Slattery v. City of New York

• Decision Date: 08 February 1999
• Citation: 686 N.Y.S.2d 683,179 Misc. 2d 740
• Parties: , 1999 N.Y. Slip Op. 99,080 Eileen F. SLATTERY et al., Plaintiffs, v. CITY OF NEW YORK et al., Defendants.
• Court: New York Supreme Court

Page 683

686 N.Y.S.2d 683

179 Misc.2d 740, 1999 N.Y. Slip Op. 99,080

Eileen F. SLATTERY et al., Plaintiffs, v.CITY OF NEW YORK et al., Defendants.

Supreme Court, New York County.

Feb. 8, 1999.

American Institute for Law & Justice(Vincent McCarthy and Brian Raum of counsel), for plaintiffs.

Michael D. Hess, CorporationCounsel of New York City(Georgia Pestana of counsel), for defendants.

LOUIS B. YORK, J.

In this action, plaintiffs, who are New York City property holders and taxpayers, challenge the validity of Local Law303(a), commonly known as the "Domestic Partners Law," and Mayoral Executive OrdersNos. 48 and 49, which the Local Law codifies.The statute went into effect on Saturday, September 5, 1998.Plaintiffs' challenge has several bases.First, they allege that defendants The City of New York and Mayor Rudolph Giuliani have acted illegally by legislating in the area of marriage and domestic relations--which, by statute, is under the exclusive jurisdiction of the New York State Legislature.Second, they allege that the challenged laws effectively recognize common law marriages, which are illegal as contrary to public policy pursuant to Law 1933, chapter 606 of the Laws of New York.SeeGotlib v. Ratsutsky, 195 A.D.2d 432, 433, 601 N.Y.S.2d 1, 2(1st Dept.1993), aff'd, 83 N.Y.2d 696, 613 N.Y.S.2d 120, 635 N.E.2d 289(1994).Third, according to plaintiffs, in extending health and retirement benefits to the domestic partners of City employees, defendants are exceeding their statutory and constitutional authority.Fourth, plaintiffs argue that defendants have attempted to give domestic partnership a marital status despite the absence of statutory or constitutional authority.

Ultimately, plaintiffs seek a declaration from this court that the Local Law and the Executive Orders are null and void; and, they ask this court to permanently enjoin defendants from implementing them.Initially, however, plaintiffs brought a motion for a preliminary injunction pending the final resolution of the lawsuit.Defendants responded by cross-moving to dismiss in lieu of serving an Answer to the Complaint.

At the outset, the court rejects plaintiffs' contention that defendants have submitted evidence or asserted arguments that are inappropriate on a motion to dismiss.For defendants to prevail on their cross-motion, they must show that plaintiffs have failed to state a cause of action.Williams v. New York City Housing Auth., 238 A.D.2d 413, 414, 656 N.Y.S.2d 332, 333(2d Dept.1997).In considering the cross-motion, the court can consider evidentiary materials for the purpose of assessing the viability of the complaint.Id.;seeAdams v. O'Connor, 245 A.D.2d 537, 666 N.Y.S.2d 497(2d Dept.1997)."[T]he criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one."Doria v. Masucci, 230 A.D.2d 764, 765, 646 N.Y.S.2d 363, 365(2d Dept.1996)(citation and internal quotation marks omitted), lv. denied, 89 N.Y.2d 811, 657 N.Y.S.2d 404, 679 N.E.2d 643(1997)(table).Here, the statute at issue is proper--and, indeed, necessary, for consideration.Plaintiffs have failed to detail any other respects in which defendants' arguments are improper.

Thus, the court turns to consideration of the issues before it.And, after careful consideration, the court finds that in enacting the law, the City did not impermissibly legislate in the area of marriage and properly utilized its legislative powers.Accordingly, the court denies the motion for a preliminary injunction and grants the cross-motion to dismiss.

Home Rule Law

Plaintiffs assert that the executive orders and ordinance at issue must fall under the home rule law.In this State, local governments have broad police powers relating to the welfare of their citizens.However, they cannot exercise their powers by adopting laws inconsistent with either constitutional or general state law.Consolidated Edison Co. of New York, Inc. v. Town of Red Hook, 60 N.Y.2d 99, 107, 468 N.Y.S.2d 596, 600, 456 N.E.2d 487(1983).In addition, local governments may be restrained by State Legislation that preempts areas of regulation.New York State Club Ass'n, Inc. v. City of New York, 69 N.Y.2d 211, 217, 513 N.Y.S.2d 349, 351, 505 N.E.2d 915(1987), aff'd, 487 U.S. 1, 108 S.Ct. 2225, 101 L.Ed.2d 1(1988).

