Raum v. Restaurant Associates, Inc.

• Decision Date: 09 July 1998
• Parties: , 1998 N.Y. Slip Op. 6897 Donald RAUM, etc., Plaintiff-Appellant, v. RESTAURANT ASSOCIATES, INC., et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 343

675 N.Y.S.2d 343

252 A.D.2d 369, 1998 N.Y. Slip Op. 6897

Donald RAUM, etc., Plaintiff-Appellant, v. RESTAURANT ASSOCIATES, INC., et al., Defendants-Respondents.

Supreme Court, Appellate Division First Department.

July 9, 1998.

Martin E. Karlinsky, for plaintiff-appellant.

Frank Gulino, Neil L. Fishman and Joseph A. Oliva, for defendants-respondents.

ROSENBERGER, J.P., WALLACH, RUBIN and TOM, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Shelia Abdus-Salaam, J.), entered August 5, 1996, which granted defendants' motions for partial summary judgment dismissing plaintiff executor's individual wrongful-death claims against them, affirmed, without costs.

The IAS court correctly held that the wrongful-death statute (EPTL 5-4.1), which, by its terms (EPTL 1-2.5, 4-1.1, 5-1.2), does not give individuals not married to the decedent (other than certain blood relatives) a right to bring a wrongful-death action, operates without regard to sexual orientation, in that unmarried couples living together, whether heterosexual or homosexual, similarly lack the right to bring a wrongful-death action, and, as such, the statute does not discriminate against same-sex partners in spousal-type relationships. Nor is there merit to plaintiff's argument that the word "spouse" in EPTL § 5-1.2 should be read to include such same-sex partners (see, Greenwald v. H & P 29th St. Assocs., 241 A.D.2d 307, 659 N.Y.S.2d 473 [construing the spousal privilege in CPLR 4502(b) and distinguishing Braschi v. Stahl Assocs. Co. (74 N.Y.2d 201, 544 N.Y.S.2d 784, 543 N.E.2d 49) and Matter of Jacob (86 N.Y.2d 651, 636 N.Y.S.2d 716, 660 N.E.2d 397) ]; Matter of Cooper, 187 A.D.2d 128, 592 N.Y.S.2d 797, affg. 149 Misc.2d 282, 564 N.Y.S.2d 684, appeal dismissed 82 N.Y.2d 801, 604 N.Y.S.2d 558, 624 N.E.2d 696 [construing the right of election in EPTL 5-1.1(c) ] ). The dissent unduly strains the language of EPTL 5-1.2, defining a husband or wife to be a surviving spouse, to conclude that the statute does not preclude from the classification persons who are other than a husband or wife. Although the dissent would apply a "functional" rather than a "literal" interpretation, that endeavor is contrary to standard canons of statutory construction. Whatever expansion may be given various family-related terms in other statutes and codes, the EPTL 5-1.2 definition in this regard is clear and preclusive. Since it is not within the judicial province to redefine terms given clear meaning in a statute (Matter of Cooper, supra ), plaintiff's sole recourse lies in legislative action.

For similar reasons, Braschi v. Stahl Associates (74 N.Y.2d 201, 544 N.Y.S.2d 784, 543 N.E.2d 49), upon which the dissent relies, does not change the analysis. Braschi was a decision propelled by policy considerations not pertinent to the present case. In Braschi, involving a non-marital surviving life partner of the deceased rent-controlled tenant, the Court was required to interpret the term "family", within the meaning of the rent-control statute. Preliminarily, an expansive definition for those purposes has no direct bearing on an entirely different statute. Moreover, even for purposes of analogizing similar terms in different statutes, the comparison must fail: "family" is an inherently more expansive classification than "spouse" under New York law, and it is as a spousal-equivalent that plaintiff herein claims standing. Further, the Braschi court drew a sharp distinction between rent-control laws, which serve to stabilize living arrangements, and the EPTL, which exists to ensure the orderly succession of property rights among clearly defined classes of persons. Finally, the dispositive point is that the Braschi Court found "family" to be undefined in the rent-control statute, thus invoking the judicial role of resolving ambiguities in legislative terms, whereas in EPTL 5-1.2, the Legislature defined the term "spouse". This circumstance should foreclose any further judicial intervention.

All concur except ROSENBERGER, J.P., who dissents in a memorandum.

ROSENBERGER, Justice Presiding (dissenting).

I dissent, and would reverse and remand, on the ground that under the Equal Protection Clause of the State and Federal Constitutions, plaintiff cannot be denied standing to sue for wrongful-death damages pursuant to EPTL 5-4.1. The motion court erred in granting defendants' motion for partial summary judgment dismissing plaintiff's wrongful-death claim.

