By a 3-2 majority, New York’s Appellate Division, Second Department has stated that same-sex partners cannot pursue an action for wrongful death in New York. Langan v. St. Vincent’s Hospital, 2003-04702 was originally commenced by the survivor of a same-sex couple whose partner died after undergoing surgery for injuries suffered after having been struck by an automobile. The couple had earlier entered into a civil union in Vermont where such agreements are legal and binding.

Initially, an action brought in Nassau County Supreme Court was allowed to proceed on the grounds that New York Law did not preclude recognition of the Vermont civil union for the wrongful death statute.

Writing for the majority, Justice Robert Lifson found that this right of action is available only to married couples and that any ruling affording the same right to a gay couple would constitute a judicial sanction of same-sex marriage. Whether or not such a right could exist was seen as an issue for the state legislature to decide, the court opined stating that ” The circumstances of the present case highlight the reality that there is a substantial segment of the population of this State that is desirous of achieving state recognition and regulation of their relationships on an equal footing with married couples” and that “There is also a substantial segment of the State that wishes to preserve traditional concepts of marriage as a unique institution confined solely to one man and one woman.”

In a lengthy dissent, Justice Steven W. Fisher rejected the idea that the case concerned same-sex marriage as much as it did the state’s wrongful death statue and the right to equal protection under the law. Justice Fisher stated that the only real effect of the decision was to “provide a windfall for a potential tortfeasor.” The entire text of this decision is to appear in the issue of the New York Law Journal which will be published on Wednesday October 19, 2005.