1. APPENDIX
West v. Mercy Hospital of New York
Docket No. 06-0001-cv
TABLE OF CONTENTS
Page
Motion for Partial Dismissal 2
Affidavit of Ralph Kessler 5
Memorandum in Opposition to Motion for Partial Dismissal 8
Affidavit of Jerry West 38
District Court’s Memorandum and Order 52
Notice of Appeal 66
Appendix Page 1

2. IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF NEW YORK
JERRY WEST, in his Capacity as Executor )
of the Estate of BRYAN KESSLER, Deceased, )
and JERRY WEST, Individually, )
)
Plaintiffs, )
)
)
v. ) Index No: 11618/2005
)
)
MERCY HOSPITAL OF NEW YORK, )
)
Defendant. )
)
MOTION FOR PARTIAL DISMISSAL
Defendant Mercy Hospital of New York (“Mercy”) hereby moves to dismiss
Count II of the complaint filed by plaintiff Jerry West, Individually (“Plaintiff”),
whereby he claims he is entitled to recover for wrongful death pursuant to New
York’s Estate, Probate, and Trust Law. Mercy asserts that Plaintiff has failed to state
a claim upon which relief may be granted, see Fed. R. Civ. P. 12(b)(6), because he is
does not qualify as a “distributee” under the New York wrongful death statute.
In support of this Motion for Partial Dismissal, Mercy submits the Affidavit
of Mr. Ralph Kessler, the surviving father of the decedent. Mercy contends that Mr.
Kessler, not Plaintiff, is the proper “distributee” entitled to seek relief under the
statute. Decedent was never married in the traditional sense of the word, and he had
no children. His closest blood relatives were his parents and siblings.
Appendix Page 2

3. Mercy respectfully asserts that the New York courts have never recognized a
same-sex couple as a legitimate marriage for purposes of the probate statutes.
Admittedly, Plaintiff and the decedent purported to enter into a “marriage” in
Massachusetts in 2004. However, Plaintiff’s complaint does not identify any legal
authority in New York to support his claim that the Massachusetts marriage is
entitled to recognition in New York. In the absence of such authority, Plaintiff
cannot recover for wrongful death as a matter of law. He was not a blood relative of
the decedent; nor was he the lawful “spouse” of the decedent for purposes of
recovery under the New York wrongful death statute. Moreover, because West and
Kessler could not have entered into a lawful marriage in New York, their
Massachusetts marriage is not entitled to recognition by New York law.
Finally, federal law preempts plaintiff’s wrongful death claim. The Defense of
Marriage Act, 28 U.S.C. § 1738C, specifically provides, “No State . . . shall . . . give
effect to any public act . . . respecting a relationship between persons of the same sex
that is treated as a marriage under the laws of such other State, . . . or a right or claim
arising from such relationship.” New York is not required to give full faith and credit
to the Massachusetts marriage.
Mercy therefore respectfully prays for an order dismissing Count II of
Plaintiff’s complaint for wrongful death, together with attorney’s fees and costs.
Appendix Page 3

4. Respectfully submitted,
____________________________
Ronald Dewgoode
N.Y. Bar No. 13187
Dewgoode, Goforth & Prosper
735 E. 3rd Ave.
New York, N.Y. 00103
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Motion for Partial
Dismissal was served on the following person by depositing a copy in the United
States Mail, first class postage prepaid, on the 16th day of January 2005, addressed to:
David Barrett, Esq.
Grynn & Barrett, PC
419 Park Avenue South, 2nd Floor
New York, NY 10016
_________________________
Ronald Dewgoode
Dewgoode, Goforth & Prosper
735 E. 3rd Ave.
New York, N.Y. 00103
Appendix Page 4

5. IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF NEW YORK
JERRY WEST, in his Capacity as Executor )
of the Estate of BRYAN KESSLER, Deceased, )
and JERRY WEST, Individually, )
)
Plaintiffs, )
)
) Index No: 11618/2005
v. ) AFFIDAVIT
)
)
MERCY HOSPITAL OF NEW YORK, )
)
Defendant. )
)
State of New York )
) SS:
County of New York )
AFFIDAVIT OF RALPH KESSLER
RALPH KESSLER, having been duly sworn, avers as follows:
1. I am the father of Bryan Kessler, the decedent on whose behalf Jerry
West has filed this personal injury action. In addition, Jerry West seeks recovery for
wrongful death under the applicable New York statute.
2. I submit this affidavit in support of the Motion for Partial Dismissal
filed by defendant Mercy Hospital of New York.
3. I loved my son deeply, and so did his mother, Ruth Kessler. We were
an extremely close-knit family throughout Bryan’s life.
Appendix Page 5

6. 4. Bryan met Jerry West sometime in the late summer or early fall of
1993. Bryan’s mother and I did not know anything about the relationship until
several months later, when Bryan announced that they were moving in together.
4. Bryan’s mother and his siblings were shocked and hurt by the news of
their relationship. As time went on, however, we understood that their affection for
each other was genuine, and it became clear that they wanted to commit their lives to
one another. We accepted Jerry as a member of the family as best we could out of
love for our son and our desire for his happiness.
5. In early 2004, Bryan told us about his and Jerry’s plans to go to
Massachusetts to be married. He explained that it was important to Jerry to
formalize the relationship in this fashion, and that Massachusetts was the only state in
the country that would permit them to have a legal marriage ceremony in every sense
of that word.
6. Because we cared so deeply for our son, we agreed to attend the
wedding ceremony in Provincetown, Massachusetts.
7. After the wedding, Bryan and Jerry returned to their home in New
Jersey. They never intended to remain in Massachusetts, and in fact, they left
Massachusetts within 24 hours of the ceremony. They have not returned to
Massachusetts since.
8. I considered Jerry and Bryan to be lifetime partners, but they were not
“spouses.” Spouses must be of the opposite gender. Jerry and Bryan are both
males, so they cannot be “spouses,” at least not in my opinion.
Appendix Page 6

7. FURTHER AFFIANT SAYETH NAUGHT.
___________________________
RALPH KESSLER
Sworn to before me by Ralph Kessler on this 16th day of ___January___, 2005.
_____________________________________
Notary Public
My Commission Expires: May 2, 2005
Appendix Page 7

8. David Barrett, Esq.
Grynn & Barrett, PC
419 Park Avenue South, 2 Floor
nd
New York, NY 10016
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF NEW YORK
JERRY WEST, in his Capacity as Executor )
of the Estate of BRYAN KESSLER, Deceased, )
and JERRY WEST, Individually, )
)
Plaintiffs, ) Index No: 11618/2005
) Judge Donald Gumper
v. )
)
MERCY HOSPITAL OF NEW YORK, )
)
Defendant. )
)
MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANT’S MOTION FOR PARTIAL DISMISSAL
AND IN SUPPORT OF PLAINTIFF’S CROSS-MOTION
FOR PARTIAL SUMMARY JUDGMENT
Preliminary Statement
Plaintiff Jerry West, as Executor of the Estate of Bryan Kessler (deceased) and in
his individual capacity (“Jerry”), by his attorney David Barrett, respectfully submits this
memorandum of law in opposition to the motion of defendant Mercy Hospital of New
York (“defendant” or “Mercy Hospital”) for partial dismissal for failure to state a claim
pursuant to Fed. R. Civ. P. 12(b)(6). Because defendant’s motion relies on evidentiary
materials, plaintiff requests that it be deemed one for partial summary judgment. See
Fed. R. Civ. P. 12(b). In addition, plaintiff hereby files this cross-motion for partial
summary judgment pursuant to Fed. R. Civ. P. 56(a), and respectfully submits this
Appendix Page 8

9. memorandum of law in support of that motion as well.
Mercy Hospital has been accused of medical malpractice that caused the death of
Bryan Kessler (“Bryan”). Rather than file an answer or respond in any way to the
substance of the serious medical malpractice charges against it, defendant asks this Court
to deprive Jerry of the ability to continue to receive the enormous financial support that
he had been receiving from Bryan throughout their more than 15 years together in a
stable, committed, and loving life partnership, even if defendant’s malpractice is proven.
Defendant’s motion should be denied for three reasons, any one of which would
be sufficient standing alone. First, New York’s wrongful death statute allows recovery
by “spouses,” and Jerry and Bryan were spouses as a result of entering into a lawful
marriage in Massachusetts. Regardless of gender, parties to a Massachusetts marriage are
“spouses,” with all the same legal responsibilities, benefits, and protections as are granted
to spouses in a traditional marriage.
Second, even if New York were not to recognize automatically a Massachusetts
spouse as a spouse under New York law, New York should respect the reality of Jerry
and Bryan’s lengthy, committed relationship, which was one of treating each other and
being recognized by everyone else as each other’s spouses for more than eleven years.
Third, for the state to deny Jerry and Bryan the benefits of the wrongful death
statute because they were married in Massachusetts and not in New York would violate
equal protection as guaranteed by the New York State Constitution.
Defendant asks this Court to ignore that Jerry and Bryan legally became
spouses; to ignore that their family, friends, work colleagues, and virtually everyone
Appendix Page 9