Under EPTL 5-4.1, a decedent's "distributees" are entitled to sue a tortfeasor for wrongful-death damages. EPTL 1-2.5 defines a distributee as a person who would be entitled to a share of the decedent's property if he died intestate. The eligible distributees, according to EPTL 4-1.1, are the surviving "spouse" and various enumerated types of blood relatives (e.g., parents, issue, brothers and sisters).

Nowhere in the EPTL is a surviving "spouse" limited to a "husband or wife". EPTL 5-1.2 merely states, "A husband or wife is a surviving spouse" unless the parties divorced or separated, or the marriage was void, or the survivor abandoned or refused to support the decedent. Rather than limiting the class of people who could be considered a surviving "spouse," EPTL 5-1.2 provides that a husband or wife will be presumed to be a member of this class unless certain things have occurred. Thus, the statutory language does not foreclose plaintiff's argument that he should be considered a surviving spouse for purposes of bringing a wrongful-death action.

Moreover, precedent exists for preferring a functional over a literal interpretation of a statute whose purpose is to promote the public welfare, so that homosexual couples will not be disadvantaged by their inability to give their relationship a legal status. In Braschi v. Stahl Associates (74 N.Y.2d 201, 206, 544 N.Y.S.2d 784, 543 N.E.2d 49), the Court of Appeals held that the deceased tenant's life partner could be considered a "family member" with succession rights to the tenant's rent-controlled apartment. The court believed that the applicable statute should be read broadly, because its purpose is to promote the public good and prevent landlords from unjustly exploiting tenants (id. at 208, 544 N.Y.S.2d 784, 543 N.E.2d 49).

The intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life. In the context of eviction, a more realistic, and certainly equally valid, view of a family includes two adult lifetime partners whose relationship is long term and characterized by an emotional and financial commitment and interdependence (id. at 211, 544 N.Y.S.2d 784, 543 N.E.2d 49).

Accordingly, the court held that a surviving life partner should be given the chance to prove that his household arrangements with the decedent were familial. Factors to be considered would include the duration of the relationship, whether their friends and relatives regarded them as a couple, their shared financial responsibilities for the household and assumption of legal rights and responsibilities such as power of attorney or executor of estate (id. at 212-213, 544 N.Y.S.2d 784, 543 N.E.2d 49). All these indicia of familial relations are present in the instant case.

However, in Matter of Cooper (187 A.D.2d 128, 592 N.Y.S.2d 797, appeal dismissed 82 N.Y.2d 801, 604 N.Y.S.2d 558, 624 N.E.2d 696), the Second Department rejected a homosexual partner's claim to be considered a surviving "spouse" for purposes of intestate succession. This case is distinguishable. Cooper seems to rest mainly on the inadequacy of plaintiff's equal protection challenge to the state's non-recognition of same-sex marriage. Plaintiff here argues that since he is barred from marrying, his marital status over which he had no control, should not be a barrier to tort damages.

Finally, an entity may have a different legal status in different contexts for public-policy reasons. For instance, a fetus is considered a person when its injuries give rise to a criminal assault prosecution (People v. Hayat, 235 A.D.2d 287, 653 N.Y.S.2d 305, lv. denied 89 N.Y.2d 1036, 659 N.Y.S.2d 866, 681 N.E.2d 1313), but not in the context of abortion (Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147). Similarly, a homosexual partner could be a surviving "spouse" under EPTL 4-1.1 when he seeks to recover against a tortfeasor, but not when he seeks to recover against the estate (and possibly frustrate the decedent's intentions as expressed in the invalidated will). It makes sense to construe the intestacy statute's definition of "surviving spouse" narrowly when the opposing parties are innocent heirs, and broadly when they are tortfeasors.

This argument may appear to conflict with Secord v. Fischetti (236 A.D.2d 206, 653 N.Y.S.2d 551, lv. denied 91 N.Y.2d 802, 667 N.Y.S.2d 682, 690 N.E.2d 491), in which we held, without discussion, that it was not unreasonable for the Crime Victims Board to decide that homosexual life partners were not surviving "spouses" to be compensated under Executive Law § 624(1)(b). Secord could nonetheless be distinguished as presenting a different situation: unlike the wrongful-death statute, this one contained an additional provision, § 624(1)(c), which allowed "any other person dependent for his principal support upon a victim of a crime" to recover damages as well. Therefore, as a policy matter, there was no need to extend surviving "spouse" beyond its traditional meaning. By contrast, the wrongful-death statute makes no alternative provision for homosexual dependents, which puts them at a disadvantage and raises equal protection problems unless surviving "spouse" is interpreted more broadly.

Plaintiff argues that it would be unconstitutional to interpret the relevant statutes so as to deny homosexual life partners...