I.Creating a Common Law Marriage

There can be little doubt that the public policy of this State has been to withhold recognition of common-law marriage, and it is unassailable that in its broad powers to regulate society, the State has the power to set standards and procedures to control such a basic institution as marriage.

People v. Allen, 27 N.Y.2d 108, 113, 313 N.Y.S.2d 719, 723, 261 N.E.2d 637(1970)(citation and footnote omitted).Common law marriage has been unconstitutional since 1933; and, the law is still in effect today.SeeRaum v. Restaurant Assoc., 252 A.D.2d 369, 374-375, 675 N.Y.S.2d 343, 347(1st Dept.1998), lv. dismissed, 92 N.Y.2d 946, 681 N.Y.S.2d 476, 704 N.E.2d 229(1998)(table);see alsoStorrs v. Holcomb, 168 Misc.2d 898, 645 N.Y.S.2d 286(Sup.Ct. Tompkins County1996)(denying Article 78 challenge to City Clerk's refusal to issue marriage license to same sex couple).Plaintiffs' first, second and fourth causes of action all center around the premise that in enacting the Executive orders and the Domestic Partners Law, defendants have improperly attempted to legalize common law marriage.

Initially, the court notes that the portion of the law relating to succession and occupancy rights, seeinfra pp. 686-687, simply reiterates state law as expressed in Braschi v. Stahl Assoc. Co., 74 N.Y.2d 201, 544 N.Y.S.2d 784, 543 N.E.2d 49(1989), and the relevant state laws.E.g., 9 NYCRR §§ 1727-8.2,2104.6,2204.6.Thus, to the extent that the ordinance gives succession and occupancy rights to domestic partners, it is not only consistent with, but patterned after, state law.

Next, the court examines the ordinance as a whole and assesses the merits of the first of plaintiffs' arguments.If, in fact, a domestic partnership is identical to a marriage, the challenged legislation would be impermissible under home rule law principles.However, a review of the challenged Domestic Partners Law and of the Domestic Relations Law, which regulates marriage in New York State, shows that a domestic partnership is different from a marriage in many respects.

Under Local Law303(a), two people can register with the City Clerk as domestic partners if:

(1) both individuals are New York City residents, or at least one is employed by the City;

(2) both are at least eighteen years old;

(3) neither one is married;

(4) neither one is involved in another Domestic Partnership;

(5) neither one has been involved in another Domestic Partnership within the six months immediately prior to the date of registration;

(6) the proposed partners are not related by blood in a manner that would prevent them from marrying in New York; and

(7) the proposed partners share a close, committed personal relationship; they live together; and they have been living together on a continuous basis.

To register as domestic partners, the pair simply must execute an affidavit of domestic partnership which declares them to be domestic partners and which further declares that they satisfy all of the above criteria.Upon registration, "to the extent not inconsistent with law, the city shall make benefits available to the domestic partners of city employees on the same basis as the city makes benefits available to the spouses of city employees."Among other things,

(1) City employees are entitled to bereavement and child care leaves of absence;

(2) City employees are entitled to health and retirement benefits;

(3) Domestic partners acquire visitation rights in City correctional and juvenile detention facilities, and in facilities operated by the New York City Health and Hospitals Corporation; and

(4) Domestic partners who are (a) tenants in buildings operated by the New York City Housing Authority or (b) tenants and cooperative residents in buildings under the jurisdiction of the Department of Housing Preservation and Development become eligible to qualify as family members for the purpose of succession or occupancy rights.

In addition, pursuant to subsequently applicable laws, domestic partners may become entitled to other rights and benefits.

Domestic Partnerships terminate automatically upon the marriage of one or both of the parties.Alternatively, one or both of the partners can file a termination statement with the city clerk.If only one of the partners has signed the statement, he or she must notify the other partner of the termination by registered mail, return receipt requested.No grounds for the termination must be specified and no further procedures are required to effectuate the termination.

The formal requirements regulating marriages, on the other hand, are far more stringent than those regulating domestic partnerships.Unlike a domestic partnership, a marriage is not effectuated by the mere filing of an affidavit.Instead, to be valid a marriage must be solemnized by an authorized religious leader or an authorized leader of the Society for Ethical Culture; the mayor, city clerk or other authorized local official; a New York state or a federal judge, or an authorized judicial officer.Domestic Relations Law § 11.Furthermore, although no particular form of ceremony is required, the parties must solemnly declare in the presence of the officiator that "they take each other as husband and wife."Domestic Relations Law § 12.

Second, several prerequisites must be satisfied before a couple can be joined in marriage.Before solemnizing their marriage the parties must apply with the town or city clerk for a marriage licence.Domestic Relations Law § 13.When two individuals apply for a license, the clerk requires each one to sign and verify a statement or...