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In a case of first impression, a judge has ruled that the same-sex partner of an attorney who died after being struck by a hit-and-run driver may pursue a wrongful-death action against a local hospital as a spouse under Vermont law. Granting full faith and credit to Vermont’s civil union law, Nassau County, N.Y., Supreme Court Justice John P. Dunne determined that John Langan could move forward with his wrongful-death lawsuit pursuant to New York law against St. Vincent’s Hospital for the death of attorney Neal Conrad Spicehandler. However, the judge’s decision, released Monday, cautioned that it did not determine whether Langan should be considered a spouse in the state “for all purposes,” but instead limited the plaintiff’s spousal status to the wrongful-death issue. In reaching his decision, Justice Dunne determined that Vermont’s civil union created a marriage lawfully sanctioned and contracted in a sister state, and that New York’s public policy did not preclude recognizing it as such. He further determined in his 25-page decision that because the New York Court of Appeals has held that the state’s wrongful death statute, under the Estates, Powers & Trusts Law, allows a “spouse” in a common-law union from a sister state to bring a wrongful-death action, those rights should be afforded to same-sex couples joined by Vermont’s civil union law. “[I]t is impossible to justify, under equal protection principles, withholding the same recognition from a union which meets all the requirements of a marriage in New York but for the sexual orientation of the partners,” the judge wrote. Langan and Spicehandler were joined in a civil union in Vermont a few months after the state passed its law in July 2000. Vermont Civil Union Law, enacted at Title 15 � 1204, provides that same-sex couples joined in a civil union have all of the same benefits, protections and responsibilities as those granted to spouses in traditional marriages. Spicehandler, a solo practitioner from Massapequa, N.Y., was allegedly hit while walking in Midtown Manhattan by Ronald Popadich during a three-day hit-and-run spree targeting pedestrians in February 2002. Spicehandler was admitted to St. Vincent’s for a fractured leg but died three days later from an embolus, according to the plaintiff’s court papers. Langan, represented by Lambda Legal Defense and Education Fund, a national gay and lesbian civil rights organization based in New York, filed a wrongful-death suit in Nassau County against the hospital alleging that St. Vincent’s was reckless and negligent in administering care, and that it failed to obtain informed consent for treatment. The lawsuit, Langan v. St. Vincent’s, 11618-02, also alleges that Langan, as Spicehandler’s surviving spouse, is entitled to pecuniary damages and loss of support and services damages under the state’s wrongful-death law. Lambda attorney Adam L. Aronson described Monday’s decision as “extremely eloquent.” “This is actually a very conservative decision because it relies on well-established, longstanding principles of New York law,” he said. St. Vincent’s Hospital of New York is represented by Richard Paul Stone of Costello, Shea & Gaffney. He could not be reached for comment. Granting summary judgment to the plaintiffs on the issue of Langan’s standing to sue for wrongful death, Justice Dunne considered St. Vincent’s argument that the federal Defense of Marriage Act (DOMA), enacted by Congress in 1996 at 28 U.S.C. � 1738, precluded the wrongful-death action. The law provides, in part, that “marriage” as a legal union is only between one man and one woman as husband and wife, and that the word “spouse” refers only to a person of the opposite sex. Also pursuant to the Defense of Marriage Act, one state is not required to heed another state’s recognition of “a relationship between persons of the same sex treated as a marriage.” St. Vincent’s argued that the civil union between the two men was a “narrow circumstance” created by the federal law, which allowed for an exception to the U.S. Constitution’s Full Faith and Credit doctrine. But Justice Dunne appeared persuaded by Langan’s argument, which asserted that the Defense of Marriage Act merely allows states, if they choose, to affirmatively deny same-sex unions in other states. Counsel for Langan asserted that while 37 other states have used the federal law to pass their own laws establishing that they do not recognize same-sex unions in other jurisdictions, some 13 states, New York among them, have not codified the apparent power that the Defense of Marriage Act provides to states. Agreeing with the argument advanced by the plaintiff, Justice Dunne also questioned the constitutionality of the Defense of Marriage Act. “It is unclear by what authority the Congress may suspend or limit the full faith and credit clause of the Constitution, and the constitutionality of DOMA has been put in doubt,” he wrote. Justice Dunne’s analysis also distinguished the facts before him from a 1998 Appellate Division, First Department, decision in Raum v. Restaurant Assoc., 252 AD2d 369, in which the court affirmed the dismissal of a wrongful-death claim brought for the benefit of a same-sex spouse. The court in Raum concluded that “spouse” should not be read to include same-sex partners. The judge reasoned that Raum was inapplicable because it was decided before the Vermont civil union law, as was a 1993 Appellate Division, 2nd Department, case, In re Cooper, 187 AD2d 128. There, the appeals panel affirmed the Kings County Surrogate’s determination that the ordinary and accepted meaning of “spouse” is “husband or wife.” The judge also observed that under New York law as it stands now, Langan, if registered as a domestic partner, “would be able to succeed to a rent-controlled apartment … would be able to recover had his partner been lost in the September 11 tragedy,” and would be entitled to other benefits as a registered partner. Finally, Justice Dunne observed that the Superior Court in California and the Superior Court in Washington, D.C., have granted spousal status for wrongful-death actions to partners of same-sex unions, though not joined by Vermont’s law.

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