| Godfrey v Spano |
| 2008 NY Slip Op 10584 [57 AD3d 941] |
| December 30, 2008 |
| Appellate Division, Second Department |
| Margaret Godfrey et al., Appellants, v Andrew J. Spano etal., Respondents. New York State Comptroller,Intervenor-Respondent. |
—[*1] Charlene M. Indelicato, County Attorney, White Plains, N.Y. (Stacey Dolgin-Kmetz andMary Lynn Nicolas-Brewster of counsel), for respondent Andrew J. Spano. Susan L. Sommer, New York, N.Y., and Kramer Levin Naftalis & Frankel LLP, New York,N.Y. (Jeffrey S. Trachtman, Norman C. Simon, and Darren Cohen of counsel), for respondentsMichael Sabatino and Robert Voorheis (one brief field). Andrew M. Cuomo, Attorney General, New York, N.Y. (Barbara D. Underwood, BenjaminN. Gutman, and Sasha Samberg-Champion of counsel), for intervenor-respondent New YorkState Comptroller and amicus curiae New York State Department of Civil Service, and amicuscuriae pro se.
In an action, inter alia, for a judgment declaring that Westchester County Executive OrderNo. 3 of 2006 is illegal, unconstitutional, and void, the plaintiffs appeal, as limited by their brief,from so much of an order and judgment (one paper) of the Supreme Court, Westchester County(Lefkowitz, J.), dated April 16, 2007, as granted the cross motion of the defendant Andrew J.Spano, the Westchester County Executive, pursuant to CPLR 3211 (a) (7) and declared thatWestchester County Executive Order No. 3 of 2006 is "a valid exercise of the County Executive'spower, not an illegal act, and does not violate the State Constitution or the Municipal Home RuleLaw."
Ordered that the order and judgment is affirmed insofar as appealed from, with [*2]one bill of costs to the respondents and the intervenor-respondentappearing separately and filing separate briefs.
On June 6, 2006 the defendant Andrew J. Spano, the Westchester County Executive(hereinafter the County Executive), issued Westchester County Executive Order No. 3 of 2006(hereinafter the Executive Order), which directed all departments, boards, agencies, andcommissions of Westchester County under the County Executive's jurisdiction "to recognizesame sex marriages lawfully entered into outside the State of New York in the same manner asthey currently recognize opposite sex marriages for the purposes of extending and administeringall rights and benefits belonging to these couples, to the maximum extent allowed by law." Theplaintiffs assert that the order is an invalid exercise of the County Executive's authority, allegingin their first cause of action, pursuant to General Municipal Law § 51, that the orderillegally legislates in the areas of marriage and domestic relations in a manner inconsistent withthe New York State Constitution and State law, and alleging in their second cause of action thatthe order violates article IX, § 2 (c) of the New York State Constitution and MunicipalHome Rule Law § 10 (1) (i). The Supreme Court, inter alia, granted the CountyExecutive's cross motion pursuant to CPLR 3211 (a) (7) and declared that the Executive Order isa valid exercise of the County Executive's power, is not an illegal act, and does not violate theState Constitution or the Municipal Home Rule Law. We affirm the order and judgment insofaras appealed from.
In support of their first cause of action, the plaintiffs rely upon Hernandez v Robles(7 NY3d 338 [2006]), arguing that a same-sex marriage cannot be recognized in New York, evenwhen validly entered into elsewhere, because it does not constitute a marriage within thecontemplation of New York law. The defendants argue that such recognition is entirelyconsistent with New York's marriage recognition rule under Matter of May (305 NY 486,490 [1953]) (see Martinez v County of Monroe, 50 AD3d 189 [2008]).
Although "an action pursuant to General Municipal Law § 51 may take the form ofaction for a declaratory judgment" (Matter of Korn v Gulotta, 72 NY2d 363, 371 [1988]),where, as here, there is no allegation of waste of or injury to public funds, such relief is availableonly if the challenged act is illegal and " 'is such as to imperil the public interests or calculated towork public injury or produce some public mischief' " (id. at 372, quoting Altschul vLudwig, 216 NY 459, 467 [1916]; see Western N.Y. Water Co. v City of Buffalo,242 NY 202, 206-207 [1926]). The Executive Order at issue here requires that same-sexmarriages be recognized to "the maximum extent allowed by law." By its terms, therefore, theExecutive Order can never require recognition of such a marriage where it would be outside thelaw to do so. Since it is within the authority of the County Executive "[t]o see that the laws of thestate, pertaining to the affairs and government of the county . . . are executed andenforced within the county" (Laws of Westchester County § 110.11 [6]), the ExecutiveOrder is not illegal. The amended complaint, therefore, does not state a cause of action pursuantto General Municipal Law § 51.
In order to proceed on their second cause of action, the plaintiffs are required to demonstratesome personal interest in the dispute beyond that of any taxpayer (see Matter of TransactiveCorp. v New York State Dept. of Social Servs., 92 NY2d 579, 589 [1998]; Matter ofClark v Town Bd. of Town of Clarkstown, 28 AD3d 553 [2006]). They have not done so.
Accordingly, the Supreme Court properly granted the cross motion and declared that theExecutive Order is a valid exercise of the County Executive's power, is not an illegal act, and[*3]does not violate the State Constitution or the MunicipalHome Rule Law (see Lanza v Wagner, 11 NY2d 317, 334 [1962], lv dismissed371 US 74 [1962], cert denied 371 US 901 [1962]; 563 Grand Med., P.C. v NewYork State Ins. Dept., 24 AD3d 413, 414 [2005]). Spolzino, J.P., Lifson, Dickerson andChambers, JJ., concur. [See 15 Misc 3d 809.]