10. else who knew them (including the staff at Mercy Hospital) recognized them as full-
fledged spouses; and to ignore their eleven-year committed life partnership until death
parted them. Defendant requests that this Court deny Jerry and Bryan’s civil rights and
give a windfall to a tortfeasor, in violation of New York’s public policy underlying the
wrongful death statute as well as New York’s longstanding public policy against
discrimination, specifically including sexual orientation discrimination. Defendant’s
motion should be denied, and plaintiff’s motion should be granted.
Factual Background
A. Jerry and Bryan Took Every Step Possible to Protect Each Other, Including
Becoming Spouses Pursuant to Massachusetts’ Marriage Law.
For over eleven years, Jerry and Bryan were mates and spouses in a loving,
stable, and committed life partnership. Affidavit of Jerry West, dated January 31,
2005 (“West Aff.”), ¶ 2. They met on September 14, 1993, when Bryan was 32
and Jerry was 27. Eight months later, they moved in together, and they lived
together as a couple in a committed life partnership for the rest of Bryan’s life.
They loved each other as deeply as any two people can love, and they did
everything that they could to formalize, legalize, and protect their relationship and
their commitment to each other. West Aff. ¶¶ 2-3.
1. Jerry And Bryan’s Marriage as Spouses.
By Spring 2004, the couple had been together for almost eleven years. A few
weeks before Massachusetts’ law took effect authorizing same-gender marriages, Bryan
asked Jerry whether he would marry him. Jerry enthusiastically agreed to do so. As a
lawyer, Bryan fully understood the legal implications of entering into a marriage in
Massachusetts, and once he explained them in detail to Jerry, both were eager finally to
Appendix Page 10

11. obtain legal recognition of their relationship as spouses, with all that entails. West Aff.
¶¶ 4-5.
On May 19, 2004, the couple had a formal wedding in Provincetown,
Massachusetts. West Aff. ¶¶ 8-12. At the wedding ceremony, which was
videotaped and witnessed by a local magistrate and approximately forty of the
couple’s family members and friends, each took identical vows to the other,
stating:
I [Bryan /Jerry], take you [Jerry/Bryan], to be my lawful
wedded spouse, to have and to hold from this day forward,
for better, for worse, for richer, for poorer, to love and to
cherish, so long as we both shall live.
West Aff. ¶ 11. After the couple exchanged vows, they exchanged wedding bands and
said, “With this ring, I marry you.” West Aff. ¶ 12.
It was always Jerry and Bryan’s understanding that, by marrying in
Massachusetts, each had taken on the same legal responsibilities, and likewise had the
same legal protections and benefits, as spouses in a traditional marriage. For them, it was
legal recognition of the loving and committed life partnership that they already had been
sharing for over a decade. West Aff. ¶ 12.
2. Other Steps Jerry and Bryan Took To Formalize, Legalize, And
Protect Their Relationship and Each Other.
As a lawyer, Bryan had long been concerned about the couple’s lack of
legal protections in the absence of being legal spouses. In 1998, Jerry and
Bryan executed health care proxies to ensure that each would be able to make
healthcare decisions for the other in case of any emergency. West Aff. ¶ 38. In
1999, each purchased life insurance for the first time in their lives, and each
Appendix Page 11

12. designated the other as “primary” and “direct” beneficiaries of the life
insurance policies. West Aff. ¶ 39. The couple’s homeowners’ insurance
policy, in listing them jointly, evidenced that they were joint owners of all their
property. West Aff. ¶ 40. Likewise, they are jointly named in their Personal
Liability Umbrella Policy, evidencing joint and intermingled financial
obligations. West Aff. ¶ 41. In December 1999, just before leaving on a trip
for Iceland, the couple made out wills naming each other sole Beneficiaries and
Executors of each other’s estates. West Aff. ¶ 42.
At different times in their relationship, Jerry and Bryan each took
greater or lesser responsibility for their overall expenses, depending on their
respective incomes, and they were financially interdependent. West Aff. ¶ 44.
B. Jerry and Bryan Treated Each Other as Spouses and were Recognized as Each
Other’s Spouse by Family, Friends, and Colleagues.
1. History of the Couple’s Committed Life Partnership and Marriage.
When they first met in 1993, Bryan was a young lawyer, a 1986 graduate of Case
Western Reserve Law School. After graduation, he lived in Eastchester, New York,
commuting daily to work at a small Manhattan law firm. Jerry was just getting started as
an insurance claims representative, living in Prospect Park, New Jersey. West Aff. ¶ 13.
The couple moved in together in July 1994, and continued to live together until
Bryan’s untimely death. Because Bryan was a lawyer with a Manhattan law firm, his
income was substantially greater than Jerry’s, and he paid almost all of the couple’s bills,
including their rent, for the first several years. West Aff. ¶¶ 15-16.
In September 1995, Bryan took a new job as a commercial litigation associate
with the Manhattan office of Pell, Mell & Bewilder, where he continued to work until the
Appendix Page 12

13. spring of 1998. During Bryan’s nearly three years working at Pell, Mell & Bewilder, he
introduced Jerry to many of his colleagues as his life partner, and the couple became
friends with several of the firm’s lawyers. West Aff. ¶¶ 17-18.
Gradually, Jerry and Bryan’s respective families became more accepting of their
relationship, and eventually came to embrace them as spouses and members of the other’s
family. West Aff. ¶ 19. Living together in a loving and committed life partnership, the
couple saw Jerry’s parents, who lived in Buffalo, New York, about once a year. West
Aff. ¶ 20. Until Bryan’s death, Bryan and Jerry often invited Bryan’s family over for
dinner, and they spent many major holidays together. Although Jerry was raised
Catholic, he always enjoyed spending the Jewish holidays with Bryan’s family, and was
glad that they welcomed him for these and many other occasions. West Aff. ¶ 21-22.
In April 1998, Jerry was offered a management position in Saddle Brook, New
Jersey, that he hoped might lead to becoming a full-fledged independent agent. Bryan
and Jerry both saw this as an important opportunity, so we moved to Saddle Brook.
West Aff. ¶ 25. Around the time of that move, Bryan left Pell, Mell & Bewilder and
began working as a sole practitioner. Over the next 6 1/2 years until his death, as
Bryan continued his litigation practice, he also spent an increasing amount of time
helping Jerry succeed in his insurance business. Bryan’s contributions were
enormously valuable, and working together, they became a family business. West Aff.
¶ 26.
After Jerry became a trainee agent in July 2000, Bryan was instrumental in
helping them obtain enough business as an insurance agency and build their family
Appendix Page 13

14. business. Moreover, Bryan was a quick study, and by December 2000, he became
licensed as a “sub-agent” to sell all lines of insurance coverage – automobile, fire, life,
and health. He was the agency’s “marketing guru,” helping the couple to obtain business
that Jerry never would have been able to obtain on his own. Bryan’s legal knowledge and
experience was also extremely valuable to the couple’s agency in many different
contexts. West Aff. ¶¶ 29-35.
Most important to Jerry and Bryan was their spousal partnership. Each was there
for the other, in the best of times, the worst, and all the ones in between. When Bryan’s
maternal uncle died suddenly and unexpectedly, Jerry grieved with him and was a crucial
source of support, not just to Bryan but to his entire family. West Aff. ¶¶ 45-46.
Because Jerry and Bryan for many years had been very close to each other as
well as to each other’s families, their marriage ceremony in May 2004 was the
culmination, formal expression, and legalization of the long-existing reality of their
relationship as spouses. West Aff. ¶ 12.
2. Bryan’s Leg Injury, Hospitalization, and Sudden Death.
Bryan was hit by a car and was taken to Mercy Hospital, on Manhattan
Island, on November 12, 2004. At that time, he asked the hospital to call only one
person – his spouse Jerry. Jerry in turn notified Bryan’s family. West Aff. ¶¶ 47-49.
When Jerry arrived at the hospital, Bryan was on his way into surgery. His brother
Elliot, who works in Manhattan not far from Mercy Hospital, had arrived a little
earlier. Elliot gave Jerry a handwritten note from Bryan. It read:
Appendix Page 14

15. Jerry:
I’m going under. I haven’t had a chance to see you.
I love you. I’ve made my life in your heart.
Bryan
West Aff. ¶¶ 49-50.
When Jerry told the staff at the hospital that he was Bryan’s life partner, they let
him go up to the operating room to meet the surgeon and the anesthesiologist. Like any
spouse, Jerry helped with making health care decisions, like what kind of anesthesia Jerry
should get. Indeed, throughout Bryan’s remaining time alive, Mercy Hospital treated
Jerry as the spouse that he is. West Aff. ¶¶ 51-52.
When Bryan came out of surgery, still groggy from the anesthesia, his first words
upon seeing Jerry were: “Hello, sweetheart.” West Aff. ¶ 53. Jerry stayed with Bryan
in the hospital until approximately 2 a.m. that night. West Aff. ¶ 53-54.
On November 13 and November 14, Jerry again spent the day by Bryan’s side.
West Aff. ¶¶ 55-62. On November 14, Bryan underwent a second surgery. After the
surgery, around midnight, when Bryan was wheeled into his hospital bedroom, Jerry was
waiting for him. Jerry did everything he could to make Bryan comfortable, including
helping him with his glasses, brushing his teeth, and washing his face. Jerry then told
Bryan that he would see him the next day and kissed him goodnight. Bryan said,
“Goodnight, sweetheart.” West Aff. ¶¶ 58-62.
On November 15, at 7:15 a.m., Jerry was awakened by his ringing telephone. The
call was from Dr. Steven Touliopoulos of Mercy Hospital. To Jerry’s complete shock,
disbelief, and horror, Dr. Touliopoulos informed him that Bryan had “expired” that
Appendix Page 15

