Spring 2006 appellate brief assignment   west v. mercy hospital - appendix
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Spring 2006 appellate brief assignment   west v. mercy hospital - appendix Spring 2006 appellate brief assignment west v. mercy hospital - appendix Document Transcript

  • APPENDIX West v. Mercy Hospital of New York Docket No. 06-0001-cv TABLE OF CONTENTS PageMotion for Partial Dismissal 2Affidavit of Ralph Kessler 5Memorandum in Opposition to Motion for Partial Dismissal 8Affidavit of Jerry West 38District Court’s Memorandum and Order 52Notice of Appeal 66 Appendix Page 1
  • IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORKJERRY WEST, in his Capacity as Executor )of the Estate of BRYAN KESSLER, Deceased, )and JERRY WEST, Individually, ) ) Plaintiffs, ) ) ) v. ) Index No: 11618/2005 ) )MERCY HOSPITAL OF NEW YORK, ) ) Defendant. ) ) MOTION FOR PARTIAL DISMISSAL Defendant Mercy Hospital of New York (“Mercy”) hereby moves to dismissCount II of the complaint filed by plaintiff Jerry West, Individually (“Plaintiff”),whereby he claims he is entitled to recover for wrongful death pursuant to NewYork’s Estate, Probate, and Trust Law. Mercy asserts that Plaintiff has failed to statea claim upon which relief may be granted, see Fed. R. Civ. P. 12(b)(6), because he isdoes not qualify as a “distributee” under the New York wrongful death statute. In support of this Motion for Partial Dismissal, Mercy submits the Affidavitof Mr. Ralph Kessler, the surviving father of the decedent. Mercy contends that Mr.Kessler, not Plaintiff, is the proper “distributee” entitled to seek relief under thestatute. Decedent was never married in the traditional sense of the word, and he hadno children. His closest blood relatives were his parents and siblings. Appendix Page 2
  • Mercy respectfully asserts that the New York courts have never recognized asame-sex couple as a legitimate marriage for purposes of the probate statutes.Admittedly, Plaintiff and the decedent purported to enter into a “marriage” inMassachusetts in 2004. However, Plaintiff’s complaint does not identify any legalauthority in New York to support his claim that the Massachusetts marriage isentitled to recognition in New York. In the absence of such authority, Plaintiffcannot recover for wrongful death as a matter of law. He was not a blood relative ofthe decedent; nor was he the lawful “spouse” of the decedent for purposes ofrecovery under the New York wrongful death statute. Moreover, because West andKessler could not have entered into a lawful marriage in New York, theirMassachusetts marriage is not entitled to recognition by New York law. Finally, federal law preempts plaintiff’s wrongful death claim. The Defense ofMarriage Act, 28 U.S.C. § 1738C, specifically provides, “No State . . . shall . . . giveeffect to any public act . . . respecting a relationship between persons of the same sexthat is treated as a marriage under the laws of such other State, . . . or a right or claimarising from such relationship.” New York is not required to give full faith and creditto the Massachusetts marriage. Mercy therefore respectfully prays for an order dismissing Count II ofPlaintiff’s complaint for wrongful death, together with attorney’s fees and costs. Appendix Page 3
  • Respectfully submitted, ____________________________ Ronald Dewgoode N.Y. Bar No. 13187 Dewgoode, Goforth & Prosper 735 E. 3rd Ave. New York, N.Y. 00103 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this Motion for PartialDismissal was served on the following person by depositing a copy in the UnitedStates Mail, first class postage prepaid, on the 16th day of January 2005, addressed to: David Barrett, Esq. Grynn & Barrett, PC 419 Park Avenue South, 2nd Floor New York, NY 10016 _________________________ Ronald Dewgoode Dewgoode, Goforth & Prosper 735 E. 3rd Ave. New York, N.Y. 00103 Appendix Page 4
  • IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORKJERRY WEST, in his Capacity as Executor )of the Estate of BRYAN KESSLER, Deceased, )and JERRY WEST, Individually, ) ) Plaintiffs, ) ) ) Index No: 11618/2005 v. ) AFFIDAVIT ) )MERCY HOSPITAL OF NEW YORK, ) ) Defendant. ) )State of New York ) ) SS:County of New York ) AFFIDAVIT OF RALPH KESSLER RALPH KESSLER, having been duly sworn, avers as follows: 1. I am the father of Bryan Kessler, the decedent on whose behalf JerryWest has filed this personal injury action. In addition, Jerry West seeks recovery forwrongful death under the applicable New York statute. 2. I submit this affidavit in support of the Motion for Partial Dismissalfiled by defendant Mercy Hospital of New York. 3. I loved my son deeply, and so did his mother, Ruth Kessler. We werean extremely close-knit family throughout Bryan’s life. Appendix Page 5
  • 4. Bryan met Jerry West sometime in the late summer or early fall of1993. Bryan’s mother and I did not know anything about the relationship untilseveral months later, when Bryan announced that they were moving in together. 4. Bryan’s mother and his siblings were shocked and hurt by the news oftheir relationship. As time went on, however, we understood that their affection foreach other was genuine, and it became clear that they wanted to commit their lives toone another. We accepted Jerry as a member of the family as best we could out oflove for our son and our desire for his happiness. 5. In early 2004, Bryan told us about his and Jerry’s plans to go toMassachusetts to be married. He explained that it was important to Jerry toformalize the relationship in this fashion, and that Massachusetts was the only state inthe country that would permit them to have a legal marriage ceremony in every senseof that word. 6. Because we cared so deeply for our son, we agreed to attend thewedding ceremony in Provincetown, Massachusetts. 7. After the wedding, Bryan and Jerry returned to their home in NewJersey. They never intended to remain in Massachusetts, and in fact, they leftMassachusetts within 24 hours of the ceremony. They have not returned toMassachusetts since. 8. I considered Jerry and Bryan to be lifetime partners, but they were not“spouses.” Spouses must be of the opposite gender. Jerry and Bryan are bothmales, so they cannot be “spouses,” at least not in my opinion. Appendix Page 6
  • FURTHER AFFIANT SAYETH NAUGHT. ___________________________ RALPH KESSLERSworn to before me by Ralph Kessler on this 16th day of ___January___, 2005. _____________________________________ Notary PublicMy Commission Expires: May 2, 2005 Appendix Page 7
  • David Barrett, Esq.Grynn & Barrett, PC419 Park Avenue South, 2 Floor ndNew York, NY 10016 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORKJERRY WEST, in his Capacity as Executor )of the Estate of BRYAN KESSLER, Deceased, )and JERRY WEST, Individually, ) ) Plaintiffs, ) Index No: 11618/2005 ) Judge Donald Gumper v. ) )MERCY HOSPITAL OF NEW YORK, ) ) Defendant. ) ) MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S MOTION FOR PARTIAL DISMISSAL AND IN SUPPORT OF PLAINTIFF’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT Preliminary Statement Plaintiff Jerry West, as Executor of the Estate of Bryan Kessler (deceased) and inhis individual capacity (“Jerry”), by his attorney David Barrett, respectfully submits thismemorandum of law in opposition to the motion of defendant Mercy Hospital of NewYork (“defendant” or “Mercy Hospital”) for partial dismissal for failure to state a claimpursuant to Fed. R. Civ. P. 12(b)(6). Because defendant’s motion relies on evidentiarymaterials, plaintiff requests that it be deemed one for partial summary judgment. SeeFed. R. Civ. P. 12(b). In addition, plaintiff hereby files this cross-motion for partialsummary judgment pursuant to Fed. R. Civ. P. 56(a), and respectfully submits this Appendix Page 8
  • memorandum of law in support of that motion as well. Mercy Hospital has been accused of medical malpractice that caused the death ofBryan Kessler (“Bryan”). Rather than file an answer or respond in any way to thesubstance of the serious medical malpractice charges against it, defendant asks this Courtto deprive Jerry of the ability to continue to receive the enormous financial support thathe had been receiving from Bryan throughout their more than 15 years together in astable, committed, and loving life partnership, even if defendant’s malpractice is proven. Defendant’s motion should be denied for three reasons, any one of which wouldbe sufficient standing alone. First, New York’s wrongful death statute allows recoveryby “spouses,” and Jerry and Bryan were spouses as a result of entering into a lawfulmarriage in Massachusetts. Regardless of gender, parties to a Massachusetts marriage are“spouses,” with all the same legal responsibilities, benefits, and protections as are grantedto spouses in a traditional marriage. Second, even if New York were not to recognize automatically a Massachusettsspouse as a spouse under New York law, New York should respect the reality of Jerryand Bryan’s lengthy, committed relationship, which was one of treating each other andbeing recognized by everyone else as each other’s spouses for more than eleven years. Third, for the state to deny Jerry and Bryan the benefits of the wrongful deathstatute because they were married in Massachusetts and not in New York would violateequal protection as guaranteed by the New York State Constitution. Defendant asks this Court to ignore that Jerry and Bryan legally becamespouses; to ignore that their family, friends, work colleagues, and virtually everyone Appendix Page 9
  • else who knew them (including the staff at Mercy Hospital) recognized them as full-fledged spouses; and to ignore their eleven-year committed life partnership until deathparted them. Defendant requests that this Court deny Jerry and Bryan’s civil rights andgive a windfall to a tortfeasor, in violation of New York’s public policy underlying thewrongful death statute as well as New York’s longstanding public policy againstdiscrimination, specifically including sexual orientation discrimination. Defendant’smotion should be denied, and plaintiff’s motion should be granted. Factual BackgroundA. Jerry and Bryan Took Every Step Possible to Protect Each Other, Including Becoming Spouses Pursuant to Massachusetts’ Marriage Law. For over eleven years, Jerry and Bryan were mates and spouses in a loving,stable, and committed life partnership. Affidavit of Jerry West, dated January 31,2005 (“West Aff.”), ¶ 2. They met on September 14, 1993, when Bryan was 32and Jerry was 27. Eight months later, they moved in together, and they livedtogether as a couple in a committed life partnership for the rest of Bryan’s life.They loved each other as deeply as any two people can love, and they dideverything that they could to formalize, legalize, and protect their relationship andtheir commitment to each other. West Aff. ¶¶ 2-3. 1. Jerry And Bryan’s Marriage as Spouses. By Spring 2004, the couple had been together for almost eleven years. A fewweeks before Massachusetts’ law took effect authorizing same-gender marriages, Bryanasked Jerry whether he would marry him. Jerry enthusiastically agreed to do so. As alawyer, Bryan fully understood the legal implications of entering into a marriage inMassachusetts, and once he explained them in detail to Jerry, both were eager finally to Appendix Page 10
  • obtain legal recognition of their relationship as spouses, with all that entails. West Aff.¶¶ 4-5. On May 19, 2004, the couple had a formal wedding in Provincetown,Massachusetts. West Aff. ¶¶ 8-12. At the wedding ceremony, which wasvideotaped and witnessed by a local magistrate and approximately forty of thecouple’s family members and friends, each took identical vows to the other,stating: I [Bryan /Jerry], take you [Jerry/Bryan], to be my lawful wedded spouse, to have and to hold from this day forward, for better, for worse, for richer, for poorer, to love and to cherish, so long as we both shall live.West Aff. ¶ 11. After the couple exchanged vows, they exchanged wedding bands andsaid, “With this ring, I marry you.” West Aff. ¶ 12. It was always Jerry and Bryan’s understanding that, by marrying inMassachusetts, each had taken on the same legal responsibilities, and likewise had thesame legal protections and benefits, as spouses in a traditional marriage. For them, it waslegal recognition of the loving and committed life partnership that they already had beensharing for over a decade. West Aff. ¶ 12. 2. Other Steps Jerry and Bryan Took To Formalize, Legalize, And Protect Their Relationship and Each Other. As a lawyer, Bryan had long been concerned about the couple’s lack oflegal protections in the absence of being legal spouses. In 1998, Jerry andBryan executed health care proxies to ensure that each would be able to makehealthcare decisions for the other in case of any emergency. West Aff. ¶ 38. In1999, each purchased life insurance for the first time in their lives, and each Appendix Page 11
