Second Department Reversal - Same Sex Domestic Partner May not Pursue Wrongful Death Claim as a Spouse
December, 2005
In the CM Report, Volume 2 (2003), we reported on the Supreme Court of Nassau County’s decision in Langan v. St. Vincent’s Hospital of New York, 196 Misc. 2d 440, 765 N.Y.S.2d 411 (2003). In Langan, the trial court held as a matter of first impression that a same-sex domestic partner may pursue a wrongful death claim as a spouse under New York’s wrongful death statute (EPTL §5-4.1). That decision has now been reviewed by the Appellate Division – Second Department, which reversed over a two-justice dissent. 802 N.Y.S.2d 476 (2d Dep't 2005).
Plaintiff and decedent met in 1986 when plaintiff was 25 and decedent was 26. They began living together eight months later and lived together until decedent’s death at the age of 41. They provided each other with health care proxies; each was the sole beneficiary on the other’s life insurance policy; they were joint owners on homeowners’ insurance; and they were the sole legatees under each other’s wills. They also participated in “all aspects of family life” with their respective families, including birthdays, religious events, holidays, dinners and vacations.
Effective July 1, 2000, a Vermont statute became effective which legally sanctioned homosexual unions in the same manner as marriage. The civil union required the same solemnization as a marriage and created a spouse for all purposes under Vermont state law. Within four months after the statute became effective, plaintiff and decedent traveled to Vermont and were joined in a union solemnized by a justice of the peace; approximately 40 family members and friends attended the ceremony. Plaintiff and decedent exchanged vows, including taking each other “to be my spouse,” exchanged wedding bands, and later purchased a house.
Decedent died after being struck by an automobile in midtown Manhattan. He was taken to the defendant hospital with a broken leg and underwent two surgeries. He died while in the hospital from an embolus of “unknown origin.” Plaintiff sued defendant for wrongful death and medical malpractice, claiming to be a spouse under New York’s wrongful death statute. Plaintiff and defendant then cross-moved for partial summary judgment on the legal question of whether plaintiff was entitled to bring an action as a “spouse.”
The trial court denied defendant’s motion for summary judgment and found that plaintiff was a “spouse” for purposes of New York’s wrongful death statute. The court reasoned that plaintiff and decedent complied with the Vermont civil union law and that recognition of their union did not violate New York public policy. Because there was no statutory definition of “spouse” in the wrongful death act, the trial court looked to a definition under a section which addresses and delineates when a surviving spouse is disqualified from recovery under the act. (EPTL §5-1.2) The court noted that the categories of disqualified surviving spouses include those who are separated at the time of death, had abandoned the decedent at the time of death, or were undergoing a divorce. From this language, the court concluded that the determinative inquiry for defining a “spouse” is “whether the marriage is intact and functioning” at the time of decedent’s death, and not “whether a spouse is a man or woman.” In this case, the court concluded, the civil union between plaintiff and decedent was “intact and functioning” at the time of decedent’s death such that plaintiff was a “spouse” under the New York wrongful death statute.
A three-justice majority of the Second Department reversed and dismissed plaintiff’s wrongful death claim. The majority recognized that plaintiff and decedent “opted for the most intimate sanctification of their relationship then permitted, to wed, a civil union pursuant to the laws of the State of Vermont.” It found, however, that a Vermont civil union is not a marriage. “[T]he Vermont Legislature went to great pains to expressly decline to place civil unions and marriage on an identical basis,” the majority wrote. “While affording same-sex couples the same rights as those afforded married couples, the Vermont Legislature refused to alter traditional concepts of marriage (i.e., limiting the ability to marry to couples of two distinct sexes)”. The majority noted that decedent did not identify himself as “married” when he was admitted to the defendant hospital and that plaintiff likewise did not describe himself as “married” in filing the various probate papers in the action. “In essence,” the majority concluded, “this court is being asked to create a relationship never intended by the State of Vermont in creating civil unions or by the decedent or the plaintiff in entering into their civil union.” Recognizing the apparent inequity of its result, the majority then called upon the State Legislature to amend the wrongful death act to address the issue:
The circumstances of the present case highlight the reality that there is a substantial segment of the population of this State that is desirous of achieving state recognition and regulation of their relationships on an equal footing with married couples. There is also a substantial segment of the population of this State that wishes to preserve traditional concepts of marriage as a unique institution confined solely to one man and one woman. Whether these two positions are not so hopelessly at variance (to all but the extremists in each camp) to prevent some type of redress is an issue not for the courts but for the Legislature. Unlike the court, which can only rule on the issues before it, the Legislature is empowered to act on all facets of the issue including, but not limited to, the solemnization and creation of such relationships, the dissolution of such relationships and the consequences attendant thereto, and all other rights and liabilities that flow from such a relationship. Any contrary decision, no matter how circumscribed, will be taken as judicial imprimatur of same-sex marriages and would constitute a usurpation of powers expressly reserved by our Constitution to the Legislature.
The two-justice dissent reasoned that the purpose of the wrongful death statute is “to make a culpable tortfeasor liable for fair and just compensation to those who, by reason of their relationship to decedent, suffer economic injury as a result of decedent’s death.” Because plaintiff and decedent entered into a “committed, formalized, and state-sanctioned relationship” which required each to be legally responsible for the financial support of the other, the dissent found that the plaintiff suffered economic injury as a result of decedent’s death for which he was entitled to seek compensation. To hold otherwise, the dissent reasoned, discriminates against plaintiff on the basis of his sexual orientation, and there is no rational relationship between the governmental purpose promoted by a wrongful death law and the classification of wrongful death plaintiffs on that basis.
Pursuant to CPLR 5601(a), plaintiff may now seek review by the Court of Appeals as a matter of right because there was a two-justice dissent. We will continue to monitor this changing area of the law and update our readers as new developments occur. •
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