SUPREME COURT OF NEW YORK

ALBANY COUNTY

Lewis

v.

New York State

Department of Civil Services

4078-07

2008 N.Y. Misc. Lexis 1623

239 N.Y.L.J. 52

March 3, 2008, Decided

Justice McNamara

In May 2007, the New York State Department of Civil Service Employee Benefits Division issued a revised policy memorandum in which it announced that it would recognize, as spouses, the parties to any same sex marriage performed in jurisdictions where such marriage is legal. The memorandum had the effect of extending all health benefit plans provided under New York State Health Insurance Program (NYSHIP) to such spouses of NYSHIP enrollees. Thereafter, plaintiffs brought this action for a declaratory judgment finding that the recognition of foreign same sex marriages as expressed in the policy memorandum is illegal, unconstitutional, ultra vires, void and constitutes an illegal expenditure of State funds.

Peri Rainbow and Tamela Sloan have moved to intervene, and if such leave is granted, to dismiss the amended verified complaint. Defendants New York State Department of Civil Service and Nancy G. Groenwegen have also moved to dismiss and plaintiffs have moved for summary judgment.

Civil Service Law §161 authorizes the President of the Civil Service Commission to establish a health insurance plan for state officers and employees. All persons in the service of the state who elect to participate in the health insurance plan are eligible to participate therein (Civil Service Law §163) and are entitled to have his or her spouse and dependent children included in the coverage (Civil Service Law §164). Plaintiffs contend in the amended verified complaint that the policy memorandum which recognizes as spouses the parties to certain same sex marriages violates the constitutional principal of separation of powers, violates State Finance Law §123-b, violates New York Constitution article VII, §8 by using public funds to aid Governor Spitzer’s political objectives and violates New York Constitution article IV, §8 and State Administrative Procedures Act §202 by promulgating a rule without first satisfying the procedural rulemaking requirements. Plaintiffs also argue that under the doctrine of judicial estoppel defendants should be prohibited from arguing that the term “spouse”, as used in Civil Service Law §164, includes partners of same-sex couples who were married outside New York.

Judicial estoppel generally is applied where a party to an action has secured a judgment in its favor by adopting a certain position and then seeks to take a contrary position in the same action or in another action arising from the judgment (Moore v. County of Clinton, 219 AD2d 131, 640 N.Y.S.2d 927 [1996], lv denied 89 NY2d 851, 675 N.E.2d 1226, 653 N.Y.S.2d 273 [1996]). In Funderburke v. New York State Department of Civil Service, 13 Misc.3d 284, 822 N.Y.S.2d 393 (1996) plaintiff sought spousal health and dental insurance coverage for the man he had recently married in Canada. The court granted summary judgment to the defendants, New York State Department of Civil Service and Uniondale Union Free School District, on the ground that plaintiff’s union was not a marriage as that term was defined by the Court of Appeals in Hernandez v. Robles, 7 NY3d 338, 855 N.E.2d 1, 821 N.Y.S.2d 770 (2006). Plaintiffs, here, contend that the position taken by the Department of Civil Service in this action is inconsistent with the position it took in Funderburke and that under the doctrine of judicial estoppel, the Department is prohibited from asserting a contrary position in this action. However, this action is neither the same action as Funderburke nor does it arise from the judgment in Funderburke. Consequently, the doctrine of judicial estoppel does not apply.

The other arguments offered by plaintiffs to invalidate the determination are without merit. The contention that defendants violated the constitutional principal of separation of powers is not based on a belief that defendants do not have the authority to interpret “spouse” as that word is used in Civil Service Law §164. Plaintiffs argument is that the interpretation must be, but is not, consistent with legislative pronouncements and may not, but does, go beyond stated legislative policy (see e.g. Matter of Campagna v. Shaffer, 73 NY2d 237, 536 N.E.2d 368, 538 N.Y.S.2d 933 [1989]).

In Martinez v. County of Monroe, 850 N.Y.S.2d 740, 2008 NY Slip Op 909, the Appellate Division, Fourth Department, concluded that a valid same-sex marriage performed in Canada was entitled to recognition in New York. That result was reached by employing the marriage recognition rule which provides that “if a marriage is valid in the place where it was entered, it is to be recognized as such in the courts of this State, unless contrary to the prohibitions of natural law or the express prohibitions of a statute” (id at 3-4 , citations omitted). Moreover, the court found that defendants’ decision to deny plaintiff’s application for spousal health care benefits, based on its refusal to recognize the Canadian marriage, violated Executive Law §296 (1) (a), which forbids an employer from discriminating against an employee “in compensation or in terms, conditions or privileges of employment” because of the employee’s sexual orientation. In the absence of a contrary holding in this Department, the ruling in Martinez is binding on this court (Mountain View Coach Lines v. Storms, 102 AD2d 663, 664, 476 N.Y.S.2d 918 [1984]; see In re Patrick BB, 284 AD2d 636, 725 N.Y.S.2d 731 [2002]).

The determination in Martinez that recognition of legally performed Canadian same-sex marriages is appropriate under the marriage recognition rule forecloses the arguments that the policy memorandum is not consistent with legislative pronouncements or goes beyond stated legislative policy.

The assertion that the policy memorandum violates State Finance Law §123-b is based on arguments that the marriage recognition rule and the principal of comity do not apply. Those arguments are also undermined by the holding in Martinez.

The ruling in Martinez also invalidates the claim that the policy memorandum violates New York Constitution article VII, §8 by using public funds to aid Governor Spitzer’s political objective of recognizing same-sex marriages. To the extent that the policy memorandum is consistent with a political objective of the governor, that objective, according to the court in Martinez, is consistent with the New York policy regarding recognition of foreign marriages.

The argument that the policy memorandum established a new “rule” without complying with the rule-making procedures in the State Administrative Procedure Act also fails. State Administrative Procedure Act §102 (2) (b) (iv) excludes from the definition of a rule “forms and instructions, interpretive statements and statements of general policy which in themselves have no legal effect but are merely explanatory.” The policy memorandum provides an interpretative statement of the term “spouse” as It relates to eligibility for health plan benefits. As such, it does not constitute an improper unified rule.

The motion by Peri Rainbow and Tamela Sloan to intervene is granted.

The motion for summary judgment by plaintiffs is denied and upon searching the record summary judgment is granted to defendants and defendant-intervenors.

The policy memorandum issued by the New York State Department of Civil Service Employee Benefits Division in which it recognized, as spouses, the parties to any same sex marriage, performed in jurisdictions where such marriage is legal, is both lawful and within its authority.

All papers including this Decision and Order are returned to defendant’s attorneys. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

This memorandum shall constitute both the Decision and Order of this Court.

SO ORDERED.