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Langan v. St. Vincent's Hospital of New York10/11/2005
ermitting consensual sodomy between married persons but banning same conduct between unmarried persons bears no rational relationship to society's interest in fostering and promoting marriage]). And, tellingly, the majority's rejection of the equal protection claim does not include any hint or suggestion of how preventing the plaintiff from asserting a wrongful death claim promotes the State's interest in fostering the institution of marriage, "thus leaving constitutional analysis incomplete" (Trimble v Gordon, 430 US 762, 769). Indeed, the only real effect of the majority's position is to provide a windfall to a potential tortfeasor.
Accordingly, I respectfully dissent and would hold that the application of New York's wrongful death statute to deny the right of a surviving member of a Vermont civil union to maintain an action to recover damages for the wrongful death of his or her partner is inconsistent with the right to equal protection of the laws. I would further hold that the proper remedy is to extend the benefit of EPTL 5-4.1 to include the plaintiff as a surviving member of a Vermont civil union (see People v Liberta, 64 NY2d 152, 170, cert denied 471 US 1020; see also Califano v Westcott, 443 US 76, 89-90). In my judgment, therefore, the order appealed from should be affirmed insofar as appealed from.
ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, that branch of the motion which was to dismiss the cause of action to recover damages for wrongful death is granted, the cross motion is denied, and the cause of action to recover damages for wrongful death is dismissed.
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