Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
Third Department Says Court Should Entertain Civil Union Dissolution Case
In March, the Appellate Division, Third Department, reversed a Schenectady County Supreme Court dismissal of a case seeking dissolution of a same-sex civil union, which was entered into in Vermont. With the decision in Dickerson v. Thompson, 2010 NY Slip Op 02052 (3d Dept. 3/18/10) (Cardona, P.J., Peters, Rose, Kavanagh and McCarthy, JJ.), one of the more vexing questions for New York residents whose civil unions are foundering ' “How do we get out of this?” ' may have been answered. Then again, perhaps it was not.
The Case
Audrey Dickerson and Sonja Thompson, both residents of New York, traveled to Vermont in 2003, where they entered into a civil union in accordance with Vermont law (see Vt. Stat Ann., tit 15, ' 1201). Neither of them had ever lived in Vermont, but that state's law did not require citizenship or residency of those entering into civil unions. Vermont does, however, require at least one party to a civil union to be a resident of the state for a minimum of one year prior to filing for dissolution of a civil union.
By 2007 the couple was ready to go their separate ways. But how? As New York residents, they did not qualify for relief in the Vermont courts. New York's law also offered no guarantees, as it does not permit same-sex couples to enter into marital or civil unions, and thus has no specific provisions for handling their termination. Dickerson therefore commenced this action in New York for equitable and declaratory relief seeking dissolution of the civil union and a declaration that she was free of all the benefits, protections and responsibilities of the legal relationship. The defendant, Thompson, failed to appear in the action. Dickerson therefore moved Supreme Court, Schenectady County, for a default judgment.
The Issue of Jurisdiction
Rather than grant the requested relief, the court, sua sponte, raised the issue of its own jurisdiction to hear the case. Finding that such was lacking following a hearing on the issue, the court dismissed the plaintiff's complaint for lack of subject matter jurisdiction. To explain its decision, Supreme Court stated that New York's public policy “does not recognize any legal relationship between same-sex partners, does not confer any rights or impose any obligations on such a relationship and does not afford any means by which to dissolve such a relationship.”
The plaintiff took the case up to the Appellate Division with an argument centered around the concept of comity. The plaintiff's case was bolstered by an amicus brief submitted by Lambda Legal Defense and Education Fund, Inc., the gay, lesbian and transgender advocacy group currently involved in many same-sex union suits nationwide.
Dickerson argued that New York should recognize her Vermont civil union for the limited purpose of dissolving it. Citing to Ehrlich-Bober & Co. v. University of Houston, 49 NY2d 574 (1980), the plaintiff noted that “[the] doctrine of comity is not a rule of law, but one of practice, convenience and expediency. It does not of its own force compel a particular course of action. Rather, it is an expression of one [s]tate's entirely voluntary decision to defer to the policy of another” (internal quotation marks and citations omitted). Therefore, if recognizing Vermont's governmental act of permitting same-sex civil unions were found not inconsistent with New York's public policy, Dickerson said, New York should give recognition to Vermont's act, at least for the limited purpose she proposed.
A Matter of Policy
In deciding the issues, the Third Department cited first to Mertz v. Mertz, 271 NY 466 (1936), which said New York's “public policy” had long been defined as being comprised of the State's Constitution, its statutes and its judicial records. So these sources would also define New York's public policy concerning same-sex couples' rights. Said the court, “Today, the public policy of our state protects same-sex couples in a myriad of [sic] ways. Two provisions of the Public Health Law define a domestic partner to include one who is 'formally a party in a domestic partnership or similar relationship with the other person, entered into pursuant to the laws of the United States or of any state, local or foreign jurisdiction'“ (Public Health Law ' 2805-q (2)(a); ' 4201(1)(c)(i) (emphasis added)). Thus, parties to a civil union cannot be denied hospital visitation rights (see Public Health Law ' 2805-q) and have the right to determine the disposition of one another's remains (see Public Health Law ' 4201(1)(c)). Furthermore, New York City's Domestic Partnership Law, which defines “domestic partners” to include members of a civil union (see City of N.Y. Administrative Code ' 3-240(a)), forbids partners in a civil union from entering into a domestic partnership with anyone else (see City of N.Y. Administrative Code ' 3-241).
Also cited by the court as illustrations of New York's public policy were a number of executive and local orders issued over the past several years extending benefits to same-sex couples, thereby evidencing governmental recognition of those relationships. See, e.g., Directive of Governor Paterson, Memorandum from David Nocenti to All Agency Counsel re: Decision in Same Sex Marriages, May 14, 2008; Westchester County Executive Order No. 3 of 2006; 9 NYCRR 5.113.30 (surviving same-sex partners entitled to same benefits as spouses from State's Crime Victims Board).
New York's legislature also signaled its recognition of the legitimacy of same-sex partnerships after the 9/11 World Trade Center attacks when defining the term “surviving spouse” to include same-sex domestic partners. See September 11th Victims and Families Relief Act, L 2002, ch 73, ' 1 (legislative intent section specifies that domestic partners should be eligible for September 11th federal fund awards); L 2002, ch 467, ' 1 (amending Workers' Compensation Law to provide same-sex partners of September 11th victims with the same death benefits provided to spouses); L 2002, ch 176 (same-sex domestic partners of September 11th victims and their children eligible for World Trade Center Memorial Scholarship program).
