imposed simply because a class has faced some discrimination and disadvantage. (Massachusetts Bd. of Retirement v Murgia, 427 US 307, 313.) A “suspect class”, according to the Supreme Court, is one that has been continuously subjected to unique disabilities on the “basis of stereotyped characteristics not truly indicative of their abilities.” (Massachusetts Bd. of Retirement v Murgia, supra, at 313.) Such a label has been applied to classes such as race, <mask> and national origin, but not to the mentally incompetent. (See, Cleburne v Cleburne Living Ctr., supra, at 440.)


The classifications created by the statute are not based on race, <mask>, age or nationality and, therefore, the strict scrutiny test to determine whether the challenged law is "necessary to promote a compelling governmental interest” is not indicated. (Shapiro v Thompson, 394 US 618, 634.) Needed is a "rational basis” test to determine whether the varied treatment of separate classifications of citizens "rests on grounds wholly irrelevant to the achievement of the State’s objective.” (McGowan v Maryland, 366 US 420, 425.) When a State regulates a problem it is not under any obligation to regulate all phases of it or every class of acts or actors involved in it (Williamson v Lee Opt. Co., 348 US 483, 489 [1955]); on the contrary, the State may regulate partially or one step at a time without violating the 14th Amendment’s equal protection clause. (Williamson v Lee Opt. Co., supra.)


"The general rule gives way, however, when a statute classifies by race, <mask>, or natural origin. * * * [T]hese laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest. * * * Similar oversight by the courts is due when state laws impinge on personal rights protected by the Constitution.”


If the statute denied the benefits to all aliens, it would be unconstitutional under the principle enunciated in Leger, Takahashi and Yick Wo (supra). But the statute does not deny the benefits to aliens because of their <mask>. Indeed, as the facts show, the plaintiff, an alien, has already been the beneficiary of two years of assistance. The Education Law allows an alien to obtain the same higher education in the same institutions as citizens. In imposing qualifying conditions on those who seek the benefits of incentive and scholarship payments, it creates no “ invidious discrimination ”. The section demands no more of aliens and offers them no less than it does to citizens. Classifications for aid to higher education are not *419unconstitutional. Educational opportunity of the type involved here is not a right essential to a person’s liberty, or freedom of movement, or the right to essentials of life such as food, clothing, equal employment opportunity and the like, the denials of which have been held to be unconstitutional. The benefits plaintiff seeks are not mandated ‘ ‘ by rights secured by the Constitution, but are rather dependent upon a legislative decision as to how best to apply limited funds to maximize educational goals ” (McClellan v. Shapiro, 315 F. Supp. 484, 494).


By Mr. Senator Seward. I do not understand the counsel for the plaintiff in error to contend that the decision of the supreme court is erroneous in principle, if the court be correct in assuming that the case presented by the special verdict is without the provisions of the act of 1786. The supreme court are sustained by abundant authority, extensively quoted by them, as well in our own as the English courts, that at common law a naturalized citizen cannot take, when he must derive his inheritable blood through an alien ancestor, although the alien ancestor was dead at the time of descent cast; and as the act of William was not until the revision enacted in this state, the plea of <mask> was not removed by any statute. But it is contended that the present case is within the *17fifth canon of descent established by the act of 1786, 1 Rev. Laws of 1813, p. 52, 53. And it is insisted that by operation of that canon the descent was cast directly and immediately from the Intestate to Patrick Fitz Simmons, the lessor of the plaintiff. It is a question of sound construction of the statute —is important—and new.


In respect to <mask>, it has been held that the Courts of the United States have not jurisdiction of suits between aliens, but only when an alien or aliens constitute one party.and a citizen or citizens the other. (Mossman v. Higginson, 4 Dallas, 12 ; Montalet v. Murray, 4 Cranch, 46; Hodgson v. Bourbank, 5 Ib. 303; Ward v. Aredoudo, 1 Paine, 410), that is, a *281suit may be brought by an alien plaintiff against a defendant who is a citizen (Chippendale v. Dechenany, 4 Cranch, 306), and vice versa by a plaintiff who is a citizen against an alien defendant. In this case the three alien plaintiffs might sue the Railroad Company, the corporation being, for the purpose of determining the jurisdiction of the United States Court, a citizen, and the other plaintiff as a citizen of this State might sue them as a citizen of another State. Each of the parties, plaintiffs and defendants, possessing, under the construction given to this act by Chief Justice Marshall, the requisite qualifications to sue or be sued in the courts of the United States. It is insisted, therefore, that the Circuit Court of this District has jurisdiction of a suit like this brought against a citizen of another State, by plaintiffs, one of whom is a citizen of this State and the others aliens, and that such being the fact, the right of removal exists. But it does not follow, because the Circuit Court would have had jurisdiction of a suit if it had been originally brought there, that the defendants have a right to remove it there. An alien plaintiff may sue a citizen in the courts of the United States, but if he thinks proper to bring his suit in a State Court, there is no authority for removing it. The right to remove is derived exclusively from the twelfth section of the act, and it makes no provision for such a case. That section provides only for two cases.


