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upreme Court, Westchester County, New York.
Margaret GODFREY, Rosemarie Jarosz and Joseph Rossini,
v.
Andrew J. SPANO, in his official capacity as the Westchester County
Executive, Defendant,
Michael Sabatino and Robert Voorheis, Defendants-Intervenors.
15 Misc.3d 809, 836 N.Y.S.2d 813, 2007 N.Y. Slip Op. 27105
March 12, 2007.
Background: Taxpayers brought action against county executive, challenging
executive order requiring county agencies to recognize same-sex marriages
where validly contracted out-of-state. County executive moved to dismiss.
Holdings: The Supreme Court, Westchester County, Joan B. Lefkowitz, J., held
that:
(1) the executive order was not illegal, and
(2) the executive order was an implementing directive, not a law, and,
therefore, it did not violate constitutional provision which empowered local
governments to adopt laws not inconsistent with state constitution and
general law.
Ordered accordingly.
**813 Brian W. Raum, Esq., Alliance Defense Fund, Scottsdale, AZ, Ruta &
Soulious, LLP, New York, Attorneys for Plaintiffs.
Hilliary J. Raimondi, Esq., Associate County Attorney, Hon. Charlene M.
Indelicato, White Plains, Attorney for Defendant.
Susan L. Sommer, Esq., Lambda Legal Defense & Education Fund, Kramer Levin
Nartalis & Frankel, LLP, New York, Attorneys for Defendants-Intervenors.
**814 JOAN B. LEFKOWITZ, J.
*810 The issue raised herein is whether the Westchester County Executive's
Executive Order requiring county agencies to recognize same-sex marriages
where validly contracted out-of-state, is lawful. I hold that it is.
BACKGROUND
On June 6, 2006, defendant, in his official capacity as County Executive,
issued Executive Order No. 3 which provides: "every department, board,
agency, and commission of the County of Westchester under my jurisdiction
(shall) recognize same sex marriages lawfully entered into outside the State
of New York in the same manner as they currently recognize opposite sex
marriages for the purposes of extending and administering all rights and
benefits belonging to these couples, to the maximum extent allowed by law".
The preceding whereas clauses in the Executive Order referred to, inter
alia, opinions of the State Attorney General and State Comptroller.
The State Attorney General issued an informal opinion, authored by the
Solicitor General, on March 3, 2004 (Opn. No. I 2004-1), which concluded
that the New York State Legislature did not intend to authorize same-sex
marriages but a distinct legal question existed with respect to recognition
of same-sex unions from other jurisdictions.
On October 8, 2004, the State Comptroller issued an opinion, authored by the
Counsel to the Retirement System, which concluded that the Retirement System
would recognize same-sex Canadian marriages under principles of comity.
On or about August 23, 2006, plaintiffs commenced the within action claiming
a violation of section 51 of the General Municipal Law (commonly referred to
as a "taxpayers action") and seek a preliminary injunction with respect to
Executive Order No. 3. Section 51 provides in pertinent part:
"All officers, agents, commissioners and other *811 persons acting, or who
have acted, for and on behalf of any county, town, village or municipal
corporation in this state, and each and every one of them, may be
prosecuted, and an action may be maintained against them to prevent any
illegal official act on the part of any such officers, agents, commissioners
or other persons, or to prevent waste or injury to, or to restore and make
good, any property, funds or estate of such county, town, village or
municipal corporation...."
Defendant moved to dismiss the complaint. Plaintiffs served an amended
complaint containing two causes of action, to wit: (1) a taxpayers action
and (2) alleged violation of New York State Constitution, Article 9, 2(c)
and Municipal Home Rule Laws 10(1)(i). The amended complaint seeks
declaratory and injunctive relief. Defendant moves to dismiss the amended
complaint.
Nonparties Sabatino and Voorheis move for leave to intervene and by separate
motion to dismiss the complaint. Subsequently, the proposed intervenors
moved to dismiss the amended complaint and submitted a proposed verified
answer to the amended complaint.
Defendant Spano does not oppose the motion for intervention and plaintiffs
do not object. Therefore, the motion for leave to intervene is granted. CPLR
1013. Defendants intervenors (hereafter sometimes referred to with defendant
Spano as "defendants") are a same-sex couple who reside in Westchester
County and who were validly married in Canada.
MOTIONS TO DISMISS
The Court deems the separate motions of the defendants to dismiss the
original **815 complaint as moot but has considered the affidavits and
exhibits to those motions on the motions addressed to the amended complaint.
On a motion to dismiss the pleading pursuant to CPLR 3211(a)(7) for failure
to state a cause of action, the complaint is given a liberal construction,
the facts alleged are deemed true, the pleader is given every favorable
inference and the only question is whether the plaintiffs in fact have a
cause of action under any cognizable legal theory. Leon v. Martinez, 84
N.Y.2d 83, 614 N.Y.S.2d 972, 638 N.E.2d 511 (1994); Adams v. Hickey, 35
A.D.3d 328, 828 N.Y.S.2d 105 (2d Dep't 2006); see AG Capital v. State St.
Bank, 5 N.Y.3d 582, 808 N.Y.S.2d 573, 842 N.E.2d 471 (2005); Siegel, New
York Practice (4th ed.), 265. Rather than *812 delay decision herein by
giving notice that the motions to dismiss be converted into ones for summary
judgment (CPLR 3211[c] ), the Court has considered the evidentiary material
submitted by the parties to determine if the plaintiffs have a cause of
action. International Oil Field Supply Serv. Corp. v. Fadeyi, 35 A.D.3d 372,
825 N.Y.S.2d 730 (2d Dep't 2006); Steiner v. Lazzaro & Gregory, P.C., 271
A.D.2d 596, 706 N.Y.S.2d 157 (2d Dep't 2000), Meyer v. Guinta, 262 A.D.2d
463, 692 N.Y.S.2d 159 (2d Dep't 1999); Siegel, Practice Commentaries to CPLR
3211, McKinney's Consol. Laws of New York, Book 7B (CPLR 3201 to 3211), pp.
43-46.
THE CAUSES OF ACTION
Defendant Spano and defendants-intervenors' move to dismiss the first cause
of action. The defendants argue that plaintiffs must prove illegality by
defendant Spano to sustain the taxpayers' claim and that they have failed to
do so because he has not legislated and no actual funds have yet been
disbursed. However, if plaintiffs can demonstrate that defendant Spano has
exceeded his authority or that the underlying substance of the Executive
Order is illegal, it appears prima facie that the claim pursuant to section
51 of the General Municipal Law is viable, if only fleetingly. Mesivta of
Forest Hills Inst. v. City of New York, 58 N.Y.2d 1014, 462 N.Y.S.2d 433,
448 N.E.2d 1344 (1983); Slattery v. City of New York, 266 A.D.2d 24, 697
N.Y.S.2d 603 (1st Dep't 1999); cf. Ann. 74 A.L.R.5th 439 (1999), Validity of
Governmental Domestic Partner Enactment, 2.
[1] Link to KeyCite Notes Furthermore, the second cause of action in the
amended complaint which incorporates the allegations of the taxpayers'
action, alleges a violation of a state constitutional provision which is
sufficient to confer standing on plaintiffs who are taxpayers in Westchester
County
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