16. morning. Jerry’s world was suddenly and completely shattered by this horrifying news.
Overcome with grief, he sat on the living room stairs and cried, just as Bryan had done
when he heard his uncle had died. West Aff. ¶ 63.
Jerry was the first and only one that Mercy Hospital called with this news. Even
in Bryan’s death, until this motion that they have now filed against him, Mercy Hospital
treated Jerry as Bryan’s spouse. West Aff. ¶¶ 63-64.
Jerry has never been closer to anyone than he was to Bryan. The couple had
plans, goals, and dreams that Jerry will never be able to fulfill. Jerry misses everything
about Bryan, every moment of his life. He misses Bryan saying every morning “two
more minutes,” after the alarm rings, and he misses seeing Bryan still asleep in bed 30
minutes later. He misses Bryan’s love, affection, and caring, and he misses giving all
those things back to Bryan. Every night, Jerry still waits for Bryan to walk through the
door, the way he would every night, hug Jerry, and say to their dogs, “Hellozens to the
Snarkies!” West Aff. ¶¶ 70-71.
Jerry buried Bryan with Jerry’s tears on Bryan’s face, and the ring that Jerry gave
him at their wedding placed on Bryan’s heart. As Bryan wrote in his final note to Jerry,
he and Jerry lived in each other’s hearts, and Bryan will continue to live in Jerry’s heart,
forever. West Aff. ¶ 72.
PROCEDURAL BACKGROUND
Defendant has moved for partial dismissal of plaintiff’s claim for wrongful death,
which seeks to recover for pecuniary injury to Jerry as Bryan’s spouse.1 Because
1
Defendant effectively concedes that regardless of the outcome of this motion,
this case will continue, because Bryan’s mother and father, Ruth and Ralph Kessler, are
Appendix Page 16

17. defendant has submitted documentary evidence as well as an affirmation regarding Jerry
and Bryan’s relationship, and plaintiff is now responding in kind with documents and
affidavits, defendant’s motion for partial dismiss should be deemed a motion for partial
summary judgment. Fed. R. Civ. P. 12(b). In addition, plaintiff hereby cross-moves for
partial summary judgment. Fed. R. Civ. P 56(a). Based on the undisputed facts, this
Court should issue a judgment recognizing Jerry as Bryan’s surviving spouse, who is
entitled to recovery and distribution under New York’s wrongful death law.
ARGUMENT AND AUTHORITIES
I. Defendant’s Motion to Dismiss Should be Treated as a Motion for Partial
Summary Judgment and Denied, and Plaintiff Should be Granted Partial Summary
Judgment.
If a party’s motion to dismiss makes reference to evidentiary materials, as does
defendant’s motion here, the court should treat the motion as one for summary judgment.
Fed. R. Civ. P. 12(b). The court need not provide the parties with additional notice that a
motion to dismiss will be treated as one for summary judgment when the parties chart a
course for summary judgment through the submission of documentary evidence and
affidavits, or when the question presented is a purely legal one.
Both grounds are present here: defendant has submitted documentary evidence
and an affirmation concerning the relationship between Jerry West and Bryan Kessler,
and plaintiff is responding in kind. Moreover, defendant has not refuted, nor can it, the
fact of Jerry and Bryan’s Massachusetts marriage, nor the fact of their more than 11-year
entitled to recover under the wrongful death statute.
Appendix Page 17

18. committed life partnership. This Court is therefore left with a pure question of law as to
whether either the Massachusetts marriage, or the nature of the couple’s committed life
partnership, or both considered together, are sufficient to deem Jerry a surviving spouse
entitled to distribution under New York’s wrongful death law.
A third exception to the notice requirement exists where one or both parties
request that the court treat the dismissal motion as one for summary judgment. Plaintiff
Jerry West hereby requests that this Court treat defendant’s motion as one for summary
judgment, based on the evidentiary material submitted. On a motion for summary
judgment, the court must accept as true the opposing party’s evidence and any evidence
of the movant that favors the opposing party. Here, in ruling on defendant’s motion, all
pleadings and available evidence must be construed in the light most favorable to Jerry,
as nonmoving party.
If this Court does not convert the pending motion into one for summary judgment,
the standards for considering a motion to dismiss are even more deferential to plaintiff:
the pleadings must be construed in the light most favorable to the plaintiff, whose
allegations contradicting the defendant’s documentary evidence must be accepted as true.
In any event, the undisputed evidence establishes that Jerry and Bryan entered
into a marriage, making them legal spouses pursuant to Massachusetts law; that they
lived their lives for 11 years as spouses; and that they were recognized by family, friends,
and work colleagues as spouses. Jerry is therefore entitled to partial summary judgment,
permitting him to proceed, as Bryan’s spouse, with his wrongful death action against
Mercy Hospital.
Appendix Page 18

19. II. The Massachusetts Marriage Makes Jerry a Surviving “Spouse” Entitled to
Recover Under New York’s Wrongful Death Law.
Defendant has confused the issues on this motion by raising a slew of red herrings
concerning the legality of same-gender marriage in New York State and whether New
York could refuse to recognize same-gender marriages performed in other states under
the Federal Defense of Marriage Act. None of this whatsoever is relevant.
Rather, what is relevant is that Jerry is a surviving “spouse,” entitled to
recovery and distribution of damages pursuant to New York’s wrongful death law.
New York has consistently recognized “spousal” status lawfully created in a sister
state or foreign nation, regardless of whether those spouses became so in the way one
would in New York, and even if the spouses could not have been married in New
York. The word “marriage” is nowhere to be found in the wrongful death statute.
Defendant’s analysis, which focuses on whether Jerry and Bryan could have married
in New York, therefore misses the mark entirely. Rather, Jerry and Bryan’s status as
spouses, by virtue of their Massachusetts marriage, should be recognized under New
York law, and Jerry’s wrongful death action should be permitted to proceed.
A. New York Recognizes Spousal Unions if Legal in the State
Established, Whether or Not Permissible if Contracted in New York.
New York courts generally recognize spousal unions that were validly
created in sister states and foreign nations. So-called “common-law marriages,”
pursuant to New York statute, are not recognized as marriages at all in New York,
and cannot be established in New York. See N.Y. Dom. Rel. Law § 11. “It has
long been settled law that . . . a common-law marriage contracted in a sister State
will be recognized as valid here if it is valid where contracted.” E.g., Mott v.
Appendix Page 19

20. Duncan Petroleum Trans, 414 N.E.2d 657, 658-59 (N.Y. 1980) (citing cases)
(extending Workers’ Compensation spousal death benefit to survivor of “common-
law marriage”).
Moreover, New York has even extended spousal recognition to relationships that
neither fulfilled the statutory prerequisites for creation in New York nor involved travel
to a state that recognized common-law marriages, if the parties did nothing more than
have a ceremonial wedding without a marriage license. See In re Gruntfest’s Will, 7
A.D.2d 1005 (N.Y. Sup. Ct. App. Div. 1959) (ceremonial marriage, even without
marriage license, created right to take an intestate share against provisions of will of
decedent).
New York thus has a long history of extending all the legal benefits, protections,
and rights of marriage to relationships that are not “marriages” at all in the traditional
sense or under New York statute. With the parties to “common-law marriages” having
failed to take any of the formal, legal steps toward marriage, these relationships have
much less in common with traditional, formal marriage than do Massachusetts same-
gender marriages, which require the parties to follow a set of procedures identical to
those required for a traditional marriage, working with precisely the same government
agencies, and resulting in a relationship that has precisely the same legal responsibilities,
benefits, and protections as traditional marriage. Indeed, other than the gender of the
parties, the only real difference between same-gender marriages and traditional marriages
is the label used to identify each.
New York has also extended “spousal” or “marriage” recognition to
marriages if valid where created, even though the parties could not have married in
Appendix Page 20

21. New York. See, e.g., In re May’s Estate, 305 N.Y. 486, 114 N.E.2d 4 (1953)
(recognizing marriage between uncle and niece, prohibited by New York statutory
law but validly created in Rhode Island); cf. Bronislawa K. v. Tadeusz K., 90 Misc.
2d 183, 393 N.Y.S.2d 534 (N.Y. Fam. Ct. 1977) (holding that previous undissolved
religious marriage in Poland was not valid under Polish law, so that present marriage
in New York was valid and not bigamous). In short, with certain narrow exceptions
involving marriages that are “abhorrent” and “repugnant” to New York public
policy, New York has extended comity to the laws of other jurisdictions and has
recognize spousal relationships validly created in those jurisdictions, regardless of
whether they could have been created in New York.
B. Based on the Plain and Unequivocal Terms of the Marriage Law,
Jerry and Bryan were “Spouses.”
It is clear that New York recognizes spousal relationships validly created in
other jurisdictions, and Jerry and Bryan took the significant step of entering into a
marriage in Massachusetts. Thus, Jerry and Bryan were validly “spouses,” and
pursuant to the law of a sister state, Jerry is Bryan’s surviving “spouse” who is
entitled to recovery and distribution of any damages obtained pursuant to a wrongful
death action.
This Court should give full effect to the plain and unambiguous legal
“spousal” status that Jerry and Bryan entered into, along with its practical and legal
significance. See West Aff. ¶ 5. Defendant’s heavy reliance on New York common
law is misplaced. New York cases decided before the Massachusetts Supreme
Judicial Court declared in 2003 that same-gender marriages would be recognized in
Appendix Page 21