Despite being formally excluded from joining the ranks of the legal profession throughout his life, Fujii spent much of his career using the courts to advance the rule of law in California, We do not know what more Fujii might have accomplished had he been admitted to the bar, or what others in Fujii's position might have accomplished had our laws not wrongfully excluded or deterred them from becoming lawyers. Such discriminatory exclusion was not only "a blow to [those who] aspired to become a lawyer only to have their dream deferred on account of their race, <mask>, or nationality," but also "a loss to our communities and to society as a whole, which denied itself the full talents of its people and the important benefits of a diverse legal profession." (In re Hong Yen Chang (2015) 60 Cal.4th 1169, 1175, 185 Cal.Rptr.3d 1, 344 P.3d 288.) Our Fujii opinion observed that "[t]he only disqualification urged against Sei Fujii is that of race." ( **490Fujii, supra , 38 Cal.2d at p. 733, 242 P.2d 617.) This statement rings with special relevance as we consider the motion presented on Fujii's behalf. Fujii's work in the face of prejudice and oppression embodies the highest traditions of those who work to make our society more just.


The section last referred to has been amended by chapter 261 of Laws 1874 and chapter 38 of Laws 1875, so as to enable aliens to take lands by descent from naturalized or native citizens as well as from resident aliens. But as these amendments were made after Hafner’s death, and consequently after the rights of all parties had become fixed, they may be at once dismissed. For the same reason chapter 111 of Laws of 1877, which seems to be an amplification of chapter 336 of Laws 1875 and of chapter 513 of Laws 1868, need not be considered. The three last named statutes simply relate to the confirmation of the title of citizens which may be questioned by reason of the <mask> of former owners.


5. These observations apply equally to the other fact to be made out, viz : citizenship or <mask>. In the case of Ladd agt. Tudor, before cited, the learned judge noticed the sworn petition as the first piece of testimony of a residence in Mew-Hampshire; next, that the plaintiff had in his writ described the defendant only as cormorant in Massachusetts; and lastly, observed that the plaintiff had not denied the allegation of the petition in any affidavit. I do not doubt, that the fact of citizenship is a fact which may be traversed, and if traversed, is to be inquired into and passed upon by the court, in one or other of its methods of ascertaining facts.


(1) The "rational basis” standard or minimal rationality which requires only "that the State’s action be rationally based”. (Dandridge v Williams, 397 US 471, 487.) (2) A "strict scrutiny” test which applies to "suspect” statutes. Representative "suspect” statutes would be those which discriminate on the basis of "race, <mask> and national origin” (Frontiero v Richardson, 411 US 677, 682). *821(3) Finally, a third "sliding scale” or middle ground test is evolving which heretofore has focused only on the question of "a substantial state interest” (San Antonio School Dist. v Rodriguez, 411 US 1, 98). In determining the proper standard, this court first discards the middle ground test. This is a speculative doctrine which so far seems to have been applied only in educational discrimination areas (see San Antonio School Dist. v Rodriguez, supra; see, also, Regents of Univ. of Cal. v Bakke, 438 US 265, 357, n 30 — [opn of Mr. Justice Brennan]).


These provisions have application when real estate would descend ■on a person incapable of holding the same by reason of <mask>, but our examination of this case has taught us that the alien heirs -of Joseph de Sendzemir were capable of taking title to the lands in question, all their disabilities having been removed by our ¡statute. Aside from that, however, we have no proof respecting a reasonable time to sell the land and export the proceeds.


