
    In the Matter of William Figueroa, Appellant, v Harry I. Bronstein, as Director of the New York City Department of Personnel and Chairman of the New York City Civil Service Commission, et al., Respondents.
    Argued January 13, 1976;
    decided February 12, 1976
    
      Michael D. Hampden and Charles J. Tejada for appellant.
    I. The regulation complained of, which precludes applicants 32 years and older from taking a competitive examination for the position of correction officer, contravenes the State constitutional mandate of article V (§ 6). (Palmer v Board of Educ. of Union Free School Dist. No. 2, Town of Geddes, 276 NY 222; Matter of Carow v Board of Educ. of City of N. Y., 272 NY 341; Hurley v Board of Educ. of City of N. Y., 270 NY 275; Matter of Barthelmess of Cukor, 231 NY 435; Hale v Worstell, 185 NY 247; Matter of McNamara v Holling, 282 NY 109; 
      Matter of Williams v Morton, 297 NY 328; Matter of Fink v Finnegan, 270 NY 356; Matter of Andresen v Rice, 277 NY 271; Matter of Maye v Lindsay, 69 Misc 2d 276, 41 AD2d 127, 33 NY2d 552, 414 US 1069.) II. The regulation in question, by establishing a class of individuals who are precluded from taking a competitive examination solely by reason of their age, denies that class equal protection of the laws and due process of law under the State and Federal Constitutions. (McGowan v Maryland, 366 US 420; Morey v Doud, 354 US 457; Dunn v Blumstein, 405 US 330; Shapiro v Thompson, 394 US 618; San Antonio School Dist. v Rodriguez, 411 US 1; Seaman v Fedourich, 16 NY2d 94; Dorsey v Stuyvesant Town Corp., 299 NY 512; Matter of Andresen v Rice, 277 NY 271.) III. The arbitrary use of age 32 to classify out applicants is prohibited by section 54 óf the Civil Service Law.
    
      W Bernard Richland, Corporation Counsel (Murray L. Lewis and L. Kevin Sheridan of counsel), for respondents.
    I. Article V (§ 6) of the New York State Constitution does not bar age limitations being placed on civil service positions. The Civil Service Commission, in conformity with article V (§ 6) and the authority vested in it by the Civil Service Law (§ 54), imposed a reasonable maximum age limitation on the position of correction officer in the City of New York. (People ex rel. Sweet v Lyman, 157 NY 368; Matter of Ricketts, 111 App Div 669; Matter of Barthelmess v Cukor, 231 NY 435; People ex rel. Moriarty v Creelman, 152 App Div 147; Matter of Loud v Ordway, 219 NY 451; Matter of Ryan v Finnegan, 166 Misc 548, 253 App Div 713; Matter of Deodati v Kern, 280 NY 366; People ex rel. Schau v McWilliams, 185 NY 92.) II. The fixing by the Civil Service Commission of a maximum age for the position of correction officer was not violative of the due process and equal protection clauses of the State and Federal Constitutions. (Park Ave. Clinical Hosp. v Kramer, 48 Misc 2d 826, 26 AD2d 613, 19 NY2d 958; Village of Belle Terre v Boraas, 416 US 8.)
   Per Curiam.

We hold that the action of the State Civil Service Commission establishing 32 years as the maximum age for application for appointment as correction officer is not violative of constitutional provision.

Section 6 of article V, of our State Constitution provides in part: "Appointments and promotions in the civil service of the state and all of the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive [with exceptions not here applicable]”. This mandate in favor of appointment and promotion according to merit and fitness does not, however, preclude the adoption of age requirements. (Matter of Deodati v Kern, 280 NY 366; Matter of Thomas v Kern, 280 NY 236, 244.) Nothing in Matter of Maye v Lindsay (69 Misc 2d 276, revd 41 AD2d 127, revd 33 NY2d 552, cert den 414 US 1069) holds to the contrary.

Nor does the adoption of age requirements necessarily offend the equal protection clause. Because a right finds expression in the language of our State Constitution, it does not follow that by that circumstance alone it is a right entitled to special constitutional protection, statutory limitation of which must be examined under the strict scrutiny test on claims of denial of equal protection. (Montgomery v Daniels, 38 NY2d 41, 59-61.) Appellant advances no other theory which would require application of the strict scrutiny test or anything approaching that standard (p 61). Thus, notwithstanding our constitutional provision with respect to appointment and promotion in the civil service, legislative classification of rights thereunder will be upheld if there is a rational basis therefor (cf. pp 61-63).

Our Legislature by explicit provision of section 54 of the Civil Service Law has recognized the right of civil service commissions to adopt "reasonable minimum or maximum age requirements for open competitive examinations for positions such as policemen, firemen, prison guard, or other positions which require extraordinary physical effort, except where age limits for such positions are already prescribed by law.” Pursuant thereto, no age limits being otherwise prescribed by law, the State Civil Service Commission established 32 years as the maximum age for application for position of correction officer.

In our view, considering the duties and responsibilities of correction officers, often calling for the instantaneous availability, if not the use, of "extraordinary physical effort”, in the circumstances of their performance of service, it is reasonable to set a maximum entry age of 32 years. Not only is it necessary to assure physical qualification on entry into the correction service, it is also desirable to anticipate continuing qualification for an extended period of service. Thus, it was not irrational either to establish an age requirement or to fix that age at 32 years. It is no infirmity that another age might also have rationally been selected (Montgomery v Daniels, supra, p 64).

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in Per Curiam opinion.

Order affirmed, without costs.  