  • designated the other as “primary” and “direct” beneficiaries of the lifeinsurance policies. West Aff. ¶ 39. The couple’s homeowners’ insurancepolicy, in listing them jointly, evidenced that they were joint owners of all theirproperty. West Aff. ¶ 40. Likewise, they are jointly named in their PersonalLiability Umbrella Policy, evidencing joint and intermingled financialobligations. West Aff. ¶ 41. In December 1999, just before leaving on a tripfor Iceland, the couple made out wills naming each other sole Beneficiaries andExecutors of each other’s estates. West Aff. ¶ 42. At different times in their relationship, Jerry and Bryan each tookgreater or lesser responsibility for their overall expenses, depending on theirrespective incomes, and they were financially interdependent. West Aff. ¶ 44.B. Jerry and Bryan Treated Each Other as Spouses and were Recognized as Each Other’s Spouse by Family, Friends, and Colleagues. 1. History of the Couple’s Committed Life Partnership and Marriage. When they first met in 1993, Bryan was a young lawyer, a 1986 graduate of CaseWestern Reserve Law School. After graduation, he lived in Eastchester, New York,commuting daily to work at a small Manhattan law firm. Jerry was just getting started asan insurance claims representative, living in Prospect Park, New Jersey. West Aff. ¶ 13. The couple moved in together in July 1994, and continued to live together untilBryan’s untimely death. Because Bryan was a lawyer with a Manhattan law firm, hisincome was substantially greater than Jerry’s, and he paid almost all of the couple’s bills,including their rent, for the first several years. West Aff. ¶¶ 15-16. In September 1995, Bryan took a new job as a commercial litigation associatewith the Manhattan office of Pell, Mell & Bewilder, where he continued to work until the Appendix Page 12
  • spring of 1998. During Bryan’s nearly three years working at Pell, Mell & Bewilder, heintroduced Jerry to many of his colleagues as his life partner, and the couple becamefriends with several of the firm’s lawyers. West Aff. ¶¶ 17-18. Gradually, Jerry and Bryan’s respective families became more accepting of theirrelationship, and eventually came to embrace them as spouses and members of the other’sfamily. West Aff. ¶ 19. Living together in a loving and committed life partnership, thecouple saw Jerry’s parents, who lived in Buffalo, New York, about once a year. WestAff. ¶ 20. Until Bryan’s death, Bryan and Jerry often invited Bryan’s family over fordinner, and they spent many major holidays together. Although Jerry was raisedCatholic, he always enjoyed spending the Jewish holidays with Bryan’s family, and wasglad that they welcomed him for these and many other occasions. West Aff. ¶ 21-22. In April 1998, Jerry was offered a management position in Saddle Brook, NewJersey, that he hoped might lead to becoming a full-fledged independent agent. Bryanand Jerry both saw this as an important opportunity, so we moved to Saddle Brook.West Aff. ¶ 25. Around the time of that move, Bryan left Pell, Mell & Bewilder andbegan working as a sole practitioner. Over the next 6 1/2 years until his death, asBryan continued his litigation practice, he also spent an increasing amount of timehelping Jerry succeed in his insurance business. Bryan’s contributions wereenormously valuable, and working together, they became a family business. West Aff.¶ 26. After Jerry became a trainee agent in July 2000, Bryan was instrumental inhelping them obtain enough business as an insurance agency and build their family Appendix Page 13
  • business. Moreover, Bryan was a quick study, and by December 2000, he becamelicensed as a “sub-agent” to sell all lines of insurance coverage – automobile, fire, life,and health. He was the agency’s “marketing guru,” helping the couple to obtain businessthat Jerry never would have been able to obtain on his own. Bryan’s legal knowledge andexperience was also extremely valuable to the couple’s agency in many differentcontexts. West Aff. ¶¶ 29-35. Most important to Jerry and Bryan was their spousal partnership. Each was therefor the other, in the best of times, the worst, and all the ones in between. When Bryan’smaternal uncle died suddenly and unexpectedly, Jerry grieved with him and was a crucialsource of support, not just to Bryan but to his entire family. West Aff. ¶¶ 45-46. Because Jerry and Bryan for many years had been very close to each other aswell as to each other’s families, their marriage ceremony in May 2004 was theculmination, formal expression, and legalization of the long-existing reality of theirrelationship as spouses. West Aff. ¶ 12. 2. Bryan’s Leg Injury, Hospitalization, and Sudden Death. Bryan was hit by a car and was taken to Mercy Hospital, on ManhattanIsland, on November 12, 2004. At that time, he asked the hospital to call only oneperson – his spouse Jerry. Jerry in turn notified Bryan’s family. West Aff. ¶¶ 47-49.When Jerry arrived at the hospital, Bryan was on his way into surgery. His brotherElliot, who works in Manhattan not far from Mercy Hospital, had arrived a littleearlier. Elliot gave Jerry a handwritten note from Bryan. It read: Appendix Page 14
  • Jerry: I’m going under. I haven’t had a chance to see you. I love you. I’ve made my life in your heart. BryanWest Aff. ¶¶ 49-50. When Jerry told the staff at the hospital that he was Bryan’s life partner, they lethim go up to the operating room to meet the surgeon and the anesthesiologist. Like anyspouse, Jerry helped with making health care decisions, like what kind of anesthesia Jerryshould get. Indeed, throughout Bryan’s remaining time alive, Mercy Hospital treatedJerry as the spouse that he is. West Aff. ¶¶ 51-52. When Bryan came out of surgery, still groggy from the anesthesia, his first wordsupon seeing Jerry were: “Hello, sweetheart.” West Aff. ¶ 53. Jerry stayed with Bryanin the hospital until approximately 2 a.m. that night. West Aff. ¶ 53-54. On November 13 and November 14, Jerry again spent the day by Bryan’s side.West Aff. ¶¶ 55-62. On November 14, Bryan underwent a second surgery. After thesurgery, around midnight, when Bryan was wheeled into his hospital bedroom, Jerry waswaiting for him. Jerry did everything he could to make Bryan comfortable, includinghelping him with his glasses, brushing his teeth, and washing his face. Jerry then toldBryan that he would see him the next day and kissed him goodnight. Bryan said,“Goodnight, sweetheart.” West Aff. ¶¶ 58-62. On November 15, at 7:15 a.m., Jerry was awakened by his ringing telephone. Thecall was from Dr. Steven Touliopoulos of Mercy Hospital. To Jerry’s complete shock,disbelief, and horror, Dr. Touliopoulos informed him that Bryan had “expired” that Appendix Page 15
  • morning. Jerry’s world was suddenly and completely shattered by this horrifying news.Overcome with grief, he sat on the living room stairs and cried, just as Bryan had donewhen he heard his uncle had died. West Aff. ¶ 63. Jerry was the first and only one that Mercy Hospital called with this news. Evenin Bryan’s death, until this motion that they have now filed against him, Mercy Hospitaltreated Jerry as Bryan’s spouse. West Aff. ¶¶ 63-64. Jerry has never been closer to anyone than he was to Bryan. The couple hadplans, goals, and dreams that Jerry will never be able to fulfill. Jerry misses everythingabout Bryan, every moment of his life. He misses Bryan saying every morning “twomore minutes,” after the alarm rings, and he misses seeing Bryan still asleep in bed 30minutes later. He misses Bryan’s love, affection, and caring, and he misses giving allthose things back to Bryan. Every night, Jerry still waits for Bryan to walk through thedoor, the way he would every night, hug Jerry, and say to their dogs, “Hellozens to theSnarkies!” West Aff. ¶¶ 70-71. Jerry buried Bryan with Jerry’s tears on Bryan’s face, and the ring that Jerry gavehim at their wedding placed on Bryan’s heart. As Bryan wrote in his final note to Jerry,he and Jerry lived in each other’s hearts, and Bryan will continue to live in Jerry’s heart,forever. West Aff. ¶ 72. PROCEDURAL BACKGROUND Defendant has moved for partial dismissal of plaintiff’s claim for wrongful death,which seeks to recover for pecuniary injury to Jerry as Bryan’s spouse.1 Because 1 Defendant effectively concedes that regardless of the outcome of this motion,this case will continue, because Bryan’s mother and father, Ruth and Ralph Kessler, are Appendix Page 16
  • defendant has submitted documentary evidence as well as an affirmation regarding Jerryand Bryan’s relationship, and plaintiff is now responding in kind with documents andaffidavits, defendant’s motion for partial dismiss should be deemed a motion for partialsummary judgment. Fed. R. Civ. P. 12(b). In addition, plaintiff hereby cross-moves forpartial summary judgment. Fed. R. Civ. P 56(a). Based on the undisputed facts, thisCourt should issue a judgment recognizing Jerry as Bryan’s surviving spouse, who isentitled to recovery and distribution under New York’s wrongful death law. ARGUMENT AND AUTHORITIESI. Defendant’s Motion to Dismiss Should be Treated as a Motion for PartialSummary Judgment and Denied, and Plaintiff Should be Granted Partial SummaryJudgment. If a party’s motion to dismiss makes reference to evidentiary materials, as doesdefendant’s motion here, the court should treat the motion as one for summary judgment.Fed. R. Civ. P. 12(b). The court need not provide the parties with additional notice that amotion to dismiss will be treated as one for summary judgment when the parties chart acourse for summary judgment through the submission of documentary evidence andaffidavits, or when the question presented is a purely legal one. Both grounds are present here: defendant has submitted documentary evidenceand an affirmation concerning the relationship between Jerry West and Bryan Kessler,and plaintiff is responding in kind. Moreover, defendant has not refuted, nor can it, thefact of Jerry and Bryan’s Massachusetts marriage, nor the fact of their more than 11-yearentitled to recover under the wrongful death statute. Appendix Page 17
  • committed life partnership. This Court is therefore left with a pure question of law as towhether either the Massachusetts marriage, or the nature of the couple’s committed lifepartnership, or both considered together, are sufficient to deem Jerry a surviving spouseentitled to distribution under New York’s wrongful death law. A third exception to the notice requirement exists where one or both partiesrequest that the court treat the dismissal motion as one for summary judgment. PlaintiffJerry West hereby requests that this Court treat defendant’s motion as one for summaryjudgment, based on the evidentiary material submitted. On a motion for summaryjudgment, the court must accept as true the opposing party’s evidence and any evidenceof the movant that favors the opposing party. Here, in ruling on defendant’s motion, allpleadings and available evidence must be construed in the light most favorable to Jerry,as nonmoving party. If this Court does not convert the pending motion into one for summary judgment,the standards for considering a motion to dismiss are even more deferential to plaintiff:the pleadings must be construed in the light most favorable to the plaintiff, whoseallegations contradicting the defendant’s documentary evidence must be accepted as true. In any event, the undisputed evidence establishes that Jerry and Bryan enteredinto a marriage, making them legal spouses pursuant to Massachusetts law; that theylived their lives for 11 years as spouses; and that they were recognized by family, friends,and work colleagues as spouses. Jerry is therefore entitled to partial summary judgment,permitting him to proceed, as Bryan’s spouse, with his wrongful death action againstMercy Hospital. Appendix Page 18