22. no way suggest that either New York law or public policy would forbid recognition of
same-gender marriages. Their analyses and holdings, therefore, including their dicta
as to whether same-sex couples could legally marry in New York are entirely
irrelevant to the legal issues presently before this Court.
Furthermore, in Raum, 675 N.Y.S.2d at 344, the majority and dissenting
opinions expressed conflicting views as to whether a provision disqualifying certain
surviving spouses from recovering under the wrongful death and intestacy laws
includes an implicit definition of “spouse.” Under either view, however, given the
undisputed facts, Jerry meets the definition of a surviving spouse under the wrongful
death statute. The majority construed N.Y. Est. Powers & Trusts Law § 5-1.2 as an
implicit definition of “surviving spouse” to include “[a] husband or wife.” See Raum,
675 N.Y.S.2d at 344. Assuming arguendo that the Raum majority was correct, Jerry
qualifies as a “husband” and therefore as a “surviving spouse,” entitled to recovery
under New York’s wrongful death law based on the Massachusetts marriage law.
The Raum dissent had the stronger argument, however, pointing out that N.Y.
Est. Powers & Trusts Law § 5-1.2 does not purport to be definitional. 675 N.Y.S.2d
at 345 (Rosenberger, J., dissenting). The dissent argued that the section should not be
stretched beyond its intended purpose of disqualifying spouses who have abandoned,
divorced, or separated from decedents to limit the meaning of “spouse” to include
only a “husband or wife.” Id. Regardless, Jerry is both a surviving “husband” and a
surviving “spouse,” and therefore is entitled to wrongful death recovery in New York
under either reading of the provision.
Jerry and Bryan entered into the most protective legal relationship possible for
Appendix Page 22

23. same-sex couples in this country, a Massachusetts marriage, precisely to create and
secure their legal status as spouses. Defendant does not contend that Jerry and
Bryan’s legal process of becoming spouses under Massachusetts law was defective,
void, or voidable in any way under the Massachusetts law. Significantly, Jerry and
Bryan went to these great lengths to protect their relationship and each other, precisely
so that each would be legally recognized as the “spouse” of the other under such
unforeseeable and tragic circumstances as now face this Court.
C. Comity Principles Require New York to Recognize that Jerry and Bryan
Were Spouses.
Jerry and Bryan satisfied all the legal requirements to become spouses under
Massachusetts law. Throughout this nation’s history, New York, like every other
state, almost automatically has accorded legal recognition to spousal bonds created in
sister jurisdictions and foreign nations. There is no legal or rational basis for a
different outcome in this case. Indeed, there is absolutely no authority in New York
specifically preventing recognition of Jerry and Bryan’s spousal relationship lawfully
entered into in a sister state.
Moreover, plaintiff is not aware of a single New York case in which New
York has denied legal recognition to a spousal union that two fully informed and
consenting adults, unrelated by blood, legally entered into in the place where the
union was celebrated. Instead, defendant argues that this Court must adopt an
unreasonably strict standard, unsupported by case or statutory law, for recognition of
Jerry and Bryan’s validly created bond as spouses. Specifically, defendant contends
Appendix Page 23

24. that Jerry could not be a surviving “spouse” entitled to state a claim for his pecuniary
loss due to Bryan’s wrongful death, because Jerry and Bryan could not have been
“married” in New York. See Defendant’s Motion for Partial Dismissal at 2 (arguing
that Jerry and Bryan could not have married in New York, and assuming, without
discussion, that their purported inability to do so in New York establishes that their
undisputed legal marriage in Massachusetts should not be recognized in New York).
Defendant presents an entirely erroneous standard for New York’s recognition of
spousal relationships created in sister jurisdictions.
1. New York Extends Comity to the Legal Acts of Other States and
Nations.
The standard is not, as defendant suggests, whether the relationship could have
been created in New York. Quite the contrary, the general rule under comity is that New
York will confer recognition upon spousal relationships which never could have been
legally created in New York, even where New York law expressly forbids their creation
in New York, as long as the spousal bond was legally created in the place where the
relationship was celebrated. See, e.g., In re May’s Estate, 114 N.E.2d 4, 6 (N.Y. 1953).
7
Defendant’s argument on the question of whether same-gender marriages can be
performed in New York is therefore irrelevant to the pending motion.
Only two exceptions exist to the general principle extending recognition to
spousal unions that were valid where created: (1) if New York law specifically
prohibits recognition of such spousal relationships when created outside New York;
and (2) if recognition of the spousal bond would be offensive to the public sense of
morality to an abhorrent degree. See, e.g., May’s Estate, 114 N.E.2d at 7. Neither
Appendix Page 24

25. has any application to this case. Notably, New York law does not expressly forbid the
7
creation of a spousal relationship between two persons of the same sex, but even if it
did, under well-settled principles of comity, that prohibition would not preclude
recognition of Jerry and Bryan’s spousal bond.
In May’s Estate, the New York Court of Appeals noted that while other states
have enacted laws to preclude recognition of certain kinds of marriages, even if valid
where created, New York has not done so. Thus, the first exception still has no
application in New York. With respect to the second exception, the New York Court
of Appeals has recognized only two classes of spousal unions that have been deemed
so “abhorrent” to New York public policy that New York law refuses to recognize
them even if valid where celebrated: (1) cases involving polygamy, or (2) incest in a
very close degree of consanguinity. May’s Estate, 114 N.E.2d at 6. Moreover, the
Court affirmed a judgment recognizing a marriage between an uncle and a niece,
despite a specific prohibition against such marriages in New York, despite the parties’
domicile in New York, and despite their undisputed effort to avoid the New York
prohibition by traveling to a sister state that permitted the marriage. Id. at 5-7.
Though incestuous, and though specifically forbidden from being created in New
York, the degree of consanguinity did not make the relationship so “abhorrent” to New
York public policy as to deny recognition.
Neither exception to the general rule extending recognition to spousal unions
applies here. New York has no specific statute forbidding a same-sex marriage or spousal
union, and as discussed below, far from being “abhorrent” to New York public policy,
Appendix Page 25

26. legal recognition of lesbian and gay families is entirely consistent with and even
mandated by New York public policy and law. For purposes of New York’s wrongful
death law, the question is whether New York should give comity to a sister jurisdiction’s
conferral of legal “spousal” status, not whether it should give comity to a sister
jurisdiction’s conferral of “marriage.”
Moreover, when states encounter a legal entity that they do not recognize under
their own law, they consistently treat that entity as the closest analogue under their own
law. Thus, as discussed above, New York does not permit so-called “common-law
marriages,” which are quite distinct from traditional marriages and involve none of the
formal, written, and ceremonial procedures required for traditional marriages.
Nevertheless, New York treats “common-law marriages” that have been validly created
under the law of a sister jurisdiction as their closest analogue, full-fledged “marriages.”
Likewise, New York has treated “proxy marriages,” which do not exist in New York, as
full-fledged marriages.
With spouses to a marriage assuming all the same responsibilities, and entitled
to all the same benefits and protections as spouses in a traditional marriage, treating a
Massachusetts marital union as a marriage in New York is entirely warranted. Yet
this Court need not go even so far. Regardless whether same-gender marriages are
regarded as the legal and functional equivalent of heterosexual marriage in all
respects, the issue under New York’s wrongful death law is not whether the parties
are married, but whether they are spouses. Because “spouse” is a legal concept that
is just as well defined under New York law as it is under the law of Massachusetts,
and with virtually identical meanings, this Court need not seek the New York
Appendix Page 26

27. analogue for a Massachusetts “spouse.” Principles of comity require that
Massachusetts spouses be treated as their New York equivalent – New York spouses,
entitled to (among other protections and benefits) recovery under the wrongful death
law.
2. Far from Preventing Recognition of Same-Sex Spouses Married in
Massachusetts, New York’s Public Policy Supports Recognition of
such Bonds.
Any public policy exception to the comity doctrine requires not merely that the
relationship could not have been initially created in New York, but that recognition of it
be “repugnant” and “abhorrent” to New York public policy. See, e.g., May’s Estate, 114
N.E.2d at 7. Recognition of the parties to a Massachusetts marriage as “spouses” under
New York’s wrongful death law is not “repugnant” to New York public policy. Indeed,
contrary to defendant’s argument, far from having any public policy that would prevent
recognition of same-sex relationships legally contracted in a sister state, New York public
policy supports recognition of these relationships. This should be especially clear within
the context of the wrongful death statute.
The purpose of New York’s wrongful death statute is to compensate those
whom the deceased normally would have assisted for the pecuniary benefits that they
would have received
had the deceased lived. See Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45, 51
(2d Cir. 1984). In addition, like the tort law generally, the wrongful death statute is
intended to punish tortfeasors and, specifically in the medical malpractice context, deter
conduct that falls below the accepted standards of medical care. See Kogan v. Dreifuss,
571 N.Y.S.2d 314, 316 (N.Y. Sup. Ct. App. Div. 1991); see also Raum v. Restaurant
Appendix Page 27