The recital in the conveyance from Grace Cosby in 1762, is, after such a lapse of time, sufficient evidence of the fact that Governor Corby died shortly after the making of his will in 1735; although the date of the probate of that will *282held under such leases, although there had never been any actual possession of the premises in question in that suit, under the conveyance which was presumed to have been so executed. See also Beal’s Lessee v. Lynn, 6 Harr. & John. Rep. 336. The case now under consideration is certainly a much stronger one than the case of Jackson v. Lunn, from the fact that a part of the patentees were witnesses to Gov. Cosby’s will, devising the manor as having been conveyed to him by them and their associates. The fact that the owner of this part of the manor was for many years previous to his death, supposed to be insane, accounts for no claim to the premises having been made by him, and of there being no attempt to settle upon this part of the manor previous to the revolution. His sister also must have been far advanced in years at the time of his death ; as her son was old enough to be the prime minister of England in 1767. And the disability of <mask> not being, removed until 1790, accounts for the fact that she did not attempt- to exercise any acts of owership over this part of the manor during her life.


Petitioner’s motion for a restraining order pending the outcome of this action must be denied. Petitioner has failed to demonstrate that the pilot program denies the people of Richmond County equal protection under the Constitution. The constitutional guarantee of equal protection provides that no person shall be denied the equal protection of the law of this State or any subdivision thereof (see, NY Const, art I, § 11). It has long been held that there is no denial of equal protection of the laws if the differentiation made rests on some rational consideration and is not palpably arbitrary. (See, Gleason v Gleason, 26 NY2d 28.) Additionally, the challenged statute or rule must invidiously deny one class of individuals a substantial benefit available to another class. (See, People v Kennedy, 128 Misc 2d 937; People v McMillen, 80 AD2d 966.) It is also well established that where there is neither a suspect classification nor an infringement of a fundamental right, a classification will be sustained as long as there is a rational relationship between the classes established and a legitimate governmental interest which is sought to be achieved. (See, Matter of Campagnola v McGuire, 88 AD2d 577.) At bar the entire citizenship of Staten Island is not one which is traditionally deemed to be a suspect class, i.e., based on race, <mask> or nationality. (See, Matter of Joseph LL., 97 AD2d 263.) Nor has it been held that citizens have a constitutional right to fire protection. (See, Helman v County of Warren, 67 NY2d 799.) Applying the above standards to the instant case, it is clear that respondents’ decision to implement the pilot program must be upheld as rationally related to a legitimate government purpose and interest. It is beyond cavil that the health and safety of the citizenry represents a legitimate government purpose. As such, sound cost effective fire protection principles as put forth by the pilot program are neither discriminatory nor irrational and clearly further a governmental interest.


Mobile food vendors who hold multiple permits are not members of any suspect class recognized by the United States Supreme Court or New York law. Moreover, a law which regulates the right to sell food in public places does not impinge upon fundamental rights, including the right to pursue one’s livelihood. (Story v Green, 978d 60, 62, supra; Collis v Niskayuna, 178 AD2d 868, 869, supra.) Therefore, when a statute neither impinges on a fundamental right guaranteed by the Constitution nor uses a classification based on a suspect criterion such as race, nationality, <mask> or gender, the law generally will not be found to violate the Equal Protection Clause unless it has no reasonable or rational basis.- (Story v Green, 978d, at 62, supra.) The statute will be sustained if the Legislature could have reasonably concluded that the challenged classification would promote a legitimate State purpose. (Supra.)


The sister, Fanny, not being a male, took her share which was one-eighth under the act of 1874, no deposition being required of her. She was a non-resident alien' and died. In *4421878, leaving as ¡her only heir, a son. At her death the statute of 1874, as amended by chapter 38 of the Laws of 1875, was in force. Chapter 111 of the Laws of 1877 does not seem to have any bearing, .as it apparently relates only to citizens of this State, enabling them to take notwithstanding the <mask> of some ancestors. Her son and only heir, Frederick Hanham, was a citizen and resident of Great Britain. Ho provision seems to be made for the alien heir of a non-resident alien taking, and I think her share escheated upon her death. See Stewart v. Russell, 91 App. Div. 310; Stamm v. Bostwick, 129 N. Y. 48.