  • II. The Massachusetts Marriage Makes Jerry a Surviving “Spouse” Entitled toRecover Under New York’s Wrongful Death Law. Defendant has confused the issues on this motion by raising a slew of red herringsconcerning the legality of same-gender marriage in New York State and whether NewYork could refuse to recognize same-gender marriages performed in other states underthe Federal Defense of Marriage Act. None of this whatsoever is relevant. Rather, what is relevant is that Jerry is a surviving “spouse,” entitled torecovery and distribution of damages pursuant to New York’s wrongful death law.New York has consistently recognized “spousal” status lawfully created in a sisterstate or foreign nation, regardless of whether those spouses became so in the way onewould in New York, and even if the spouses could not have been married in NewYork. The word “marriage” is nowhere to be found in the wrongful death statute.Defendant’s analysis, which focuses on whether Jerry and Bryan could have marriedin New York, therefore misses the mark entirely. Rather, Jerry and Bryan’s status asspouses, by virtue of their Massachusetts marriage, should be recognized under NewYork law, and Jerry’s wrongful death action should be permitted to proceed. A. New York Recognizes Spousal Unions if Legal in the State Established, Whether or Not Permissible if Contracted in New York. New York courts generally recognize spousal unions that were validlycreated in sister states and foreign nations. So-called “common-law marriages,”pursuant to New York statute, are not recognized as marriages at all in New York,and cannot be established in New York. See N.Y. Dom. Rel. Law § 11. “It haslong been settled law that . . . a common-law marriage contracted in a sister Statewill be recognized as valid here if it is valid where contracted.” E.g., Mott v. Appendix Page 19
  • Duncan Petroleum Trans, 414 N.E.2d 657, 658-59 (N.Y. 1980) (citing cases)(extending Workers’ Compensation spousal death benefit to survivor of “common-law marriage”). Moreover, New York has even extended spousal recognition to relationships thatneither fulfilled the statutory prerequisites for creation in New York nor involved travelto a state that recognized common-law marriages, if the parties did nothing more thanhave a ceremonial wedding without a marriage license. See In re Gruntfest’s Will, 7A.D.2d 1005 (N.Y. Sup. Ct. App. Div. 1959) (ceremonial marriage, even withoutmarriage license, created right to take an intestate share against provisions of will ofdecedent). New York thus has a long history of extending all the legal benefits, protections,and rights of marriage to relationships that are not “marriages” at all in the traditionalsense or under New York statute. With the parties to “common-law marriages” havingfailed to take any of the formal, legal steps toward marriage, these relationships havemuch less in common with traditional, formal marriage than do Massachusetts same-gender marriages, which require the parties to follow a set of procedures identical tothose required for a traditional marriage, working with precisely the same governmentagencies, and resulting in a relationship that has precisely the same legal responsibilities,benefits, and protections as traditional marriage. Indeed, other than the gender of theparties, the only real difference between same-gender marriages and traditional marriagesis the label used to identify each. New York has also extended “spousal” or “marriage” recognition tomarriages if valid where created, even though the parties could not have married in Appendix Page 20
  • New York. See, e.g., In re May’s Estate, 305 N.Y. 486, 114 N.E.2d 4 (1953)(recognizing marriage between uncle and niece, prohibited by New York statutorylaw but validly created in Rhode Island); cf. Bronislawa K. v. Tadeusz K., 90 Misc.2d 183, 393 N.Y.S.2d 534 (N.Y. Fam. Ct. 1977) (holding that previous undissolvedreligious marriage in Poland was not valid under Polish law, so that present marriagein New York was valid and not bigamous). In short, with certain narrow exceptionsinvolving marriages that are “abhorrent” and “repugnant” to New York publicpolicy, New York has extended comity to the laws of other jurisdictions and hasrecognize spousal relationships validly created in those jurisdictions, regardless ofwhether they could have been created in New York. B. Based on the Plain and Unequivocal Terms of the Marriage Law, Jerry and Bryan were “Spouses.” It is clear that New York recognizes spousal relationships validly created inother jurisdictions, and Jerry and Bryan took the significant step of entering into amarriage in Massachusetts. Thus, Jerry and Bryan were validly “spouses,” andpursuant to the law of a sister state, Jerry is Bryan’s surviving “spouse” who isentitled to recovery and distribution of any damages obtained pursuant to a wrongfuldeath action. This Court should give full effect to the plain and unambiguous legal“spousal” status that Jerry and Bryan entered into, along with its practical and legalsignificance. See West Aff. ¶ 5. Defendant’s heavy reliance on New York commonlaw is misplaced. New York cases decided before the Massachusetts SupremeJudicial Court declared in 2003 that same-gender marriages would be recognized in Appendix Page 21
  • no way suggest that either New York law or public policy would forbid recognition ofsame-gender marriages. Their analyses and holdings, therefore, including their dictaas to whether same-sex couples could legally marry in New York are entirelyirrelevant to the legal issues presently before this Court. Furthermore, in Raum, 675 N.Y.S.2d at 344, the majority and dissentingopinions expressed conflicting views as to whether a provision disqualifying certainsurviving spouses from recovering under the wrongful death and intestacy lawsincludes an implicit definition of “spouse.” Under either view, however, given theundisputed facts, Jerry meets the definition of a surviving spouse under the wrongfuldeath statute. The majority construed N.Y. Est. Powers & Trusts Law § 5-1.2 as animplicit definition of “surviving spouse” to include “[a] husband or wife.” See Raum,675 N.Y.S.2d at 344. Assuming arguendo that the Raum majority was correct, Jerryqualifies as a “husband” and therefore as a “surviving spouse,” entitled to recoveryunder New York’s wrongful death law based on the Massachusetts marriage law. The Raum dissent had the stronger argument, however, pointing out that N.Y.Est. Powers & Trusts Law § 5-1.2 does not purport to be definitional. 675 N.Y.S.2dat 345 (Rosenberger, J., dissenting). The dissent argued that the section should not bestretched beyond its intended purpose of disqualifying spouses who have abandoned,divorced, or separated from decedents to limit the meaning of “spouse” to includeonly a “husband or wife.” Id. Regardless, Jerry is both a surviving “husband” and asurviving “spouse,” and therefore is entitled to wrongful death recovery in New Yorkunder either reading of the provision. Jerry and Bryan entered into the most protective legal relationship possible for Appendix Page 22
  • same-sex couples in this country, a Massachusetts marriage, precisely to create andsecure their legal status as spouses. Defendant does not contend that Jerry andBryan’s legal process of becoming spouses under Massachusetts law was defective,void, or voidable in any way under the Massachusetts law. Significantly, Jerry andBryan went to these great lengths to protect their relationship and each other, preciselyso that each would be legally recognized as the “spouse” of the other under suchunforeseeable and tragic circumstances as now face this Court. C. Comity Principles Require New York to Recognize that Jerry and Bryan Were Spouses. Jerry and Bryan satisfied all the legal requirements to become spouses underMassachusetts law. Throughout this nation’s history, New York, like every otherstate, almost automatically has accorded legal recognition to spousal bonds created insister jurisdictions and foreign nations. There is no legal or rational basis for adifferent outcome in this case. Indeed, there is absolutely no authority in New Yorkspecifically preventing recognition of Jerry and Bryan’s spousal relationship lawfullyentered into in a sister state. Moreover, plaintiff is not aware of a single New York case in which NewYork has denied legal recognition to a spousal union that two fully informed andconsenting adults, unrelated by blood, legally entered into in the place where theunion was celebrated. Instead, defendant argues that this Court must adopt anunreasonably strict standard, unsupported by case or statutory law, for recognition ofJerry and Bryan’s validly created bond as spouses. Specifically, defendant contends Appendix Page 23
  • that Jerry could not be a surviving “spouse” entitled to state a claim for his pecuniaryloss due to Bryan’s wrongful death, because Jerry and Bryan could not have been“married” in New York. See Defendant’s Motion for Partial Dismissal at 2 (arguingthat Jerry and Bryan could not have married in New York, and assuming, withoutdiscussion, that their purported inability to do so in New York establishes that theirundisputed legal marriage in Massachusetts should not be recognized in New York).Defendant presents an entirely erroneous standard for New York’s recognition ofspousal relationships created in sister jurisdictions. 1. New York Extends Comity to the Legal Acts of Other States andNations. The standard is not, as defendant suggests, whether the relationship could havebeen created in New York. Quite the contrary, the general rule under comity is that NewYork will confer recognition upon spousal relationships which never could have beenlegally created in New York, even where New York law expressly forbids their creationin New York, as long as the spousal bond was legally created in the place where therelationship was celebrated. See, e.g., In re May’s Estate, 114 N.E.2d 4, 6 (N.Y. 1953). 7Defendant’s argument on the question of whether same-gender marriages can beperformed in New York is therefore irrelevant to the pending motion. Only two exceptions exist to the general principle extending recognition tospousal unions that were valid where created: (1) if New York law specificallyprohibits recognition of such spousal relationships when created outside New York;and (2) if recognition of the spousal bond would be offensive to the public sense ofmorality to an abhorrent degree. See, e.g., May’s Estate, 114 N.E.2d at 7. Neither Appendix Page 24
  • has any application to this case. Notably, New York law does not expressly forbid the 7creation of a spousal relationship between two persons of the same sex, but even if itdid, under well-settled principles of comity, that prohibition would not precluderecognition of Jerry and Bryan’s spousal bond. In May’s Estate, the New York Court of Appeals noted that while other stateshave enacted laws to preclude recognition of certain kinds of marriages, even if validwhere created, New York has not done so. Thus, the first exception still has noapplication in New York. With respect to the second exception, the New York Courtof Appeals has recognized only two classes of spousal unions that have been deemedso “abhorrent” to New York public policy that New York law refuses to recognizethem even if valid where celebrated: (1) cases involving polygamy, or (2) incest in avery close degree of consanguinity. May’s Estate, 114 N.E.2d at 6. Moreover, theCourt affirmed a judgment recognizing a marriage between an uncle and a niece,despite a specific prohibition against such marriages in New York, despite the parties’domicile in New York, and despite their undisputed effort to avoid the New Yorkprohibition by traveling to a sister state that permitted the marriage. Id. at 5-7.Though incestuous, and though specifically forbidden from being created in NewYork, the degree of consanguinity did not make the relationship so “abhorrent” to NewYork public policy as to deny recognition. Neither exception to the general rule extending recognition to spousal unionsapplies here. New York has no specific statute forbidding a same-sex marriage or spousalunion, and as discussed below, far from being “abhorrent” to New York public policy, Appendix Page 25