28. Assocs., Inc., 675 N.Y.S.2d 343, 347 (N.Y. Sup. Ct. App. Div. 1998) (Rosenberger, J.,
dissenting) (summarizing the goals of the wrongful-death statute). Excluding same-sex
spouses would not advance any of these purposes; indeed, it would undermine all of them
while giving a windfall to a tortfeasor.
Moreover, excluding same-sex spouses from wrongful death recovery would
violate New York’s well-established public policy against sexual orientation
discrimination. The exclusion would impose all these harms while failing to promote any
legitimate state or societal interest. New York State’s courts have been among the
nation’s leaders in an evolving public policy that increasingly recognizes the civil rights
of lesbian and gay people, supports legal recognition of their relationships, and opposes
sexual orientation discrimination. Indeed, in the past two decades, no less than four New
York Court of Appeals’ decisions affecting lesbian and gay rights support the proposition
that same-gender couples, especially those in long-term committed relationships, are
entitled to legal recognition and protections similar or equivalent to those extended to
married couples. To give full effect to the underlying purpose of state laws, to ensure
fairness and justice for lesbian and gay couples and families, and to avoid discrimination
against them, New York’s courts often construe statutes quite broadly. Indeed, nearly
thirty years ago, the New York Court of Appeals rejected the argument that recognition
of the civil rights of lesbian and gay individuals contradicts New York public policy. See
Gay Activists Alliance v. Lomenzo, 293 N.E.2d 255 (N.Y. 1973) (compelling acceptance
of Gay Activists Alliance’s certificate of incorporation, despite Secretary of State’s
assertion that organization’s purposes violated public policy).
Appendix Page 28

29. New York’s courts have not been the only branches of New York government to
affirm the equal rights of the State’s gay and lesbian citizens. Recently, New York
became the thirteenth state in the nation to pass statewide legislation barring
discrimination based on sexual orientation. Further, the law bars New York State, its
agencies, and its subdivisions from discriminating based on sexual orientation with
regard to a person’s “civil rights.”
Moreover, long before the passage of this legislation, New York State public
policy strongly supported the civil rights of lesbian and gay people. In November 1983,
then-Governor Mario Cuomo issued an Executive Order barring sexual orientation
discrimination by all state agencies and departments in employment and “in the provision
of any services or benefits.” See 9 N.Y.C.R.R. § 4.28. In that Executive Order, the
Governor “announce[d] freedom from [sexual orientation] discrimination as the policy,
not just of the Department of State but of this entire State government.” Id. In extending
the Cuomo Executive Orders barring employment discrimination by the state on the basis
of sexual orientation, Governor Pataki took the statement of policy one step further to
declare not only that state government opposes sexual orientation discrimination, but also
that “it has been, and remains, the policy of this state not to discriminate on the basis of
sexual orientation.” 9 N.YC.R.R. § 5.33 (Executive Order No. 33, issued April 9, 1996)
(emphasis added); see also 9
N.Y.C.R.R. §§ 5.10, 5.12 (Pataki Executive Orders, issued April 1995, barring sexual
orientation discrimination in screening of candidates to becomes judges, district
attorneys, and sheriffs). Further, the state has promulgated regulations to implement
Appendix Page 29

30. housing and adoption laws recognizing lesbian and gay relationships and to prohibit
adoption agencies from rejecting petitions solely based on sexual orientation. See 9
N.YC.R.R. §§ 2104.6, 2204.6, 2500.2, 2503.5, 2520.6 (succession rights of unmarried
life partners); 18 N.Y.C.R.R. § 421.16(h)(2) (regulating adoption). On June 23, 2000, the
New York Senate passed a hate crimes law that enhanced penalties for bias-motivated
crimes, including those motivated by anti-gay bias, 11 years after the New York
Assembly had first approved the bill. See N.Y. Penal Law § 485.05 (hate crimes
provision).
The benefits and protections extended to lesbian and gay people who lost life
partners in the terrorist attacks on September 11, 2001, is further proof of New York’s
public policy in favor of recognizing such relationships. In an Executive Order following
the September 11 tragedy, Governor Pataki concluded that the State Crime Victims
Board (“SCVB”) should extend the benefits of a “spouse” to domestic partners, a change
that the SCVB reportedly then made permanent. State of New York Executive Order
No. 113.30); www.prideagenda.org/pressreleases/pr-10-17-02.html.
Furthermore, on August 20, 2002, the New York Legislature extended the
Workers’ Compensation “spousal death benefit” to domestic partners (including
lesbian and gay domestic partners) of the victims of the September 11 attacks. N.Y.
Workers’ Comp. Law § 4 (2002) (domestic partner of employee killed in 9/11 terrorist
attacks “shall . . . be deemed to be the surviving spouse of such employee for the
purposes of any [Workers’ Compensation] death benefit . . . .”) (emphasis added).
Appendix Page 30

31. 3. The Federal Defense of Marriage Act, which Permits States to
Allow and Recognize Same-Sex Marriages and Spousal Bonds, in
No Way Forbids Such Recognition, and Otherwise Has No
Bearing on this Case.
The so-called federal “Defense of Marriage Act” (“DOMA”), upon which
defendant relies heavily, in no way undermines the argument for New York’s recognition
of Jerry and Bryan’s spousal union. While DOMA purports to permit individual states to
refuse to recognize same-gender marriages performed in any other state, see 28 U.S.C. §
1738C (2002), it by no means prohibits states from recognizing such marriages. See
1996 U.S. Code Congressional & Admin. News 2905, 2929.
Significantly, New York has declined to adopt any statutory language erecting
obstacles to either the creation or the recognition of same-gender marriages or spousal
bonds. In the absence of any such state statute, especially when DOMA expressly
permits states to enact them and a majority of states have done so, evidences the New
York Legislature’s intent not to hinder state recognition of spousal bonds that same-
gender couples legally create in sister or foreign jurisdictions. The additional New York
principle that recognition should be broadly extended to any spousal relationship legally
created between two parties in a sister jurisdiction and not in gross violation of New York
public policy supports full recognition of same-sex spousal bonds created through
Massachusetts marriages.
New York courts have always resolved cases regarding New York’s recognition
of spousal bonds created in sister or foreign jurisdictions by relying on state-law based
principles of comity, generally without resort to United States Constitution’s Full Faith
and Credit Clause. In arguing that Full Faith and Credit does not require this Court to
Appendix Page 31

32. recognize Jerry as a “surviving spouse,” defendant has once again missed the point.
State-law comity principles require New York’s recognition of Jerry and Bryan’s
spousal relationship, regardless whether Full Faith and Credit would also require such
recognition. Because comity resolves the issue, this Court need not (and should not)
delve into federal constitutional Full Faith and Credit concerns.
III. New York Law Requires that the Court Respect the Reality of Jerry and Bryan’s
Lengthy, Committed Spousal Relationship
Even if this Court were to conclude that the Massachusetts marriage by itself does
not make Jerry a surviving “spouse” entitled to distribution under New York’s wrongful
death statute, New York common law supports recognition of Jerry and Bryan as spouses
based on the totality of their more than 11-year committed, loving, and mutually
supportive relationship. The New York Court of Appeals has provided a viable
framework for determining whether same-gender couples should be entitled to the legal
benefits and protections that married couples receive, which New York courts have been
implementing ever since. Although the specific holding in that case was that the same-
sex life partner of the deceased tenant in a rent-controlled apartment was a “family
member” entitled to succession rights, at least three New York courts have applied the
same principles to recognize same-sex couples as spouses under New York law.
Far more than entering into a Massachusetts marriage, Jerry and Bryan took every
step available to them under the law, with their employers, with their family and friends,
and in society generally to legalize, formalize, and protect their relationship and to have
recognized precisely what plaintiff asks this Court to recognize: that Jerry and Bryan
were spouses in a long-term committed relationship. In the pending case, Jerry and
Appendix Page 32

33. Bryan’s relationship easily satisfies all of the relevant factors that entitle Jerry, as
survivor, to legal protection and benefits under the standard recognized by the New York
Court of Appeals.
Jerry and Bryan legally formalized their relationship in almost every way
possible, not only by becoming spouses through a formal legal marriage in
Massachusetts, but by executing wills, designating one another sole beneficiary and sole
executor of the other’s estate, and securing health care proxies, life insurance policies,
and joint listings on their leases. The couple’s dedication, caring and self-sacrifice were
evident to the day of Bryan’s death and beyond.
If ever there were a case where equitable principles should be applied to permit
same-sex partners to be recognized as “spouses,” this is certainly that case. Despite their
youth and their health, Jerry and Bryan availed themselves of every available opportunity
to cloak their relationship and each other with legal protection and recognition, and they
solemnized their relationship in the sole U.S. jurisdiction that has expressly recognized
the validity of same-sex marriages, as opposed to statutory constructs such as domestic
partnerships and civil unions, which are often created solely for the purpose of preserving
the traditional marriage relationship for heterosexual couples. It is well settled in New
York that courts have the equitable power to grant a person the powers, protections,
benefits, and privileges of a close family members, including a “spouse,” even where no
formal legal instrument or necessary biological relationship otherwise exists to create the
protected relations.
Yet in contrast to the parties to whom New York courts have accorded full legal
Appendix Page 33