Added to these sources of authority, the court said, must be the many New York court rulings that have recognized the legal rights of same-sex partners. See, e.g., Braschi v. Stahl Assoc. Co., 74 NY2d 201 (1989) (recognizing same-sex life partners as family members for purposes of challenging an eviction proceeding); Matter of Jacob, 86 NY2d 651 (1995) (permitting same-sex partner of a biological parent to adopt that parent's child); Lewis v. New York State Dept. of Civ. Serv., 2009 N.Y. Slip Op. 00283 and Martinez v. County of Monroe, 50 AD3d 189 (2008), lv denied 10 NY3d 856 (2008) (recognition of out-of-state same-sex marriage is not contrary to public policy even if the marriage could not have been solemnized in New York); Matter of Langan v. State Farm Fire & Cas., 48 AD3d 76 (2007) (although civil union entered into in Vermont does not confer on the participants all rights attached to such status in another jurisdiction, civil union may be recognized in New York as a matter of comity).
With all of these statutes, governmental policy statements and cases backing the recognition of same-sex marriages, civil unions and domestic partnerships, the Third Department declared that the recognition of a Vermont civil union could not be deemed contrary to New York's public policy.
Can We Hear It?
With the dispatch of questions concerning public policy, the final inquiry became whether Supreme Court had the power to entertain the action for dissolution of a civil union. In New York's Constitution, article VI,
' 7, Supreme Court is granted “general original jurisdiction in law and equity.” Citing to Matter of Fry v. Village of Tarrytown, 89 NY2d 714 (1997), the Third Department noted that a court of original, unlimited and unqualified jurisdiction is competent to entertain all causes of actions unless its jurisdiction has been specifically proscribed. “Here,” said the court, “while New York has not created a specific mechanism for dissolution of a civil union validly entered into in another state, neither has it exercised its power, by statute or other legislative enactment, to prohibit an action for dissolution of a civil union. Since Supreme Court's jurisdiction over the subject matter of this action has not been proscribed, and this matter involves a dispute for which 'adequate relief by means of an existing form of action is [un]available to the plaintiff' (Kalman v. Shubert, 270 NY 375, 378 (1936); see Doe v. NY City Bd. Of Health, 5 Misc.3d 424, 427 '(Sup. Ct, N.Y. County 2004)), Supreme Court is competent to adjudicate the case.”
Continuing Uncertainty
Having determined that dismissal of Audrey Dickerson's civil union dissolution action was error, the Third Department left the plaintiff with a rather unsatisfactory postscript: she may or may not be able to get any relief when Supreme Court does entertain her case. Citing to Lacks v. Lacks, 41 NY2d 71 (1976), the court warned, “[T]here is 'a clear distinction between a court's competence to entertain an action and its power to render a judgment on the merits. Absence of competence to entertain an action deprives the court of 'subject matter jurisdiction'; absence of power to reach the merits does not.'” So, even though Supreme Court has subject matter jurisdiction and may hear the case, the extent of any relief it may grant to Dickerson remains a question mark.
Janice G. Inman is Editor-in-Chief of this newsletter.
In March, the Appellate Division, Third Department, reversed a Schenectady County Supreme Court dismissal of a case seeking dissolution of a same-sex civil union, which was entered into in Vermont. With the decision in
The Case
Audrey Dickerson and Sonja Thompson, both residents of
By 2007 the couple was ready to go their separate ways. But how? As
The Issue of Jurisdiction
Rather than grant the requested relief, the court, sua sponte, raised the issue of its own jurisdiction to hear the case. Finding that such was lacking following a hearing on the issue, the court dismissed the plaintiff's complaint for lack of subject matter jurisdiction. To explain its decision, Supreme Court stated that
The plaintiff took the case up to the Appellate Division with an argument centered around the concept of comity. The plaintiff's case was bolstered by an amicus brief submitted by Lambda Legal Defense and Education Fund, Inc., the gay, lesbian and transgender advocacy group currently involved in many same-sex union suits nationwide.
Dickerson argued that
A Matter of Policy
In deciding the issues, the Third Department cited first to
Also cited by the court as illustrations of
Added to these sources of authority, the court said, must be the many
With all of these statutes, governmental policy statements and cases backing the recognition of same-sex marriages, civil unions and domestic partnerships, the Third Department declared that the recognition of a Vermont civil union could not be deemed contrary to
Can We Hear It?
With the dispatch of questions concerning public policy, the final inquiry became whether Supreme Court had the power to entertain the action for dissolution of a civil union. In
' 7, Supreme Court is granted “general original jurisdiction in law and equity.” Citing to
Continuing Uncertainty
Having determined that dismissal of Audrey Dickerson's civil union dissolution action was error, the Third Department left the plaintiff with a rather unsatisfactory postscript: she may or may not be able to get any relief when Supreme Court does entertain her case.
Janice G. Inman is Editor-in-Chief of this newsletter.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.