  • legal recognition of lesbian and gay families is entirely consistent with and evenmandated by New York public policy and law. For purposes of New York’s wrongfuldeath law, the question is whether New York should give comity to a sister jurisdiction’sconferral of legal “spousal” status, not whether it should give comity to a sisterjurisdiction’s conferral of “marriage.” Moreover, when states encounter a legal entity that they do not recognize undertheir own law, they consistently treat that entity as the closest analogue under their ownlaw. Thus, as discussed above, New York does not permit so-called “common-lawmarriages,” which are quite distinct from traditional marriages and involve none of theformal, written, and ceremonial procedures required for traditional marriages.Nevertheless, New York treats “common-law marriages” that have been validly createdunder the law of a sister jurisdiction as their closest analogue, full-fledged “marriages.”Likewise, New York has treated “proxy marriages,” which do not exist in New York, asfull-fledged marriages. With spouses to a marriage assuming all the same responsibilities, and entitledto all the same benefits and protections as spouses in a traditional marriage, treating aMassachusetts marital union as a marriage in New York is entirely warranted. Yetthis Court need not go even so far. Regardless whether same-gender marriages areregarded as the legal and functional equivalent of heterosexual marriage in allrespects, the issue under New York’s wrongful death law is not whether the partiesare married, but whether they are spouses. Because “spouse” is a legal concept thatis just as well defined under New York law as it is under the law of Massachusetts,and with virtually identical meanings, this Court need not seek the New York Appendix Page 26
  • analogue for a Massachusetts “spouse.” Principles of comity require thatMassachusetts spouses be treated as their New York equivalent – New York spouses,entitled to (among other protections and benefits) recovery under the wrongful deathlaw. 2. Far from Preventing Recognition of Same-Sex Spouses Married in Massachusetts, New York’s Public Policy Supports Recognition of such Bonds. Any public policy exception to the comity doctrine requires not merely that therelationship could not have been initially created in New York, but that recognition of itbe “repugnant” and “abhorrent” to New York public policy. See, e.g., May’s Estate, 114N.E.2d at 7. Recognition of the parties to a Massachusetts marriage as “spouses” underNew York’s wrongful death law is not “repugnant” to New York public policy. Indeed,contrary to defendant’s argument, far from having any public policy that would preventrecognition of same-sex relationships legally contracted in a sister state, New York publicpolicy supports recognition of these relationships. This should be especially clear withinthe context of the wrongful death statute. The purpose of New York’s wrongful death statute is to compensate thosewhom the deceased normally would have assisted for the pecuniary benefits that theywould have receivedhad the deceased lived. See Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45, 51(2d Cir. 1984). In addition, like the tort law generally, the wrongful death statute isintended to punish tortfeasors and, specifically in the medical malpractice context, deterconduct that falls below the accepted standards of medical care. See Kogan v. Dreifuss,571 N.Y.S.2d 314, 316 (N.Y. Sup. Ct. App. Div. 1991); see also Raum v. Restaurant Appendix Page 27
  • Assocs., Inc., 675 N.Y.S.2d 343, 347 (N.Y. Sup. Ct. App. Div. 1998) (Rosenberger, J.,dissenting) (summarizing the goals of the wrongful-death statute). Excluding same-sexspouses would not advance any of these purposes; indeed, it would undermine all of themwhile giving a windfall to a tortfeasor. Moreover, excluding same-sex spouses from wrongful death recovery wouldviolate New York’s well-established public policy against sexual orientationdiscrimination. The exclusion would impose all these harms while failing to promote anylegitimate state or societal interest. New York State’s courts have been among thenation’s leaders in an evolving public policy that increasingly recognizes the civil rightsof lesbian and gay people, supports legal recognition of their relationships, and opposessexual orientation discrimination. Indeed, in the past two decades, no less than four NewYork Court of Appeals’ decisions affecting lesbian and gay rights support the propositionthat same-gender couples, especially those in long-term committed relationships, areentitled to legal recognition and protections similar or equivalent to those extended tomarried couples. To give full effect to the underlying purpose of state laws, to ensurefairness and justice for lesbian and gay couples and families, and to avoid discriminationagainst them, New York’s courts often construe statutes quite broadly. Indeed, nearlythirty years ago, the New York Court of Appeals rejected the argument that recognitionof the civil rights of lesbian and gay individuals contradicts New York public policy. SeeGay Activists Alliance v. Lomenzo, 293 N.E.2d 255 (N.Y. 1973) (compelling acceptanceof Gay Activists Alliance’s certificate of incorporation, despite Secretary of State’sassertion that organization’s purposes violated public policy). Appendix Page 28
  • New York’s courts have not been the only branches of New York government toaffirm the equal rights of the State’s gay and lesbian citizens. Recently, New Yorkbecame the thirteenth state in the nation to pass statewide legislation barringdiscrimination based on sexual orientation. Further, the law bars New York State, itsagencies, and its subdivisions from discriminating based on sexual orientation withregard to a person’s “civil rights.” Moreover, long before the passage of this legislation, New York State publicpolicy strongly supported the civil rights of lesbian and gay people. In November 1983,then-Governor Mario Cuomo issued an Executive Order barring sexual orientationdiscrimination by all state agencies and departments in employment and “in the provisionof any services or benefits.” See 9 N.Y.C.R.R. § 4.28. In that Executive Order, theGovernor “announce[d] freedom from [sexual orientation] discrimination as the policy,not just of the Department of State but of this entire State government.” Id. In extendingthe Cuomo Executive Orders barring employment discrimination by the state on the basisof sexual orientation, Governor Pataki took the statement of policy one step further todeclare not only that state government opposes sexual orientation discrimination, but alsothat “it has been, and remains, the policy of this state not to discriminate on the basis ofsexual orientation.” 9 N.YC.R.R. § 5.33 (Executive Order No. 33, issued April 9, 1996)(emphasis added); see also 9N.Y.C.R.R. §§ 5.10, 5.12 (Pataki Executive Orders, issued April 1995, barring sexualorientation discrimination in screening of candidates to becomes judges, districtattorneys, and sheriffs). Further, the state has promulgated regulations to implement Appendix Page 29
  • housing and adoption laws recognizing lesbian and gay relationships and to prohibitadoption agencies from rejecting petitions solely based on sexual orientation. See 9N.YC.R.R. §§ 2104.6, 2204.6, 2500.2, 2503.5, 2520.6 (succession rights of unmarriedlife partners); 18 N.Y.C.R.R. § 421.16(h)(2) (regulating adoption). On June 23, 2000, theNew York Senate passed a hate crimes law that enhanced penalties for bias-motivatedcrimes, including those motivated by anti-gay bias, 11 years after the New YorkAssembly had first approved the bill. See N.Y. Penal Law § 485.05 (hate crimesprovision). The benefits and protections extended to lesbian and gay people who lost lifepartners in the terrorist attacks on September 11, 2001, is further proof of New York’spublic policy in favor of recognizing such relationships. In an Executive Order followingthe September 11 tragedy, Governor Pataki concluded that the State Crime VictimsBoard (“SCVB”) should extend the benefits of a “spouse” to domestic partners, a changethat the SCVB reportedly then made permanent. State of New York Executive OrderNo. 113.30); www.prideagenda.org/pressreleases/pr-10-17-02.html. Furthermore, on August 20, 2002, the New York Legislature extended theWorkers’ Compensation “spousal death benefit” to domestic partners (includinglesbian and gay domestic partners) of the victims of the September 11 attacks. N.Y.Workers’ Comp. Law § 4 (2002) (domestic partner of employee killed in 9/11 terroristattacks “shall . . . be deemed to be the surviving spouse of such employee for thepurposes of any [Workers’ Compensation] death benefit . . . .”) (emphasis added). Appendix Page 30
  • 3. The Federal Defense of Marriage Act, which Permits States to Allow and Recognize Same-Sex Marriages and Spousal Bonds, in No Way Forbids Such Recognition, and Otherwise Has No Bearing on this Case. The so-called federal “Defense of Marriage Act” (“DOMA”), upon whichdefendant relies heavily, in no way undermines the argument for New York’s recognitionof Jerry and Bryan’s spousal union. While DOMA purports to permit individual states torefuse to recognize same-gender marriages performed in any other state, see 28 U.S.C. §1738C (2002), it by no means prohibits states from recognizing such marriages. See1996 U.S. Code Congressional & Admin. News 2905, 2929. Significantly, New York has declined to adopt any statutory language erectingobstacles to either the creation or the recognition of same-gender marriages or spousalbonds. In the absence of any such state statute, especially when DOMA expresslypermits states to enact them and a majority of states have done so, evidences the NewYork Legislature’s intent not to hinder state recognition of spousal bonds that same-gender couples legally create in sister or foreign jurisdictions. The additional New Yorkprinciple that recognition should be broadly extended to any spousal relationship legallycreated between two parties in a sister jurisdiction and not in gross violation of New Yorkpublic policy supports full recognition of same-sex spousal bonds created throughMassachusetts marriages. New York courts have always resolved cases regarding New York’s recognitionof spousal bonds created in sister or foreign jurisdictions by relying on state-law basedprinciples of comity, generally without resort to United States Constitution’s Full Faithand Credit Clause. In arguing that Full Faith and Credit does not require this Court to Appendix Page 31
  • recognize Jerry as a “surviving spouse,” defendant has once again missed the point.State-law comity principles require New York’s recognition of Jerry and Bryan’sspousal relationship, regardless whether Full Faith and Credit would also require suchrecognition. Because comity resolves the issue, this Court need not (and should not)delve into federal constitutional Full Faith and Credit concerns.III. New York Law Requires that the Court Respect the Reality of Jerry and Bryan’sLengthy, Committed Spousal Relationship Even if this Court were to conclude that the Massachusetts marriage by itself doesnot make Jerry a surviving “spouse” entitled to distribution under New York’s wrongfuldeath statute, New York common law supports recognition of Jerry and Bryan as spousesbased on the totality of their more than 11-year committed, loving, and mutuallysupportive relationship. The New York Court of Appeals has provided a viableframework for determining whether same-gender couples should be entitled to the legalbenefits and protections that married couples receive, which New York courts have beenimplementing ever since. Although the specific holding in that case was that the same-sex life partner of the deceased tenant in a rent-controlled apartment was a “familymember” entitled to succession rights, at least three New York courts have applied thesame principles to recognize same-sex couples as spouses under New York law. Far more than entering into a Massachusetts marriage, Jerry and Bryan took everystep available to them under the law, with their employers, with their family and friends,and in society generally to legalize, formalize, and protect their relationship and to haverecognized precisely what plaintiff asks this Court to recognize: that Jerry and Bryanwere spouses in a long-term committed relationship. In the pending case, Jerry and Appendix Page 32