34. recognition as next of kin, Jerry and Bryan did have a formal legal instrument – their
marriage – that legally made them spouses and makes Jerry the surviving spouse of
Bryan. Where an equitable and economic understanding of the real relationship
between the parties has been sufficient to extend full legal protections, it would be
particularly irrational and unjust to deny Jerry recognition of his formal, legal status as
Bryan’s marital spouse.
IV. To Preclude Jerry from Seeking Recovery for Wrongful Death Would
Violate His State Constitutional Right to Equal Protection.
As discussed above, Jerry is entitled to recognition as a “surviving spouse” under
a literal and correct reading of New York’s wrongful death law, well-settled principles of
state-law comity, and application of a functional definition of the term “spouse” under
state law and relevant precedent. However, if this Court were to reject this well-
established authority and precedent and conclude that plaintiff is not a “surviving spouse”
under the wrongful death statute, plaintiff nonetheless must be afforded all the benefits
and protections of a spouse (including the right to recovery under this wrongful death
suit) based on his right to equal protection under the laws pursuant to New York State’s
Constitution. N.Y. Const. art. I, § 11..
New York’s Court of Appeals has interpreted both fundamental rights and equal
protection as being more expansive under New York’s State Constitution than under the
United States Constitution. New York courts therefore have extended certain
constitutional protections that federal courts have declined to find under federal
constitutional law. See, e.g., People v. Kern, 75 N.Y.2d 638, 554 N.E.2d 1235, 555
N.Y.S.2d 647 (1990) (rejecting federal standard and using more stringent state
Appendix Page 34

35. constitutional standard to find that peremptory challenges to exclude jurors of particular
race violate Equal Protection Clause of New York Constitution).
That defendant’s interpretation of the statute would also exclude unmarried
different-gender couples does not save it from constitutional infirmity. Unmarried
different-sex couples have the ability to marry, but have chosen not to do so. In stark
contrast, to date, no same-sex couple has succeeded in obtaining a marriage in New York.
Thus, if defendant’s view were to prevail, partners in same-gender couples would face an
insurmountable barrier to protection under the wrongful death statute that partners in
different-gender couples do not face. Courts have struck down laws that, while
ostensibly neutral on their face, result in de facto discrimination by failing to take into
account the differing circumstances of particular groups. See Anderson v. Celebrezze,
460 U.S. 780, 801 (1983); Council of Alternative Political Parties v. Hooks, 121 F.3d
876, 882-83 (3d Cir. 1997).
Jerry and Bryan went to great lengths to do everything possible to secure all the
protections, benefits and responsibilities of being legal spouses. In light of this
fundamental difference, any contention that Jerry and Bryan are treated in a manner
similar to heterosexual unmarried couples glosses over the basic legal disability that
places the two groups into two entirely different situations and renders any purported
equation of the disingenuous at best.
No legitimate state or government interest would be promoted by denying same-
gender couples the right to access the law’s wrongful death remedies and protections, and
incalculable harm would be imposed on same-gender couples. If defendant’s
construction of the wrongful death law is accepted, the law would be interpreting the
Appendix Page 35

36. statute in such a way as to violate Jerry’s right to equal protection under the New York
Constitution. Under those circumstances, he should be entitled to recover as if he were a
surviving spouse under New York law in order to preserve those superseding rights. See
People v. Kern, 554 N.E.2d 1235 (N.Y. 1990).
CONCLUSION
For the foregoing reasons, plaintiff Jerry West respectfully asks this Court to
convert defendant Mercy Hospital of New York’s partial motion to dismiss into one for
partial summary judgment, deny that motion, and grant plaintiff’s motion for partial
summary judgment. As decedent Bryan Kessler’s surviving spouse, Jerry West is
entitled to recover under New York’s wrongful death law.
Respectfully submitted,
Dated: New York,
New York
January 9, 2005
_______________________
____
David Barrett, Esq.
N.Y. Bar No. 513186
Grynn & Barrett, PC
419 Park Avenue South, 2 nd
Floor
New York, NY 10016
Appendix Page 36

37. CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Memorandum of Law was
served on the following person by depositing a copy in the United States Mail, first class
postage prepaid, on the 9th day of February 2005, addressed to:
Ronald Dewgoode
Dewgoode, Goforth & Prosper
735 E. 3rd Ave.
New York, N.Y. 00103
_________________________
David Barrett, Esq.
N.Y. Bar No. 513186
Grynn & Barrett, PC
419 Park Avenue South, 2 Floor
nd
New York, NY 10016
Appendix Page 37

38. IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF NEW YORK
JERRY WEST, in his Capacity as Executor )
of the Estate of BRYAN KESSLER, Deceased, )
and JERRY WEST, Individually, )
)
Plaintiffs, ) Index No: 11618/2002
) Judge Donald Gumper
v. )
)
MERCY HOSPITAL OF NEW YORK, )
)
Defendant. )
)
State of New York )
) :ss
County of New York )
AFFIDAVIT OF JERRY WEST
JERRY WEST, a competent witness over the age of 21, having been duly sworn,
states as follows:
1. I am the plaintiff in this action and the surviving life partner of Bryan
Kessler. I submit this affidavit in opposition to the motion to dismiss filed by defendant
Mercy Hospital of New York.
2. For more than fifteen years, Bryan and I were soul mates and spouses
committed to one another in a loving, stable, and committed life partnership. We loved
each other as deeply as it is possible for a couple to love each other. We did everything
possible to formalize, legalize, and protect our relationship and our lifelong commitment
to each other.
Appendix Page 38

39. 3. Bryan and I were introduced to each other by mutual friends on September
14, 1993. At that time, Bryan was 32 and I was 27. Eight months after we met, we
moved in together. We lived together as a couple in a committed life partnership for the
rest of Bryan’s life.
4. By Spring 2004, Bryan and I had lived together as a couple for almost
eleven years. A few weeks before Massachusetts began to issue marriage licenses to
same-sex couples, Bryan asked me if I would marry him in Massachusetts. With great
enthusiasm, I agreed to do so.
5. As a lawyer, Bryan understood the legal implications of entering into a
formal marriage relationship. Once he explained them to me, we were both eager to
finally obtain legal recognition of our relationship as spouses, with the same benefits,
protections, and responsibilities as spouses in a traditional marriage.
6. On February 22, 2004, Bryan drove to Provincetown, Massachusetts to
search a suitable place for our wedding and a local official to perform the ceremony.
7. A week or two later, Bryan and I drove to Provincetown together and
decided on a hotel for the wedding and the reception. Having already waited for almost
eleven years, we were eager to have the ceremony and become legal spouses as soon as
possible. We reserved a suite for our ceremony and began making other arrangements
for our wedding.
8. We arranged a small but formal wedding, which was attended by some 40
extended family members and close friends.
9. We agreed to ask Alan Matzkin, our friend and Bryan’s lifelong pal, to be
Best Man at our wedding. Years before, Bryan had been Alan’s Best Man at Alan’s
Appendix Page 39

40. wedding.
10. On May 19, 2004, just two days after same-sex marriages became legal in
Massachusetts, Bryan and I had our wedding in Provincetown, Massachusetts. Our
Massachusetts Marriage License and Certificate are a matter of public record, and they
were signed and dated by the local magistrate on May 19, 2004.
11. At the wedding ceremony, which was videotaped by my cousin’s spouse,
and witnessed by the local magistrate and our family and friends, each of us took
identical vows to the other, stating:
I [Bryan /Jerry], take you [Jerry/Bryan], to be my lawful
wedded spouse, to have and to hold from this day forward, for
better, for worse, for richer, for poorer, to love and to cherish,
so long as we both shall live.
12. After exchanging vows, we exchanged wedding bands as a physical symbol of
our joining together as spouses. With the exchange of rings, we each said to
the other: “With this ring, I marry you.” It was always our understanding that
in entering into a civil union, each of us accepted the same legal
responsibilities, and the same legal protections and benefits, as spouses in a
traditional marriage relationship. For us, it was legal recognition of the loving
and committed life partnership we had been sharing for more than a decade.
13. When we first met in 1993, Bryan was a young lawyer. He was a 1986
graduate of Case Western Reserve Law School. After graduation, he lived in
Eastchester, New York, commuting daily to work at a small Manhattan law
firm. At that time, I was living in Prospect Park, New Jersey, just getting my
own career underway as an insurance claims representative. Bryan and I saw
each other at least every weekend, usually in Manhattan.
Appendix Page 40

41. 14. Less than three months after we met, in December 1993, Bryan spent
Christmas with me in Prospect Park, New Jersey. For the next six months, he
visited me every weekend, commuting from Eastchester, New York to
Prospect Park, New Jersey.
15. In June 1994, Bryan proposed that we move in together. He found a small
apartment he could afford in the Bronx, and we moved in together the
weekend of July 4, 1994. From then until Bryan’s untimely death, we lived
together at various addresses in New York and New Jersey.
16. Because Bryan was a lawyer with a Manhattan law firm, his income was
substantially greater than mine. Consequently, he paid almost all of our bills,
including our rent, for the first several years.
17. In September 1995, Bryan took a new job as a commercial litigation associate
with the Manhattan office of Pell, Mell & Bewilder, a San Francisco-based
law firm. He continued to work there until the spring of 1998.
18. During Bryan’s nearly three years working at Pell, Mell & Bewilder, I was
introduced to many of his colleagues as his life partner, and we became
friends with several of them.
19. Gradually, our respective families became more accepting of our relationship,
and eventually they came to embrace us as spouses and members of the
respective other’s family.
20. Bryan first met my parents, who live in Buffalo, New York, in the summer of
1995, and we saw them about once a year after that.
21. I met Bryan’s parents within a few months after the beginning of our
Appendix Page 41