This general deference to legislative classifications gives way if a statute contains a classification that impinges on the short list of personal rights protected by the Constitution or a suspect classification, such as race, <mask>, or national origin.7 A right is fundamental if it is explicitly or implicitly guaranteed by the Constitution.8 And a suspect class is comprised of members that possess either an "immutable characteristic determined solely by the accident of birth,"9 or have been "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process."10 In those situations, a statute is subject to strict scrutiny and will be sustained only if it is narrowly tailored to serve a compelling state interest.11


*586The second test commonly is referred to as the "strict scrutiny” test. This test is employed if a classification is deemed to be "suspect” or if a "fundamental interest” is involved. "Identified as suspect are classifications based on <mask>, natural origin and race. Fundamental interests include voting, travel, procreation, the right of free speech, the right of a criminal defendant to appeal and perhaps, the right of privacy.” (Citations omitted.) (Alevy v Downstate Med. Center, supra, p 332.) The strict scrutiny test, as its name suggests, requires the court to ascertain whether the challenged legislation is promoting a compelling State interest.


"Where, however, a statute affects a 'fundamental interest’ or employs a 'suspect’ classification, the strict scrutiny test has been applied. That test requires that the legislative purpose be so compelling as to justify the means utilized. Identified as suspect are classifications based on <mask> (Matter of Griffiths, 413 US 717; Sugarman v Dougall, 413 US 634; Graham v Richardson, 403 US 365), national origin (Hernandez v Texas, 347 US 475; Takahashi v Fish & Game Comm., 334 US 410, 418-420), and race (Loving v Virginia, 388 US 1, supra; McLaughlin v Florida, 379 US 184, supra). Fundamental interests include voting (Dunn v Blumstein, 405 US 330; Harper v Virginia Bd. of Elections, 383 US 663), travel (Shapiro v Thompson, 394 US 618), procreation (Skinner v Oklahoma, 316 US 535), the right of free speech (Police Dept, of Chicago v Mosely, 408 US 92), the right of a criminal defendant to appeal (Williams v Illinois, 399 US 235; Griffin v Illinois, 351 US 12) and, perhaps, the right of privacy (see Roe *483v Wade, 410 US 113; Eisenstadt v Baird, 405 US 438).” (Alevy v Downstate Med. Center of State of N. Y., 39 NY2d 326, 332.)


*357The persons seeking their rights to distribution are the brothers and sisters and the descendants of deceased brothers and sisters of Dorothea Beck, the decedent herein, all of whom are citizens of the Empire of Germany. The fact of relationship of the parties to the intestate is not disputed, the sole contention being that because of the <mask> of said parties they are not entitled to participate in the division of the real estate or the surplus moneys arising from the sale thereof.


While perhaps the question was not directly decided, but rather assumed in Von Schwerdtner v. Piper (23 F. [2d] 862), it appeared that one Frederick Jonathan Von Schwerdtner, a subject of Germany, residing in 1914 in Maryland, went to Germany that year, entered the German army, and remained in Germany until his death. His last will and testament was admitted to probate in Maryland. The decedent’s wife Was named in the will as executrix, but she was disqualified on account of <mask> and administration was granted to the son, according to the opinion, “ who, having been born in this country, is a citizen of the United States.”


“No owner of a dwelling to which the benefits of this section shall be applied . . . shall directly or indirectly deny to any person because of race, color, creed, national origin, gender, sexual orientation, disability, marital status, age, religion, <mask> or citizenship status, or the use of, participation in, or being eligible for a governmentally funded housing assistance program, including, but not limited to, the section 8 housing voucher program and the section 8 housing certificate program, 42 U.S.C. 1437 et seq. . . . any of the privileges or services incident to occupancy therein” (Administrative Code § 11-243 [k] [emphasis added]). Nothing in the federal regulations governing the Section 8 voucher program “is intended to pre-empt operation of State and local laws [such as the J-51 law] that prohibit discrimination against a Section 8 voucher-holder because of status as a Section 8 voucher-holder” (24 CFR 982.53 [d]). The plain language of the J-51 law unequivocally demonstrates that J-51 was intended to prohibit owners who receive the benefits of a J-51 tax abatement from discriminating against tenants who, among other things, qualify for Section 8 rent subsidies. In Rosario v Diagonal Realty, LLC (9 Misc 3d 681 [2005], affd 32 AD3d 739 [2006], affd 8 NY3d 755 [2007]), the court was not persuaded by prior decisions which emphasized the fact that the rent-stabilized tenant was a Section 8 recipient since the inception of his or her tenancy; rather, the court found (9 Mise 3d at 704) that, if a distinction were made between tenants who were receiving Section 8 benefits from the outset of their tenancies and those who received such benefits some time thereafter, “it would create an inequitable result, by which some section 8 recipients residing in rent-stabilized apartments would have greater protections than others.” This court agrees.


