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NYS Bar Association Same-Sex Couples Recognition Report 2004

NYS Bar Association Same-Sex Couples Recognition Report 2004

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Publicado porPaul Schindler

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Published by: Paul Schindler on May 17, 2011
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11/28/2012

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As with standing to sue for pecuniary losses due to a partner’s wrongful

death, most states deny same-sex partners standing to seek redress for loss of

338

Id. at 418

339

Id. at 420 (consistent with the dissent in Raum, 675 N.Y.S.2d at 345).

340

Id. 420.

341

Id. at 420-21.

342

Id. at 422

343

Langan does not speak to whether marriages or unions in other countries (such as certain
provinces of Canada or some European countries) similarly will be accorded the same full faith and credit
in New York; however, there is no reason to believe they will not be similarly recognized. See infra
Section III.F.2., concerning full faith and credit and civil unions and Section II.B., concerning the
development of marriage and other mechanisms to recognize same-sex partnerships globally.

81

consortium.344

In New York “a cause of action for loss of consortium does not lie if the

alleged tortious conduct and resultant injuries occurred prior to the marriage.”345

There is

no reported decision in New York, however, that directly addresses a same-sex partner’s

claim for loss of consortium.346

3.

The Right to Receive a Financial Award from the Crime Victims
Board

The New York State legislature has recognized that “many innocent

persons suffer personal physical injury or death as a result of criminal acts” and that

“such persons or their dependents may thereby suffer disability, incur financial hardships,

or become dependent on public assistance.”347

The State Crime Victims’ Compensation

Board hears and determines crime victims’ claims for government financial assistance.348

Generally, the victim of the crime, a surviving spouse, parent or child of a victim who has

died as a direct result of the crime or “any other person dependent for his principal

support upon a victim of the crime who has died as a direct result of the crime” is eligible

to receive compensation from the Crime Victims’ Board.349

Thus, a married spouse

344

See Culhane, supra note 307, at 975-77 (discussing the unavailability of certain tort remedies to

same-sex partners).

345

Anderson v. Eli Lilly Co., 79 N.Y.2d 797, 798 (1991).

346

In Langan, Spicehandler’s surviving partner did not raise any derivative claims for loss of

consortium. 765 N.Y.S.2d at 412.

347

N.Y. EXEC. LAW § 620 (McKinney 2003).

348

Id. §§ 620, 621, 622, 623.

349

Id. § 624 provides in pertinent part that “the following persons shall be eligible for awards” from

the Crime Victims Board:
(a)

a victim of a crime;

(b)

a surviving spouse, grandparent, parent, stepparent, child or stepchild of a victim of a
crime who died as a direct result of such crime;
(c)

any other person dependent for his principal support upon a victim of a crime who died as

a direct result of such crime;
(d)

any person who has paid for or incurred the burial expenses of a victim who died as a
direct result of such crime, except such person shall not be eligible to receive an award for other

82

automatically is entitled to compensation, 350

but a surviving same-sex partner is eligible

to receive victim’s compensation only if he or she was principally dependent on the

decedent.351

This was the conclusion reached by the First Department in Secord v.

Fischetti.352

In Secord, the same-sex partner of a crime victim filed a claim with the

Crime Victims’ Board for compensation as a spouse, or alternatively, as a dependent.353

The court upheld the Crime Victims’ Board’s interpretation of the term “surviving

spouse” as not extending to “homosexual life partners,”354

and its finding that the partner

than burial expenses unless otherwise eligible under paragraph (a), (b) or (c) of this subdivision;
(e)

an elderly victim of a crime;

(f)

a disabled victim of a crime;

(g)

a child victim of a crime;

(h)

a parent, stepparent, grandparent, guardian, brother, sister, stepbrother or stepsister of a

child victim of a crime;
(i)

a surviving spouse of a crime victim who died from causes not directly related to the
crime when such victim died prior to filing a claim with the board or subsequent to filing a claim
but prior to the rendering of a decision by the board. Such award shall be limited to out-of-pocket
loss incurred as a direct result of the crime; and
(j)

a spouse, child or stepchild of a victim of a crime who has sustained personal physical

injury as a direct result of a crime.

350

The surviving marital partner of a crime victim is eligible to receive compensation from the Crime
Victims’ Board regardless of his or her contribution to the household income – essentially, a presumption
of principal dependence comes with the status of marriage. See id. § 624.

351

Notably, regardless of marital status, the claimant must demonstrate compensable losses. See
generally id.
at § 631. A married spouse whose spouse dies as a result of a crime will receive compensation
from the Crime Victim’s Board for statutorily covered expenses so long as the surviving spouse can
demonstrate compensable losses – regardless of whether s/he was dependent on his/her spouse. A same-
sex partner whose partner dies as a result of a crime will receive compensation from the Crime Victim’s

Board only if s/he was principally dependent on his/her partner and s/he can establish that s/he has
compensable losses for statutorily covered expenses. Id. See infra note 355 for a discussion of the term

“principally dependent.”

352

653 N.Y.S.2d 551 (1st Dep’t 1997).

353

Id. Section 624(1)(b) of the Executive Law allows the “surviving spouse” to apply for
compensation, and section 624(1)(c) allows a dependant who relies on the victim for principal support to
apply for compensation.

354

Id. (citing In re Cooper, 592 N.Y.S.2d 797, and N.Y. EXEC. LAW § 624(1)(b)).

83

of the victim had relied principally on his own income, not the income of the victim and,

thus, was not eligible for an award pursuant to section 624(1)(c). 355

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