LI School Teacher Vindicated on Benefits Claim

Brooklyn appeals court vacates ruling denying marriage recognition

By: ARTHUR S. LEONARD| A state intermediate appeals court in Brooklyn has ruled that a trial court decision that refused to recognize same-sex marriages contracted in Canada should be vacated and stricken from the books, to avoid confusing the situation regarding marriage recognition in New York.

The March 25 ruling came in a pending appeal by Duke Funderburke, a retired Long Island school teacher, who sought benefits for his same-sex spouse.

Funderburke, who had been employed by Uniondale Union Free School District, and his husband were legally married in Ontario in 2004, and then applied for spousal health and dental insurance under the retired teachers' benefits program maintained by the district and administered by the State Civil Service Department.

The trial judge, ruling shortly after the New York Court of Appeals' 2006 decision in Hernandez v. Robles, which rejected a state constitutional claim for same-sex marriage, held that New York public policy as declared in that case precluded recognition of Funderburke's marriage.

Funderburke appealed, represented by Lambda Legal, the LGBT rights public interest law organization.

In the meanwhile, the Civil Service Department rethought its position, and decided that under New York marriage recognition law it should be according legal status to same-sex marriages contracted lawfully in other jurisdictions. While the appeal was pending, the Civil Service Department and the school district notified Funderburke that his husband could enroll in the programs, and also offered compensation for the cost of alternative coverage dating back to the original request.

The Civil Service Department and the district then moved to dismiss the case as moot. But, Funderburke, in response, moved to vacate the trial court's decision if the appeal were dismissed as requested.

Noting that the power of courts “arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case,” the Brooklyn appeals court found that ruling on the merits of Funderburke's appeal would be an inappropriate advisory opinion, since the state's change of policy had settled the question. Instead, the court would “dismiss the appeal as academic.”

Turning to Funderburke's motion, the court found that even with such dismissals, it has the discretion to order that the lower court ruling be vacated to avoid unintended “legal consequences or precedent” or “confusion of the legal issues.”

The court's vacate order is particularly significant because it cited the 4th Department's recent decision in Martinez v. County of Monroe, in Rochester, the first (and so far only) appellate ruling in New York to hold that the state would recognize a Canadian same-sex marriage. The appellate court in Brooklyn, representing the state's 2nd Department, offered no explanation in making this citation, but it would appear to be based on the conclusion that there is no reason to cloud the statewide precedent established by the 4th Department.

Since the February 1 ruling in Martinez, two trial judges have relied on that precedent to recognize same-sex marriages from Canada. Monroe County, however, has announced its plans to appeal that ruling to the state's highest court.

Susan L. Sommer, senior counsel at Lambda Legal, is the lead attorney on the case, as co-counsel with attorneys Jeffrey S. Trachtman and Norman C. Simon of Kramer Levin Naftalis & Frankel LLP.

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