Notwithstanding an employer’s exposure to certain risks under IRCA, in certain industries, such as in the demolition segment of the construction industry, that risk is insufficiently high to deter the hiring of undocumented immigrants. (See Brian Kates, Building Boom-Doggle, At the Mercy of Contractors, Daily News, May 29, 2007, at 9, col 1.) Thus, certain segments of the construction industry are replete with undocumented aliens. (See Developments in the Law — Jobs and Borders, Legal Protections for Illegal Workers, 118 Harv L Rev 2224, 2224 n 4 [Department of Labor and Immigration and <mask> Service studies find that 39% of certain construction workers were undocumented].) Given the status of the industry, it seems somewhat disingenuous for contractors and owners to seek disclosure of the status of an employee after the employee has been injured under the guise of attempting to mitigate a lost wage claim, a concern which apparently never entered their minds when the work was bid out. Indeed, in the present case, F & T could have instructed its general contractor not to subcontract with outfits who did not comply with federal regulations, and Top 8 could have insisted that all its subcontractors comply with federal regulations as well.


Section 1016.5, subdivision (a) states that prior to acceptance of a guilty plea or no contest plea to any offense punishable as a crime under state law, the court shall administer an advisement on the record to the defendant that states: "If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of <mask> pursuant to the laws of the United States." (§ 1016.5, subd. (a).) If the court fails to advise the defendant as required and the defendant shows that his guilty or no contest plea may have the consequences of deportation, exclusion, or denial of naturalization, the court on defendant's motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or no contest, and enter a plea of not guilty. (§ 1016.5, subd. (b).)


The Executive Branch has similarly applied the interdepartmental - waiver doctrine since at least the Comptroller of the Treasury’s 1899 decision in Damage to a Vessel. See 6 Comp. Dec. at 74–75; see also Replacing Property Borrowed from Another Department, 10 Comp. Dec. 222, 224–25 (1903); Ownership of Public Property, 22 Comp. Dec. 390, 390 (1916). Executive agencies have considered and applied the doctrine when promulgating regulations, guidance, and legal opinions. See 32 C.F.R. § 536.27(g) (subsection of Department of the Army regulations about claims against the United States, stating that “[n]either the U.S. government nor any of its instrumentalities are proper claimants due to the interdepartmental waiver rule”); U.S. Dep’t of Energy, DOE 4300.1C, Real Property Management (June 28, 1992) (agency guidance noting that “[t]he Interdepartmental Waiver Doctrine should be considered whenever there is a possibility of outgranting property to other Federal agencies”); Office of General Counsel, Immigration & <mask> Service, U.S. Dep’t of Justice, Missing GSA Painting, Op. No. 93-29 (May 5, 1993) (describing the doctrine as “the substantive law of the United States”). The interdepartmental-waiver doctrine thus establishes the general default rule for allocating the costs of repairs among departments and agencies.


The court also asked Gonzalez if he read and understood his change of plea form. Gonzalez answered, "Yes." Gonzalez's change of plea form appears in the record. As pertinent here, the form states: "I understand that if I am not a citizen of the United States a plea of Guilty or No Contest can or will result in removal or deportation, exclusion from admission to this country, and denial of <mask>." Gonzalez's initials appear in the box next to that statement.


Section 5428 makes it unlawful for any person (1) to knowingly use any certificate of <mask> procured through fraud or by false evidence, or issued by the clerk or any other officer of the court without any appearance and hearing of the applicant in court and without lawful authority; or (2) to falsely represent himself to be a citizen of the United States, without having been duly admitted to citizenship, for any fraudulent purpose whatever.


But I have my doubts whether the final record of <mask> is not conclusive upon me. I feel the force of the argument that if it is so, foreigners may be admitted as citizens in fraud of the law, but that can be remedied by the court, in wMch the proceeding was had, correcting its own record. Bnt the cases are very strong that in tMs court that record must be regarded as conclusive. In Campbell v. Cordon (6 Cranch), it was decided that the naturalization was valid, though the record contained no adjudication of his admission, nor that he had behaved as a man of good moral character. Justice Washington says, “it must be presumed that the court before whom the oath was taken was satisfied; that the oath when taken amounts to a judgment of the court.” In Stark v. Chesapeake Insurance Co. (7 id.), it is reported to have been decided that the judgment admitting the citizen is conclusive that all the prerequisites have been complied with.