  • Bryan’s relationship easily satisfies all of the relevant factors that entitle Jerry, assurvivor, to legal protection and benefits under the standard recognized by the New YorkCourt of Appeals. Jerry and Bryan legally formalized their relationship in almost every waypossible, not only by becoming spouses through a formal legal marriage inMassachusetts, but by executing wills, designating one another sole beneficiary and soleexecutor of the other’s estate, and securing health care proxies, life insurance policies,and joint listings on their leases. The couple’s dedication, caring and self-sacrifice wereevident to the day of Bryan’s death and beyond. If ever there were a case where equitable principles should be applied to permitsame-sex partners to be recognized as “spouses,” this is certainly that case. Despite theiryouth and their health, Jerry and Bryan availed themselves of every available opportunityto cloak their relationship and each other with legal protection and recognition, and theysolemnized their relationship in the sole U.S. jurisdiction that has expressly recognizedthe validity of same-sex marriages, as opposed to statutory constructs such as domesticpartnerships and civil unions, which are often created solely for the purpose of preservingthe traditional marriage relationship for heterosexual couples. It is well settled in NewYork that courts have the equitable power to grant a person the powers, protections,benefits, and privileges of a close family members, including a “spouse,” even where noformal legal instrument or necessary biological relationship otherwise exists to create theprotected relations. Yet in contrast to the parties to whom New York courts have accorded full legal Appendix Page 33
  • recognition as next of kin, Jerry and Bryan did have a formal legal instrument – theirmarriage – that legally made them spouses and makes Jerry the surviving spouse ofBryan. Where an equitable and economic understanding of the real relationshipbetween the parties has been sufficient to extend full legal protections, it would beparticularly irrational and unjust to deny Jerry recognition of his formal, legal status asBryan’s marital spouse.IV. To Preclude Jerry from Seeking Recovery for Wrongful Death WouldViolate His State Constitutional Right to Equal Protection. As discussed above, Jerry is entitled to recognition as a “surviving spouse” undera literal and correct reading of New York’s wrongful death law, well-settled principles ofstate-law comity, and application of a functional definition of the term “spouse” understate law and relevant precedent. However, if this Court were to reject this well-established authority and precedent and conclude that plaintiff is not a “surviving spouse”under the wrongful death statute, plaintiff nonetheless must be afforded all the benefitsand protections of a spouse (including the right to recovery under this wrongful deathsuit) based on his right to equal protection under the laws pursuant to New York State’sConstitution. N.Y. Const. art. I, § 11.. New York’s Court of Appeals has interpreted both fundamental rights and equalprotection as being more expansive under New York’s State Constitution than under theUnited States Constitution. New York courts therefore have extended certainconstitutional protections that federal courts have declined to find under federalconstitutional law. See, e.g., People v. Kern, 75 N.Y.2d 638, 554 N.E.2d 1235, 555N.Y.S.2d 647 (1990) (rejecting federal standard and using more stringent state Appendix Page 34
  • constitutional standard to find that peremptory challenges to exclude jurors of particularrace violate Equal Protection Clause of New York Constitution). That defendant’s interpretation of the statute would also exclude unmarrieddifferent-gender couples does not save it from constitutional infirmity. Unmarrieddifferent-sex couples have the ability to marry, but have chosen not to do so. In starkcontrast, to date, no same-sex couple has succeeded in obtaining a marriage in New York.Thus, if defendant’s view were to prevail, partners in same-gender couples would face aninsurmountable barrier to protection under the wrongful death statute that partners indifferent-gender couples do not face. Courts have struck down laws that, whileostensibly neutral on their face, result in de facto discrimination by failing to take intoaccount the differing circumstances of particular groups. See Anderson v. Celebrezze,460 U.S. 780, 801 (1983); Council of Alternative Political Parties v. Hooks, 121 F.3d876, 882-83 (3d Cir. 1997). Jerry and Bryan went to great lengths to do everything possible to secure all theprotections, benefits and responsibilities of being legal spouses. In light of thisfundamental difference, any contention that Jerry and Bryan are treated in a mannersimilar to heterosexual unmarried couples glosses over the basic legal disability thatplaces the two groups into two entirely different situations and renders any purportedequation of the disingenuous at best. No legitimate state or government interest would be promoted by denying same-gender couples the right to access the law’s wrongful death remedies and protections, andincalculable harm would be imposed on same-gender couples. If defendant’sconstruction of the wrongful death law is accepted, the law would be interpreting the Appendix Page 35
  • statute in such a way as to violate Jerry’s right to equal protection under the New YorkConstitution. Under those circumstances, he should be entitled to recover as if he were asurviving spouse under New York law in order to preserve those superseding rights. SeePeople v. Kern, 554 N.E.2d 1235 (N.Y. 1990). CONCLUSION For the foregoing reasons, plaintiff Jerry West respectfully asks this Court toconvert defendant Mercy Hospital of New York’s partial motion to dismiss into one forpartial summary judgment, deny that motion, and grant plaintiff’s motion for partialsummary judgment. As decedent Bryan Kessler’s surviving spouse, Jerry West isentitled to recover under New York’s wrongful death law. Respectfully submitted,Dated: New York, New York January 9, 2005 _______________________ ____ David Barrett, Esq. N.Y. Bar No. 513186 Grynn & Barrett, PC 419 Park Avenue South, 2 nd Floor New York, NY 10016 Appendix Page 36
  • CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this Memorandum of Law wasserved on the following person by depositing a copy in the United States Mail, first classpostage prepaid, on the 9th day of February 2005, addressed to: Ronald Dewgoode Dewgoode, Goforth & Prosper 735 E. 3rd Ave. New York, N.Y. 00103 _________________________ David Barrett, Esq. N.Y. Bar No. 513186 Grynn & Barrett, PC 419 Park Avenue South, 2 Floor nd New York, NY 10016 Appendix Page 37
  • IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORKJERRY WEST, in his Capacity as Executor )of the Estate of BRYAN KESSLER, Deceased, )and JERRY WEST, Individually, ) ) Plaintiffs, ) Index No: 11618/2002 ) Judge Donald Gumper v. ) )MERCY HOSPITAL OF NEW YORK, ) ) Defendant. ) )State of New York ) ) :ssCounty of New York ) AFFIDAVIT OF JERRY WEST JERRY WEST, a competent witness over the age of 21, having been duly sworn,states as follows: 1. I am the plaintiff in this action and the surviving life partner of BryanKessler. I submit this affidavit in opposition to the motion to dismiss filed by defendantMercy Hospital of New York. 2. For more than fifteen years, Bryan and I were soul mates and spousescommitted to one another in a loving, stable, and committed life partnership. We lovedeach other as deeply as it is possible for a couple to love each other. We did everythingpossible to formalize, legalize, and protect our relationship and our lifelong commitmentto each other. Appendix Page 38
  • 3. Bryan and I were introduced to each other by mutual friends on September14, 1993. At that time, Bryan was 32 and I was 27. Eight months after we met, wemoved in together. We lived together as a couple in a committed life partnership for therest of Bryan’s life. 4. By Spring 2004, Bryan and I had lived together as a couple for almosteleven years. A few weeks before Massachusetts began to issue marriage licenses tosame-sex couples, Bryan asked me if I would marry him in Massachusetts. With greatenthusiasm, I agreed to do so. 5. As a lawyer, Bryan understood the legal implications of entering into aformal marriage relationship. Once he explained them to me, we were both eager tofinally obtain legal recognition of our relationship as spouses, with the same benefits,protections, and responsibilities as spouses in a traditional marriage. 6. On February 22, 2004, Bryan drove to Provincetown, Massachusetts tosearch a suitable place for our wedding and a local official to perform the ceremony. 7. A week or two later, Bryan and I drove to Provincetown together anddecided on a hotel for the wedding and the reception. Having already waited for almosteleven years, we were eager to have the ceremony and become legal spouses as soon aspossible. We reserved a suite for our ceremony and began making other arrangementsfor our wedding. 8. We arranged a small but formal wedding, which was attended by some 40extended family members and close friends. 9. We agreed to ask Alan Matzkin, our friend and Bryan’s lifelong pal, to beBest Man at our wedding. Years before, Bryan had been Alan’s Best Man at Alan’s Appendix Page 39
  • wedding. 10. On May 19, 2004, just two days after same-sex marriages became legal inMassachusetts, Bryan and I had our wedding in Provincetown, Massachusetts. OurMassachusetts Marriage License and Certificate are a matter of public record, and theywere signed and dated by the local magistrate on May 19, 2004. 11. At the wedding ceremony, which was videotaped by my cousin’s spouse,and witnessed by the local magistrate and our family and friends, each of us tookidentical vows to the other, stating: I [Bryan /Jerry], take you [Jerry/Bryan], to be my lawful wedded spouse, to have and to hold from this day forward, for better, for worse, for richer, for poorer, to love and to cherish, so long as we both shall live. 12. After exchanging vows, we exchanged wedding bands as a physical symbol of our joining together as spouses. With the exchange of rings, we each said to the other: “With this ring, I marry you.” It was always our understanding that in entering into a civil union, each of us accepted the same legal responsibilities, and the same legal protections and benefits, as spouses in a traditional marriage relationship. For us, it was legal recognition of the loving and committed life partnership we had been sharing for more than a decade. 13. When we first met in 1993, Bryan was a young lawyer. He was a 1986 graduate of Case Western Reserve Law School. After graduation, he lived in Eastchester, New York, commuting daily to work at a small Manhattan law firm. At that time, I was living in Prospect Park, New Jersey, just getting my own career underway as an insurance claims representative. Bryan and I saw each other at least every weekend, usually in Manhattan. Appendix Page 40
  • 14. Less than three months after we met, in December 1993, Bryan spent Christmas with me in Prospect Park, New Jersey. For the next six months, he visited me every weekend, commuting from Eastchester, New York to Prospect Park, New Jersey.15. In June 1994, Bryan proposed that we move in together. He found a small apartment he could afford in the Bronx, and we moved in together the weekend of July 4, 1994. From then until Bryan’s untimely death, we lived together at various addresses in New York and New Jersey.16. Because Bryan was a lawyer with a Manhattan law firm, his income was substantially greater than mine. Consequently, he paid almost all of our bills, including our rent, for the first several years.17. In September 1995, Bryan took a new job as a commercial litigation associate with the Manhattan office of Pell, Mell & Bewilder, a San Francisco-based law firm. He continued to work there until the spring of 1998.18. During Bryan’s nearly three years working at Pell, Mell & Bewilder, I was introduced to many of his colleagues as his life partner, and we became friends with several of them.19. Gradually, our respective families became more accepting of our relationship, and eventually they came to embrace us as spouses and members of the respective other’s family.20. Bryan first met my parents, who live in Buffalo, New York, in the summer of 1995, and we saw them about once a year after that.21. I met Bryan’s parents within a few months after the beginning of our Appendix Page 41