42. relationship, and we spent Thanksgiving with them in November 1994. Bryan
and I often invited his family over for dinner, and we spent many major
holidays together.
22. Although I was raised Catholic, I always enjoyed spending the Jewish
holidays with Bryan’s family, and I was glad they welcomed me for these and
many other occasions. Bryan and I got together with his family for almost
every Passover Seder, Rosh Hashanah, Yom Kippur, Sukkoth, and Hanukah.
23. Bryan and I both became very fond of our niece Sarah and nephew Daniel, the
children of his brother Elliot and his wife Laura. We often talked about the
possibility of having children of our own. We even discussed the possibility
of my converting to Judaism if we did have children, so we could raise our
children in the Jewish faith, which was important to Bryan and his family and
therefore to me. Although we never had the opportunity to have children, we
were grateful to have such a close relationship with our niece and nephew and
to spend so much time with them.
24. In January 1997, Bryan and I moved to Westfield, New Jersey, so that I could
accept a new position as an insurance underwriter in New Jersey. Bryan
continued to commute daily to work in Manhattan. Although we were living
much farther away from his family than before, we continued to see them at
least several times a month. Over the years, as I was increasingly accepted as
a member of his family, I also embraced Bryan’s family as my own.
25. In April 1998, I was offered a management position in Saddle Brook, New
Jersey with my insurance company, which I hoped might lead to becoming a
Appendix Page 42

43. full-fledged independent agent. Bryan and I both saw this as an important
opportunity. We therefore moved to Saddle Brook.
26. Around the time of that move, Bryan left Pell, Mell & Bewilder and began
working as a solo practitioner. Over the next 6 1/2 years until his death, as he
continued his litigation practice, he also spent an increasing amount of time
helping me succeed in my insurance business, using his skills in law, business,
and marketing. His contributions were enormously valuable, and working
together, we became a family business.
27. From October 1998 until June 2000, I went through intense training
programs, taking classes and tests; visiting and assisting numerous independent agents;
and undergoing company evaluations to eventually become an independent insurance
agent. During that time, I also worked full time as an agency consultant, assisting
independent and trainee agents throughout Nassau County in retaining and expanding
their client base and handling the related agency documentation.
28. This 20-month period was grueling and difficult for me, and Bryan was a
supportive spouse in every possible way: emotionally, personally and
professionally. He helped me with my writing assignments, and he advised
me how to position myself strategically to improve my chances of becoming
an independent agent. He was also there to provide love and emotional
support whenever I needed it.
29. After I became a trainee agent in July 2000, Bryan was instrumental in
helping us obtain enough business as an insurance agency and build what we
considered our family business.
Appendix Page 43

44. 30. Indeed, within my one-year “trial period” as a trainee agent from July 2000 to
July 2001, Bryan and I had to meet certain quotas set by the parent company
in order to become an independent contractor insurance agency. During this
period, almost all members of Bryan’s family purchased insurance from us to
help us meet our quotas, and I remain extremely grateful to them for coming
to our assistance in a way that we could only expect of family.
31. Moreover, in June 2000, Bryan’s uncle, Arthur Penn, whom I always thought
of as my own uncle as well, loaned what was to Bryan and me a substantial
sum to help us set up our insurance agency. To me, this was yet another
example of Bryan’s family treating me like a member of their own.
32. Bryan was a quick study, and by December 2000, he became licensed as a
“sub-agent” to sell all lines of insurance coverage: automobile, fire, life, and
health.
33. By 2001, Bryan had become a full-time contracted employee agent with our
family business, and something of an expert in insurance. He was our
“marketing guru,” helping us obtain business that I never would have been
able to obtain on my own. He used his legal knowledge to help me draft letters
to policyholders and people in the parent company, negotiate and then close
on a lease for my office, set up an independent insurance agency, and set up
and train our agency staff.
34. In addition, Bryan arranged for us to have tables at various town events and
shows promoting our business. He arranged all newspaper and magazine
advertisements and drafted letters to our parent company explaining our
Appendix Page 44

45. advertising strategy. He attended all seminars sponsored by the parent
company, which saw Bryan as a key player in the success of our family
agency. He ordered all marketing material for the promotion of the agency,
and was instrumental in helping me become an active Chamber of Commerce
member, because he knew that it would benefit our family business.
35. Right up until the time of his death, Bryan was continuing to assist the
development of our family insurance business in these and many other
valuable ways.
36. As a lawyer, Bryan was concerned about the lack of legal protections that
we had in the absence of being legal spouses. Beginning in the mid-1990’s, both of us
would read about extended families excluding same-sex life partners from decision
making regarding the healthcare of a physically or mentally incapacitated individuals.
37. We also read and were concerned about stories regarding extended families of
deceased persons disrespecting same-sex surviving partners, legally evicting
them from their longtime homes, excluding them from decisions about funeral
arrangements, and denying them access to the couples’ joint possessions and
property registered under the deceased partners’ names.
38. In 1998, Bryan and I decided to take legal steps to protect our life
commitment. One of his fellow law associates prepared health care proxies
for us, and we had them fully executed to ensure that we would be able to
make healthcare decisions for each other in case of any emergency. As of
1998, we still had almost no assets, so we decided the expense of obtaining
wills was not justified.
Appendix Page 45

46. 39. Beginning in 1999, we each purchased life insurance for the first time in our
lives, and Bryan and I consistently designated each other as “primary” and
“direct” beneficiaries of each other’s life insurance policies.
40. Our homeowners’ insurance policy, by listing us jointly, evidenced that we
were joint owners of all our property.
41. Likewise, we are jointly named in our Personal Liability Umbrella Policy,
evidencing joint and intermingled financial obligations.
42. In December 1999, just before leaving on a trip for Iceland, and prompted by
“Y2K”-related concerns about flying at that time, Bryan and I finally made
out wills, naming each other sole beneficiaries and executors of each other’s
estates. At the same time, we updated our health care proxy designations, by
which we each designated the other as sole health care agent.
43. After Bryan’s death, as Executor of his Estate, I had to deal with a
mountain of papers at the most difficult and grief-stricken time in my life.
44. At different times in our relationship, Bryan and I each took greater or
lesser responsibility for our overall expenses, depending on our respective incomes.
Early in the relationship, I was almost completely financially dependent on Bryan, but
over the years, we became financially interdependent. On our leases from Harrison, New
York; Westfield, New Jersey; Massapequa Park, New York; and Saddle Brook, New
Jersey, both our names were listed, reflecting that we were jointly responsible for our
single biggest expense, the cost of our living space.
45. On Christmas morning 2000, when Bryan and I were getting ready to go
spend the day with my aunt in New Jersey, just as we had on Christmas in
Appendix Page 46

47. previous years, we received an unexpected call from Bryan’s brother Elliot
with tragic news: Bryan’s maternal uncle, Arthur Penn, only 61 years old, had
suffered a heart attack in his sleep and had died earlier that morning.
46. Understandably shocked, Bryan sat on the living room stairs and cried. It was
one of the only times I ever saw Bryan cry. I wanted to support him in every
way I could.
47. On November 12, 2004, I received a call at my office from a doctor at Mercy
Hospital. He told me that Bryan had been struck by a car and was there in the
hospital. I immediately became very upset and worried, but then I heard
Bryan shout in the background: “Tell him I’m okay! I’m okay!”
48. I demanded to speak with Bryan, and the doctor put him on the phone. Bryan
told me that he was okay, that a car had hit him, and his leg was broken. He
asked me to bring him his wallet, which he had left at home.
49. Bryan told me that I was the only person that he had asked the hospital to call.
I therefore called his brother Elliot, who works in Manhattan not far from
Mercy Hospital, and Elliot in turn informed Bryan’s other close family
members.
50. When I arrived at the hospital, Bryan was on his way into the surgery room.
He had given his brother Elliot a handwritten note to give me. It read as
follows:
Jerry:
I’m going under. I haven’t had a chance to see you. I love you.
Appendix Page 47

48. I’ve made my life in your heart.
Bryan
51. When I told the staff at the hospital that I was Bryan’s life partner, they let
me go up to the operating room to meet the surgeon and the anesthesiologist. Indeed,
throughout Bryan’s remaining time alive, the Mercy Hospital staff treated me as the
spouse that I am.
52. In the operating room, Bryan, the surgeon, the anesthesiologist, and I
decided together that Bryan should have general anesthesia before the surgery. I stayed
in the operating room until the doctors told me that I had to leave. I then kissed Bryan
goodbye, and went to wait until after the surgery was over.
53. At approximately 1 a.m., early on November 13, 2004, Bryan came out of
surgery, still groggy from the anesthesia. His brothers, Jeremy and Elliot, and I were
waiting for him in the waiting area. When the nurses finally let us into his room, Bryan
looked up and said to me, “Hello, sweetheart.” He then greeted his two brothers.
54. Jeremy, Elliot, and I stayed with him in the hospital until approximately 2
a.m. that night.
55. On November 13, 2004, I returned at approximately 11 a.m. or noon.
During the day, many family members and friends came to visit Bryan. As they came and
left, I stayed the entire time.
56. Bryan’s mother, Ruth Kessler, was in Florida. When she called to ask
whether she should come up, Bryan told her that it was just a broken leg, and she should
stay in Florida. Over the years, I have had the privilege of getting to know Bryan’s
wonderful mother quite well, and I predicted aloud that she would return from Florida to
Appendix Page 48

