Passante v. Walden Printing Co.

• Decision Date: 01 July 1976
• Citation: 385 N.Y.S.2d 178,53 A.D.2d 8
• Parties: Claim of Ernest PASSANTE, Appellant, v. WALDEN PRINTING COMPANY et al., Respondents, Workmen's Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 178

385 N.Y.S.2d 178

53 A.D.2d 8

Claim of Ernest PASSANTE, Appellant, v WALDEN PRINTING COMPANY et al., Respondents Workmen's Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department.

July 1, 1976.

Michael Nardone, Highland (Richard Nardone, Highland, of counsel), for appellant.

Herbert Lasky, New York City (Louis Busell, New York City, of counsel), for Walden Printing Company and another, respondents.

Louis J. Lefkowitz, Atty. Gen. (Henriette B. Frieder and Daniel Polansky, New York City, of counsel), for Workmen's Compensation Bd., respondent.

Before KOREMAN, P.J., and GREENBLOTT, KANE, MAIN and REYNOLDS, JJ.

OPINION FOR REVERSAL

GREENBLOTT, Justice.

Section 16 of the Workmen's Compensation Law grants death benefits to any surviving wife of a deceased male employee, but restricts the availability of such benefits only to those surviving husbands who demonstrate dependency upon deceased female employees. We are called upon to determine the constitutionality of this sexbased classification under the Equal Protection Clause of the Fourteenth Amendment. We conclude that the dependency requirement works a denial of equal protection in a number of respects and therefore must be invalidated.

The standards for review and applicable guidelines for determining the validity of differentiations based on sex have recently been expounded upon in two decisions of the United States Supreme Court, Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 and Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514. In Frontiero, a woman Air Force officer sought increased allowances for quarters and medical and dental benefits by claiming her husband as a dependent. Under the statutes there involved a serviceman was automatically entitled to claim his wife as a dependent; a servicewoman could only claim her husband as a dependent upon a factual showing of dependency for more than one-half of his support. Sharron Frontiero's husband did not qualify as a dependent under the statutory test. The majority of the court stated at the outset that 'classifications based upon sex, like classifications based upon race, alienage, and national origin, are inherently suspect and must therefore be subjected to close judicial scrutiny' (411 U.S. at 682, 93 S.Ct. at 1768). As our Court of Appeals has recently indicated, to survive such scrutiny more than merely a rational basis for the differentiation must be shown (Alevy v. Downstate Med. Center, 39 N.Y.2d 326, 384 N.Y.S.2d 82, 348 N.E.2d 537 (1976)). Applying the appropriate test to the statutes before it in Frontiero, the Supreme Court noted that they 'operate so as to deny benefits to a female member * * * who provides less than one-half of her spouse's support, while at the same time granting such benefits to a male member who likewise provides less than one-half of his spouse's support. Thus * * * these statutes command 'dissimilar treatment for men and women who are * * * similarly situated' (Reed v. Reed, 404 U.S. 71 at 77, 92 S.Ct. 251, 30 L.Ed.2d 225)' (Frontiero v. Richardson, supra, 411 U.S. p. 688, 93 S.Ct. p. 1771).

The statute presently before us likewise grants death benefits to all widows, but not to all widowers. The parallel means by which it thus commands dissimilar treatment for those who are similarly situated is obvious. Respondents would distinguish Frontiero on the ground that the justification advanced for the distinction in that case was an impermissible one, to wit, administrative convenience. We submit that respondent misapprehends the Supreme Court's majority's rationale. The position of the Government in Frontiero, similar to that taken by respondents here, is that since women are frequently dependent for support upon their husbands, the statute did no more than grant to wives of servicemen a conclusive presumption of dependency so as to eliminate the necessity for hearings at which proof on the issue would be required. The court characterized this explanation of the statutory scheme as 'to say the least, questionable' (411 U.S. at 690, 93 S.Ct. 1764), but further noted that if put to an actual test of dependency, many wives would fail to qualify for benefits.

This latter finding is most relevant to the question at bar, for in urging that widows are entitled to a conclusive presumpti of dependency for purposes of section 16, respondents suggest that it is justified by a policy of promoting the public good by protecting Workmen and their dependents. This rationale not only admits of being discriminatory is purpose, it also fails to convince as soon as it appears that a substantial number of married women are employed or independently wealthy and are not in fact dependent upon their husbands for support (see 411 U.S. at 689, n. 23, 93 S.Ct. 1764).

Respondents point to Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189, where a tax exemption was granted to all widows but denied to all widowers, as supporting the proposition that a legislature may validly act on the presumption that surviving female spouses are more likely to be financially dependent than their male counterparts. This rationale is applicable in the present case, it is urged, because death benefits are a right granted to the survivor and not to the deceased employee. Aside from the fact that the Kahn court deferred to the greater leeway given states in making classifications for purposes of taxation (see 416 U.S., p. 355, 94 S.Ct. 1734), we reject respondents' attempt at justification which ignores the...