  • relationship, and we spent Thanksgiving with them in November 1994. Bryan and I often invited his family over for dinner, and we spent many major holidays together.22. Although I was raised Catholic, I always enjoyed spending the Jewish holidays with Bryan’s family, and I was glad they welcomed me for these and many other occasions. Bryan and I got together with his family for almost every Passover Seder, Rosh Hashanah, Yom Kippur, Sukkoth, and Hanukah.23. Bryan and I both became very fond of our niece Sarah and nephew Daniel, the children of his brother Elliot and his wife Laura. We often talked about the possibility of having children of our own. We even discussed the possibility of my converting to Judaism if we did have children, so we could raise our children in the Jewish faith, which was important to Bryan and his family and therefore to me. Although we never had the opportunity to have children, we were grateful to have such a close relationship with our niece and nephew and to spend so much time with them.24. In January 1997, Bryan and I moved to Westfield, New Jersey, so that I could accept a new position as an insurance underwriter in New Jersey. Bryan continued to commute daily to work in Manhattan. Although we were living much farther away from his family than before, we continued to see them at least several times a month. Over the years, as I was increasingly accepted as a member of his family, I also embraced Bryan’s family as my own.25. In April 1998, I was offered a management position in Saddle Brook, New Jersey with my insurance company, which I hoped might lead to becoming a Appendix Page 42
  • full-fledged independent agent. Bryan and I both saw this as an important opportunity. We therefore moved to Saddle Brook. 26. Around the time of that move, Bryan left Pell, Mell & Bewilder and began working as a solo practitioner. Over the next 6 1/2 years until his death, as he continued his litigation practice, he also spent an increasing amount of time helping me succeed in my insurance business, using his skills in law, business, and marketing. His contributions were enormously valuable, and working together, we became a family business. 27. From October 1998 until June 2000, I went through intense trainingprograms, taking classes and tests; visiting and assisting numerous independent agents;and undergoing company evaluations to eventually become an independent insuranceagent. During that time, I also worked full time as an agency consultant, assistingindependent and trainee agents throughout Nassau County in retaining and expandingtheir client base and handling the related agency documentation. 28. This 20-month period was grueling and difficult for me, and Bryan was a supportive spouse in every possible way: emotionally, personally and professionally. He helped me with my writing assignments, and he advised me how to position myself strategically to improve my chances of becoming an independent agent. He was also there to provide love and emotional support whenever I needed it. 29. After I became a trainee agent in July 2000, Bryan was instrumental in helping us obtain enough business as an insurance agency and build what we considered our family business. Appendix Page 43
  • 30. Indeed, within my one-year “trial period” as a trainee agent from July 2000 to July 2001, Bryan and I had to meet certain quotas set by the parent company in order to become an independent contractor insurance agency. During this period, almost all members of Bryan’s family purchased insurance from us to help us meet our quotas, and I remain extremely grateful to them for coming to our assistance in a way that we could only expect of family.31. Moreover, in June 2000, Bryan’s uncle, Arthur Penn, whom I always thought of as my own uncle as well, loaned what was to Bryan and me a substantial sum to help us set up our insurance agency. To me, this was yet another example of Bryan’s family treating me like a member of their own.32. Bryan was a quick study, and by December 2000, he became licensed as a “sub-agent” to sell all lines of insurance coverage: automobile, fire, life, and health.33. By 2001, Bryan had become a full-time contracted employee agent with our family business, and something of an expert in insurance. He was our “marketing guru,” helping us obtain business that I never would have been able to obtain on my own. He used his legal knowledge to help me draft letters to policyholders and people in the parent company, negotiate and then close on a lease for my office, set up an independent insurance agency, and set up and train our agency staff.34. In addition, Bryan arranged for us to have tables at various town events and shows promoting our business. He arranged all newspaper and magazine advertisements and drafted letters to our parent company explaining our Appendix Page 44
  • advertising strategy. He attended all seminars sponsored by the parent company, which saw Bryan as a key player in the success of our family agency. He ordered all marketing material for the promotion of the agency, and was instrumental in helping me become an active Chamber of Commerce member, because he knew that it would benefit our family business. 35. Right up until the time of his death, Bryan was continuing to assist the development of our family insurance business in these and many other valuable ways. 36. As a lawyer, Bryan was concerned about the lack of legal protections thatwe had in the absence of being legal spouses. Beginning in the mid-1990’s, both of uswould read about extended families excluding same-sex life partners from decisionmaking regarding the healthcare of a physically or mentally incapacitated individuals. 37. We also read and were concerned about stories regarding extended families of deceased persons disrespecting same-sex surviving partners, legally evicting them from their longtime homes, excluding them from decisions about funeral arrangements, and denying them access to the couples’ joint possessions and property registered under the deceased partners’ names. 38. In 1998, Bryan and I decided to take legal steps to protect our life commitment. One of his fellow law associates prepared health care proxies for us, and we had them fully executed to ensure that we would be able to make healthcare decisions for each other in case of any emergency. As of 1998, we still had almost no assets, so we decided the expense of obtaining wills was not justified. Appendix Page 45
  • 39. Beginning in 1999, we each purchased life insurance for the first time in our lives, and Bryan and I consistently designated each other as “primary” and “direct” beneficiaries of each other’s life insurance policies. 40. Our homeowners’ insurance policy, by listing us jointly, evidenced that we were joint owners of all our property. 41. Likewise, we are jointly named in our Personal Liability Umbrella Policy, evidencing joint and intermingled financial obligations. 42. In December 1999, just before leaving on a trip for Iceland, and prompted by “Y2K”-related concerns about flying at that time, Bryan and I finally made out wills, naming each other sole beneficiaries and executors of each other’s estates. At the same time, we updated our health care proxy designations, by which we each designated the other as sole health care agent. 43. After Bryan’s death, as Executor of his Estate, I had to deal with amountain of papers at the most difficult and grief-stricken time in my life. 44. At different times in our relationship, Bryan and I each took greater orlesser responsibility for our overall expenses, depending on our respective incomes.Early in the relationship, I was almost completely financially dependent on Bryan, butover the years, we became financially interdependent. On our leases from Harrison, NewYork; Westfield, New Jersey; Massapequa Park, New York; and Saddle Brook, NewJersey, both our names were listed, reflecting that we were jointly responsible for oursingle biggest expense, the cost of our living space. 45. On Christmas morning 2000, when Bryan and I were getting ready to go spend the day with my aunt in New Jersey, just as we had on Christmas in Appendix Page 46
  • previous years, we received an unexpected call from Bryan’s brother Elliot with tragic news: Bryan’s maternal uncle, Arthur Penn, only 61 years old, had suffered a heart attack in his sleep and had died earlier that morning.46. Understandably shocked, Bryan sat on the living room stairs and cried. It was one of the only times I ever saw Bryan cry. I wanted to support him in every way I could.47. On November 12, 2004, I received a call at my office from a doctor at Mercy Hospital. He told me that Bryan had been struck by a car and was there in the hospital. I immediately became very upset and worried, but then I heard Bryan shout in the background: “Tell him I’m okay! I’m okay!”48. I demanded to speak with Bryan, and the doctor put him on the phone. Bryan told me that he was okay, that a car had hit him, and his leg was broken. He asked me to bring him his wallet, which he had left at home.49. Bryan told me that I was the only person that he had asked the hospital to call. I therefore called his brother Elliot, who works in Manhattan not far from Mercy Hospital, and Elliot in turn informed Bryan’s other close family members.50. When I arrived at the hospital, Bryan was on his way into the surgery room. He had given his brother Elliot a handwritten note to give me. It read as follows: Jerry: I’m going under. I haven’t had a chance to see you. I love you. Appendix Page 47
  • I’ve made my life in your heart. Bryan 51. When I told the staff at the hospital that I was Bryan’s life partner, they letme go up to the operating room to meet the surgeon and the anesthesiologist. Indeed,throughout Bryan’s remaining time alive, the Mercy Hospital staff treated me as thespouse that I am. 52. In the operating room, Bryan, the surgeon, the anesthesiologist, and Idecided together that Bryan should have general anesthesia before the surgery. I stayedin the operating room until the doctors told me that I had to leave. I then kissed Bryangoodbye, and went to wait until after the surgery was over. 53. At approximately 1 a.m., early on November 13, 2004, Bryan came out ofsurgery, still groggy from the anesthesia. His brothers, Jeremy and Elliot, and I werewaiting for him in the waiting area. When the nurses finally let us into his room, Bryanlooked up and said to me, “Hello, sweetheart.” He then greeted his two brothers. 54. Jeremy, Elliot, and I stayed with him in the hospital until approximately 2a.m. that night. 55. On November 13, 2004, I returned at approximately 11 a.m. or noon.During the day, many family members and friends came to visit Bryan. As they came andleft, I stayed the entire time. 56. Bryan’s mother, Ruth Kessler, was in Florida. When she called to askwhether she should come up, Bryan told her that it was just a broken leg, and she shouldstay in Florida. Over the years, I have had the privilege of getting to know Bryan’swonderful mother quite well, and I predicted aloud that she would return from Florida to Appendix Page 48
  • see Bryan. In fact, the next day, she did arrive in the hospital. 57. I stayed in the hospital with Bryan that day until approximately 11 p.m.When I went home, I was the last to leave him. He was scheduled for a second surgerythe next day. 58. On November 14, 2004, the day of Bryan’s second surgery, I againreturned to the hospital at approximately 11 a.m. or noon. Again, many of Bryan’srelatives came to visit. During the day, I went to buy him supplies, like paper cups, tomake him more comfortable. Otherwise, I did not leave the hospital. 59. In the early evening of November 14, Bryan was brought in for his secondsurgery. Other than the medical staff, I alone initially went in with him, and again wedecided on general anesthesia. When I was told I had to leave, I kissed him on theforehead and left the room to wait for the surgery to be over. 60. At approximately 8:30 p.m., hours before Bryan returned to his hospitalbedroom, a member of the medical staff told Bryan’s mother, his brother Jeremy, and me,who were waiting together in Bryan’s hospital bedroom, that the surgeons hadsuccessfully closed the wound, that the surgery was a clean success, and that Bryanwould be able to return home on November 18. With this good news, at approximately9:00 p.m., Bryan’s mother and Jeremy returned home. I remained at the hospital withBryan. 61. Sometime near midnight, Bryan was wheeled into his hospital bedroom. Idid everything I could to make Bryan comfortable, including helping him with hisglasses, brushing his teeth, and washing his face, as the orderly hooked up hisintravenous drip. Appendix Page 49
  • 62. I then told Bryan that I would see him the next day and kissed himgoodnight. He said, “Goodnight, sweetheart.” I returned home and went to sleep. 63. On November 15, at 7:15 a.m., I awoke to a telephone call from Dr.Steven Touliopoulos of Mercy Hospital. To my complete shock, disbelief, and horror,Dr. Touliopoulos informed me that Bryan had died earlier that morning. Overcome withgrief, I sat on the living room stairs and cried, just as Bryan did when his uncle died. 64. I was the first and only one that Mercy Hospital called with this news.Even in Bryan’s death, Mercy Hospital treated me as Bryan’s spouse. 65. My world was suddenly and completely shattered by this horrifying news.I cannot begin to describe the grief that overcame me. I sat on the living room stairs andcried, just as Bryan had done years earlier when his dad died. 66. When I arrived at the hospital the same morning that Dr. Touliopoulostold me that Bryan had passed away, a grievance counselor employed by Mercy Hospitalwas waiting to comfort me on the death of my spouse. She spent hours with me until Ileft the hospital. 67. Bryan’s obituary that appeared in The New York Times identified me firstin the list of survivors as his spouse. 68. The e-mail sent out by my company after I advised them of Bryan’suntimely death identified him as my “life partner.” 69. I received sympathy cards from various nieces, nephews, and friends’children, illustrating that these children understood that Bryan and I were in a lifetimerelationship as spouses. 70. Bryan was the love of my life. I have never been closer to anyone. We Appendix Page 50
  • had plans, goals, and dreams that I will never be able to fulfill without him. 71. I miss everything about Bryan, every moment of my life. I miss lightingthe Hanukah Menorah with him. I miss him being happy watching me put up theChristmas tree. I miss him saying every morning “two more minutes” after the alarmrings, and I miss seeing him still asleep in bed 30 minutes later. I miss his love, affection,and caring, and I miss giving all those things to him. Every night, I still wait for him towalk through the door, the way he would every night, hug me, and say to our dogs,“Hellozens to the Snarkies!” 72. I buried Bryan with my tears on his face, and with the ring I gave him atour wedding placed on his heart. As he wrote in his final note to me, Bryan and I lived ineach other’s hearts, and he will continue to live in mine, forever. ___________________________ Jerry West Sworn to before me this 31st day of January , 2005 _____________________________________ Notary PublicMy Commission Expires: September 3, 2007 Appendix Page 51
  • IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORKJERRY WEST, in his Capacity as Executor )of the Estate of BRYAN KESSLER, Deceased, )and JERRY WEST, Individually, ) ) Index No: 11618/2005 Plaintiffs, ) Judge Donald Gumper ) ) ORDER ON MOTION FOR v. ) DISMISSAL AND CROSS- ) MOTION FORPARTIAL ) SUMMARY JUDGMENTMERCY HOSPITAL OF NEW YORK, ) Motion Submitted 1/31/05 ) Defendant. ) ) MEMORANDUM AND ORDER This matter comes before the court on Defendant’s Motion for Dismissal(Doc. 2) and Plaintiff’s Memorandum in Opposition and Cross-Motion for PartialSummary Judgment (Doc. 4). Because evidence has been submitted by bothparties in support of their respective motions, the Court will consider theDefendant’s Motion for Dismissal as a Motion for Summary Judgment, as well asPlaintiff’s Cross-Motion. See Fed. R. Civ P. 12(b), 56(a). This is action for wrongful death and medical malpractice brought by thedecedent’s surviving partner. The narrow issue presented by the motion andcross-motion is whether, under principles of full faith and credit or comity,plaintiff Jerry West’s legal status as a spouse of Bryan Kessler, in a marriage Appendix Page 52
  • solemnized in the State of Massachusetts, which was sanctioned and afforded allbenefits and obligations of a marriage under the laws of Massachusetts, entitleshim to recognition as a "spouse" under New Yorks wrongful death statute. In thealternative, Plaintiff argues that his equal protection rights under the New YorkConstitution would be violated if this court were to construe the statutory term“spouse” so narrowly as to bar him from recovery for wrongful death. Plaintiffdoes not raise any derivative claim for loss of consortium. Jurisdiction and Venue Plaintiff Jerry West resides in Saddle Brook, New Jersey. Defendant,Mercy Hospital of New York, is a health care provider whose principal place ofbusiness is in New York City, Manhattan Island, New York. The amount incontroversy far exceeds $ 75,000. Consequently, this court has diversityjurisdiction pursuant to 28 U.S.C. § 1332(a)(1), (c)(1). Venue is proper in thisdistrict because the defendant hospital “resides” in this forum for purposes of 28U.S.C. § 1391. Background As background for analysis, the circumstances of Bryan Kessler’s death, aswell as the circumstances of his life are reviewed. Bryan Kessler and Jerry West met on September 14, 1993 when Kessler was32 and West was 27. They moved in together eight months later and lived togetheruntil Kesslers death in November 2004. They provided each other with health Appendix Page 53
  • care proxies, named each other as the sole beneficiary on the others life insurancepolicy, listed themselves as joint owners on their homeowners insurance policy, andwere the sole legatees under each other’s wills. In the year 2004, Massachusetts courts legally sanctioned same-gendermarriages in the same manner as a traditional marriage. Massachusetts requires thesame solemnization procedures for same-sex marriages as it does for heterosexualmarriages, and the solemnization creates spouses for all purposes under Massachusettsstate law. Within days after the effective date of the Massachusetts ruling, Kesslerand West were married by a local magistrate in Provincetown, Massachusetts, in aformal ceremony with approximately forty family members and friends attending.Their vows included taking each other "to be my spouse.” They exchanged weddingbands; they planned to adopt children, and finally purchased a house in SaddleBrook, New Jersey. Within hours of the closing, Bryan Kessler was struck by theautomobile driven by Robert Popavich, who ran down and injured 18 people inManhattan. Having suffered a badly broken leg, Kessler was taken to MercyHospital in New York City, where he underwent two surgeries. Unfortunately, hedied while in the hospital from an embolus of "unknown origin." The words of the decedent’s family are telling when they describe theirfeelings for Bryan Kessler and describe the nature of his relationship with plaintiff.First, the parents: Ruth Kessler, Bryan’s mother, knew Jerry West as her sonspartner for more than 11 years. Even her grandchildren know Jerry as an uncle.As she explains, "Jerry has been Bryan’s partner in all aspects of life." They Appendix Page 54
  • participated together "in all family functions" including "birthdays, anniversaries,religious events, holidays, dinners, and vacations." Plaintiffs parents, Daniel andBarbara West, worried that their son would face "prejudice, hostility, and otherdifficulties," and initially they did not accept his relationship with Kessler. Butthey changed, stating "Jerry has always loved life, but we believe he loved Bryaneven more. It is as if a part of him died when Bryan died. " Jeremy Kessler, Bryan’s brother, says of plaintiff, "I . . . think of him andcare for him as a family member . . . ." He related how Jerry had been a source ofstrength when their maternal uncle died, and how he and Bryan, knowing it wouldbe difficult for Bryan’s mother, held the holiday Seders at their home inMassapequa, Long Island. "It was a difficult time for everyone, made easier bybeing in their loving home.” Elliot Kessler, another brother, states that the civilunion was important to Bryan because of his "interest in adopting children.” There are additional affidavits from family. A sister-in-law, Laura Kessler,stated, "There was never a time in all those 11 years when it was just Bryan, orjust Jerry. It was always Bryan and Jerry, together, spouses . . . as inseparable asany married couple could possibly be." The affidavits of other family members,cousins, aunts, godmother, echo these sentiments. Cousin Kim Marie Merrittsums up their loss, stating that since Bryans death, Jerry "is still working to putone foot in front of the other. We are all working to put our lives back togetherafter losing a beloved family member so young, so suddenly." Appendix Page 55
  • Friends of the Wests and Kesslers have come forward to provide evidence oftheir relationship. Alan Matzkin, for example, tells of Bryan’s sacrifice for Jerry inthe Spring of 1998, when Bryan temporarily set aside his legal career ambitions "tohelp Jerry improve his career prospects and the value of his business." Nancy M.Starznski, one of the many friends and business associates submitting affidavits,and a college friend who often celebrated family events and holidays togetherwith Jerry and Bryan, says, "David and I are heartbroken that this affidavit isnecessary to quantify the union between these two wonderful people. Their lovefor each other was so strong." Discussion New York does not compensate a spouse for spiritual or emotional loss, butit may compensate West for his pecuniary loss if it is determined that he is aspouse for purposes of the wrongful death statute. There is no infirmity of proof onthe factual issues. The undisputed evidence establishes that Jerry West and BryanKessler lived together as spouses from shortly after they met in 1993 until the year2004, when they took the opportunity to secure legal recognition of their union inthe State of Massachusetts. There, on May 19, 2004, they were joined legally aslawful spouses. Under New York law as it now stands, if West were a registered domesticpartner, he would be able to succeed to a rent-controlled apartment as a "familymember," would be able to recover had his partner been lost in the September 11 Appendix Page 56
  • tragedy, would be eligible for the derivative employment benefits of a city or stateemployed partner, including death benefits, would be eligible to adopt his partnersbiological child, and would be entitled to be free from discrimination on the basis ofsexual orientation under the civil rights and executive law. He would not, however,be able to recover as a spouse under the wrongful death statute based upon theholding of Raum v. Restaurant Assoc., 675 N.Y.S.2d 343, 347 (N.Y. Sup. Ct. App.Div. 1998), appeal dismissed, 92 N.Y.2d 946. At the time Raum was decided, however, there was no state-sanctioned unionequivalent to marriage anywhere in the United States. The development of the lawin Massachusetts provides a basis to distinguish Raum and its predecessors, whichwithheld recognition of a right of election under the New Yorks estate laws forsame-sex couples. The laws regarding recognition of sister-state marriages, such as acommon law marriage, provide a legal ground to revisit the meaning of the term“spouse” as used in the probate statute, and to distinguish inconsistent priorholdings, as in Raum. With respect to marriages entered into in sister states, New York adheres to thegeneral rule that marriage contracts, as long as they are valid where made, are valideverywhere, unless contrary to natural laws or statutes. A refusal of recognition isusually reserved for incestuous or polygamous marriages. Thus, notwithstandingthat in general the validity of a common law marriage is always open to suspicion,especially when one of the parties is dead, it will be recognized in New York if Appendix Page 57
  • found valid in the state where contracted. This is true for purposes of descent inthe Surrogates court, as well as for purposes of the wrongful death statute. Thus,notwithstanding the premise in Raum that unmarried heterosexual and homosexualcouples are treated equally under the New York wrongful death statutes, a commonlaw marriage may be established for an unmarried heterosexual couple under thejurisdiction of a sister state and the survivor becomes a "spouse" for purposes ofthe New York statute. It follows that, if plaintiff has a validly contractedmarriage in the State of Massachusetts, and if the marriage does not offend NewYork public policy as would an incestuous or polygamous union, it will berecognized in the State of New York for purposes of the wrongful death statute. Initially, the court acknowledges the precept that calls for a federal districtcourt to decline to decide issues unnecessary to the resolution of a case, especiallyin a diversity matter in which the court applies state law. Thus, the court willnot determine whether plaintiff has a valid marriage in the State of New York forall purposes, but only whether he may be considered a spouse for purposes of thewrongful death statute, much as New York’s highest court has held that a same-sexdomestic partner is a "family" member for the limited purposes of the New YorkCitys rent control laws. Although the court must examine the nature of theMassachusetts same-gender marriage and whether it can be distinguished from thetraditional state of marriage, the purpose of doing so is thus limited. To resolve the statutory spouse issue, discussion must primarily focus upon Appendix Page 58
  • what a Massachusetts marriage is compared to a traditional New York marriage,and determine whether New Yorks public policy precludes recognition under fullfaith and credit. “[T]here are some limitations upon the extent to which a state maybe required by the full faith and credit clause to enforce even the judgment of anotherstate in contravention of its own statutes or policy." Pacific Employers Ins. Co. v.Ind. Accident Comm’n, 306 U.S. 493, 502 (1939). Addressing the issue of policy first, New York has not enacted a mini-DOMA.“DOMA” refers to the federal Defense of Marriage Act, 1 U.S,C. § 7; 28 U,S,C. §1738C, which declares that a marriage is a union between a man and a woman, andthat no State shall be "required to give effect" to a same-sex union. It is unclear bywhat authority the Congress may suspend or limit the full faith and credit clause ofthe Constitution, and the constitutionality of DOMA has been put in doubt.Nevertheless, a significant majority of the states have passed what have come to beknown as “mini-DOMAs.” However, New York is not among them. Both the State of New York and the City of New York, recognize same-sexdomestic partnerships for purposes of employment benefits. New Yorks publicpolicy is also revealed in the decision in Braschi v. Stahl Assoc. Co., 74N.Y.2d 201, 544 N.Y.S.2d 784 (N.Y. 1989), which has been called thefirst appellate decision in the United States to give legal recognition to same-sexcouples. The Braschi court stated that a "realistic and valid" view of family"includes two adult lifetime partners whose relationship is long term and Appendix Page 59
  • characterized by an emotional and financial commitment and interdependence."Braschi, 74 N.Y.2d at 211. As a guide to assessing whether one is a "family"member eligible for succession to a rent-controlled apartment, and revealing theevolving attitudes toward same-sex couples, the court stated: In making this assessment, the lower courts of this State have looked to a number of factors, including the exclusivity and longevity of the relationship, the level of emotional and financial commitment, the manner in which the parties have conducted their everyday lives and held themselves out to society, and the reliance placed upon one another for daily family services . . . These factors are most helpful, although it should be emphasized that the presence or absence of one or more of them is not dispositive since it is the totality of the relationship as evidenced by the dedication, caring, and self-sacrifice of the parties which should, in the final analysis, control.Id. at 213. Finally, without being exhaustive as to the rights of gays and lesbians underNew York law, same-sex partners are entitled to recompense as those aggrieved bythe tragic loss of life on September 11. New York City has amended its DomesticPartner Registry "to extend New York Citys commitment to recognizing rightsof same-sex partners by revising the definition of domestic partners inthe administrative code to include persons who have entered civil unions ormarriages not explicitly recognized by New York State in other jurisdictions."While other jurisdictions were enacting mini-DOMAs, New York amendedCivil Rights Law § 40-e (regarding equal protection) to expressly prohibitdiscrimination on the basis of sexual orientation, L. 2002, Ch. 2, § 15. The Appendix Page 60
  • Legislature also amended Executive Law § 291 to prohibit discrimination inemployment, education, and housing accommodations, L. 2002, Ch. 2, § 2. Iconclude that New Yorks public policy does not preclude recognition of a same-sex marriage entered into in a sister state. The next issue is the Massachusetts ruling recognizing same-gendermarriages. See Goodridge v. Dep’t of Health, 798 N.E.2d 941 (Mass.2003). Massachusetts citizens, both heterosexual and homosexual, are entitled tothe benefits and protections of a state-sanctioned marriage under theMassachusetts Constitution. The issue remains whether, under the full faith andcredit doctrine or principles of comity, plaintiff will be recognized as a spouse inNew York, as would a spouse in a sister state’s common law marriage. Under principles of full faith and credit and comity, and following authoritywhich advances the concept that citizens ought to be able to move from one stateto another without concern for the validity or recognition of their marital status,New York will recognize a marriage sanctioned and contracted in a sister state,and there appears to be no valid legal basis to distinguish one between a same-sexcouple. Unlike a non-ceremonial common law marriage contracted in a sister state,which may be dissolved at will, yet is recognized in New York, theMassachusetts marriage requires a sanctioned civil ceremony, a license, and,significantly, a divorce to end the union. While marriage is defined as a "civil contract," it is not subject to Appendix Page 61
  • dissolution at the will of the parties. Marriage has always been subject to legislativecontrol. Statutes prescribe the age at which parties may contract to marry, theprocedure or form essential to constitute marriage, the duties and obligations itcreates, its effects upon the property rights of both, present and prospective, andthe acts which may constitute grounds for its dissolution. In short, marriage is acivil contract regulated by the state in its conduct and its dissolution. TheMassachusetts same-gender marriage conforms in all respects to the requirementsfor a traditional New York marriage. Thus, the ultimate issue is whether the New York wrongful death statuteexcludes spouses who are in every material way sanctioned in a union for lifesolely because they may not be properly described as a husband or a wife, or morepointedly, because they are both men or both women. Taking heed of JusticeBrandeis admonition, that "we must be ever on our guard, lest we erect ourprejudices into legal principles," New State Ice Co. v. Liebman, 285 U.S. 262, 311(1932) (Brandeis, J. dissenting), this court must consider the legislative purpose aswell as the legislative language to determine whether plaintiff is a person entitledto such protection. This court adheres to this analytical framework regardingstatutory construction, especially in the sensitive area of family matters. The court acknowledges that at the time the New York wrongful deathstatutes were written, the use of the term “spouse” did not envision inclusion of asame-sex marital partner. But as the concepts of marriage evolve over time,leaving behind the common law doctrine that a woman was the property of her Appendix Page 62
  • husband, and her "legal existence" merged into that of her husband, so too publicopinion regarding same-sex unions is evolving. At the time the statute was written, there were no sanctioned same-sexcouples, much less domestic partnerships, civil unions, reciprocal beneficiaries,and, as in the Netherlands, full fledged same-sex marriage. Indeed, homosexualityhad not yet been removed from the professional medical and psychologicaldefinitions of disease, and consenting adult homosexual intimacy was consideredcriminal. Nor had Ford, General Motors, Chrysler. and Coca Cola providedbenefits to the same-sex partners of its employees. The words of the statute, referring to a spouse as a husband or wife, operateto clarify that the intended primary beneficiaries are the members of the legallysanctioned family unit which is still intact. There is a compelling reason toconstrue the New York wrongful death statute to include a Massachusetts spouseunder the fundamental tenet of construction that a statute should be construed so asto be consistent with constitutional requirements. Spouse is a gender neutral word, and it applies to a man or a woman,including the plaintiff, who was lawfully married pursuant to Massachusettscommon law, construed in light of the Massachusetts Constitution. As the statutehas been construed to recognize a common law couple that has not been joined by acivil ceremony and may separate at will, it is impossible to justify, under equalprotection principles, withholding the same recognition from a union that meets allthe requirements of a marriage in New York but for the sexual orientation of its Appendix Page 63
  • partners. For example, with respect to wrongful death statutes, the United StatesSupreme Court has held that a distinction between illegitimate and legitimatechildren for purposes of recovery is an irrational one. Glona v. American Guar. &Liab. Ins. Co., 391 U.S. 73 (1968). When a statute draws a distinction based upon marital status, the distinctionmust be based upon some ground that rationally explains the different treatment,and the distinction must relate to a legitimate state interest. Here, there is nodifference for state purposes between a married person and a person joined in asame-gender marriage under the law of Massachusetts, except sexual orientation.Upon examination of the rejection of homosexual unions in the past, the reasonspropounded for supporting distinctions, such as the at-will nature of homosexualrelationships and the absence of children, societys future, from their unions, simplydo not apply. The same-gender marriage lawfully contracted in Massachusetts isindistinguishable for societal purposes from the nuclear family and traditionalmarriage. Cf. Langan v. St. Vincent’s Hosp., 196 Misc.2d 440, 765 N.Y.S.2d 411(2003) (Vermont civil union). Conclusion Accordingly, this court finds, as have other courts addressing the issue ofwrongful death benefits for a same-sex partner, that plaintiff Jerry West, asurviving spouse under Massachusetts law, is included within the meaning of“spouse” as that term is used in New Yorks wrongful death statute, and that hehas standing to recover against defendant Mercy Hospital of New York for Appendix Page 64
  • the wrongful death of Bryan Kessler. IT IS BY THE COURT THEREFORE ORDERED that with respect to the plaintiff’s wrongful death claim, defendant’ Motion to Dismiss is hereby denied, and plaintiff’s Motion for Partial Summary Judgment is granted. Dated: August 15, 2005 ______________________________________ The Honorable Donald Gumper, District JudgeDG:lg:sc Appendix Page 65
  • Ronald DewgoodeDewgoode, Goforth & Prosper735 E. 3rd Ave.New York, N.Y. 00103 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORKJERRY WEST, in his Capacity as Executor )of the Estate of BRYAN KESSLER, Deceased, )and JERRY WEST, Individually, ) ) Plaintiffs, ) ) ) Index No: 11618/2005 v. ) NOTICE OF APPEAL ) )MERCY HOSPITAL OF NEW YORK, ) ) Defendant. ) ) NOTICE OF APPEAL Defendant Mercy Hospital, by and through its attorney, Ronald Dewgoode,hereby notifies this Honorable Court pursuant to Fed. R. App. P. 4(a)(1) thatDefendant intends to perfect an appeal of the Order issued August 15, 2005, inwhich the Court denied Defendant’s Motion for Partial Dismissal. Respectfully submitted, ________________________ Ronald Dewgoode N.Y. Bar No. 13187 Dewgoode, Goforth & Prosper 735 E. 3rd Ave. New York, N.Y. 00103 Appendix Page 66
  • CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this Notice of Appeal wasserved on the following person by depositing a copy in the United States Mail, firstclass postage prepaid, on the 12th day of September 2005, addressed to: David Barrett, Esq. Grynn & Barrett, PC 419 Park Avenue South, 2nd Floor New York, NY 10016 _________________________ Ronald Dewgoode Dewgoode, Goforth & Prosper 735 E. 3rd Ave. New York, N.Y. 00103 Appendix Page 67