49. see Bryan. In fact, the next day, she did arrive in the hospital.
57. I stayed in the hospital with Bryan that day until approximately 11 p.m.
When I went home, I was the last to leave him. He was scheduled for a second surgery
the next day.
58. On November 14, 2004, the day of Bryan’s second surgery, I again
returned to the hospital at approximately 11 a.m. or noon. Again, many of Bryan’s
relatives came to visit. During the day, I went to buy him supplies, like paper cups, to
make him more comfortable. Otherwise, I did not leave the hospital.
59. In the early evening of November 14, Bryan was brought in for his second
surgery. Other than the medical staff, I alone initially went in with him, and again we
decided on general anesthesia. When I was told I had to leave, I kissed him on the
forehead and left the room to wait for the surgery to be over.
60. At approximately 8:30 p.m., hours before Bryan returned to his hospital
bedroom, a member of the medical staff told Bryan’s mother, his brother Jeremy, and me,
who were waiting together in Bryan’s hospital bedroom, that the surgeons had
successfully closed the wound, that the surgery was a clean success, and that Bryan
would be able to return home on November 18. With this good news, at approximately
9:00 p.m., Bryan’s mother and Jeremy returned home. I remained at the hospital with
Bryan.
61. Sometime near midnight, Bryan was wheeled into his hospital bedroom. I
did everything I could to make Bryan comfortable, including helping him with his
glasses, brushing his teeth, and washing his face, as the orderly hooked up his
intravenous drip.
Appendix Page 49

50. 62. I then told Bryan that I would see him the next day and kissed him
goodnight. He said, “Goodnight, sweetheart.” I returned home and went to sleep.
63. On November 15, at 7:15 a.m., I awoke to a telephone call from Dr.
Steven Touliopoulos of Mercy Hospital. To my complete shock, disbelief, and horror,
Dr. Touliopoulos informed me that Bryan had died earlier that morning. Overcome with
grief, I sat on the living room stairs and cried, just as Bryan did when his uncle died.
64. I was the first and only one that Mercy Hospital called with this news.
Even in Bryan’s death, Mercy Hospital treated me as Bryan’s spouse.
65. My world was suddenly and completely shattered by this horrifying news.
I cannot begin to describe the grief that overcame me. I sat on the living room stairs and
cried, just as Bryan had done years earlier when his dad died.
66. When I arrived at the hospital the same morning that Dr. Touliopoulos
told me that Bryan had passed away, a grievance counselor employed by Mercy Hospital
was waiting to comfort me on the death of my spouse. She spent hours with me until I
left the hospital.
67. Bryan’s obituary that appeared in The New York Times identified me first
in the list of survivors as his spouse.
68. The e-mail sent out by my company after I advised them of Bryan’s
untimely death identified him as my “life partner.”
69. I received sympathy cards from various nieces, nephews, and friends’
children, illustrating that these children understood that Bryan and I were in a lifetime
relationship as spouses.
70. Bryan was the love of my life. I have never been closer to anyone. We
Appendix Page 50

51. had plans, goals, and dreams that I will never be able to fulfill without him.
71. I miss everything about Bryan, every moment of my life. I miss lighting
the Hanukah Menorah with him. I miss him being happy watching me put up the
Christmas tree. I miss him saying every morning “two more minutes” after the alarm
rings, and I miss seeing him still asleep in bed 30 minutes later. I miss his love, affection,
and caring, and I miss giving all those things to him. Every night, I still wait for him to
walk through the door, the way he would every night, hug me, and say to our dogs,
“Hellozens to the Snarkies!”
72. I buried Bryan with my tears on his face, and with the ring I gave him at
our wedding placed on his heart. As he wrote in his final note to me, Bryan and I lived in
each other’s hearts, and he will continue to live in mine, forever.
___________________________
Jerry West
Sworn to before me this 31st day of January , 2005
_____________________________________
Notary Public
My Commission Expires: September 3, 2007
Appendix Page 51

52. IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF NEW YORK
JERRY WEST, in his Capacity as Executor )
of the Estate of BRYAN KESSLER, Deceased, )
and JERRY WEST, Individually, )
) Index No: 11618/2005
Plaintiffs, ) Judge Donald Gumper
)
) ORDER ON MOTION FOR
v. ) DISMISSAL AND CROSS-
) MOTION FOR
PARTIAL
) SUMMARY JUDGMENT
MERCY HOSPITAL OF NEW YORK, ) Motion Submitted 1/31/05
)
Defendant. )
)
MEMORANDUM AND ORDER
This matter comes before the court on Defendant’s Motion for Dismissal
(Doc. 2) and Plaintiff’s Memorandum in Opposition and Cross-Motion for Partial
Summary Judgment (Doc. 4). Because evidence has been submitted by both
parties in support of their respective motions, the Court will consider the
Defendant’s Motion for Dismissal as a Motion for Summary Judgment, as well as
Plaintiff’s Cross-Motion. See Fed. R. Civ P. 12(b), 56(a).
This is action for wrongful death and medical malpractice brought by the
decedent’s surviving partner. The narrow issue presented by the motion and
cross-motion is whether, under principles of full faith and credit or comity,
plaintiff Jerry West’s legal status as a spouse of Bryan Kessler, in a marriage
Appendix Page 52

53. solemnized in the State of Massachusetts, which was sanctioned and afforded all
benefits and obligations of a marriage under the laws of Massachusetts, entitles
him to recognition as a "spouse" under New York's wrongful death statute. In the
alternative, Plaintiff argues that his equal protection rights under the New York
Constitution would be violated if this court were to construe the statutory term
“spouse” so narrowly as to bar him from recovery for wrongful death. Plaintiff
does not raise any derivative claim for loss of consortium.
Jurisdiction and Venue
Plaintiff Jerry West resides in Saddle Brook, New Jersey. Defendant,
Mercy Hospital of New York, is a health care provider whose principal place of
business is in New York City, Manhattan Island, New York. The amount in
controversy far exceeds $ 75,000. Consequently, this court has diversity
jurisdiction pursuant to 28 U.S.C. § 1332(a)(1), (c)(1). Venue is proper in this
district because the defendant hospital “resides” in this forum for purposes of 28
U.S.C. § 1391.
Background
As background for analysis, the circumstances of Bryan Kessler’s death, as
well as the circumstances of his life are reviewed.
Bryan Kessler and Jerry West met on September 14, 1993 when Kessler was
32 and West was 27. They moved in together eight months later and lived together
until Kessler's death in November 2004. They provided each other with health
Appendix Page 53

54. care proxies, named each other as the sole beneficiary on the other's life insurance
policy, listed themselves as joint owners on their homeowner's insurance policy, and
were the sole legatees under each other’s wills.
In the year 2004, Massachusetts courts legally sanctioned same-gender
marriages in the same manner as a traditional marriage. Massachusetts requires the
same solemnization procedures for same-sex marriages as it does for heterosexual
marriages, and the solemnization creates spouses for all purposes under Massachusetts
state law. Within days after the effective date of the Massachusetts ruling, Kessler
and West were married by a local magistrate in Provincetown, Massachusetts, in a
formal ceremony with approximately forty family members and friends attending.
Their vows included taking each other "to be my spouse.” They exchanged wedding
bands; they planned to adopt children, and finally purchased a house in Saddle
Brook, New Jersey. Within hours of the closing, Bryan Kessler was struck by the
automobile driven by Robert Popavich, who ran down and injured 18 people in
Manhattan. Having suffered a badly broken leg, Kessler was taken to Mercy
Hospital in New York City, where he underwent two surgeries. Unfortunately, he
died while in the hospital from an embolus of "unknown origin."
The words of the decedent’s family are telling when they describe their
feelings for Bryan Kessler and describe the nature of his relationship with plaintiff.
First, the parents: Ruth Kessler, Bryan’s mother, knew Jerry West as her son's
partner for more than 11 years. Even her grandchildren know Jerry as an uncle.
As she explains, "Jerry has been Bryan’s partner in all aspects of life." They
Appendix Page 54

55. participated together "in all family functions" including "birthdays, anniversaries,
religious events, holidays, dinners, and vacations." Plaintiff's parents, Daniel and
Barbara West, worried that their son would face "prejudice, hostility, and other
difficulties," and initially they did not accept his relationship with Kessler. But
they changed, stating "Jerry has always loved life, but we believe he loved Bryan
even more. It is as if a part of him died when Bryan died. "
Jeremy Kessler, Bryan’s brother, says of plaintiff, "I . . . think of him and
care for him as a family member . . . ." He related how Jerry had been a source of
strength when their maternal uncle died, and how he and Bryan, knowing it would
be difficult for Bryan’s mother, held the holiday Seders at their home in
Massapequa, Long Island. "It was a difficult time for everyone, made easier by
being in their loving home.” Elliot Kessler, another brother, states that the civil
union was important to Bryan because of his "interest in adopting children.”
There are additional affidavits from family. A sister-in-law, Laura Kessler,
stated, "There was never a time in all those 11 years when it was just Bryan, or
just Jerry. It was always Bryan and Jerry, together, spouses . . . as inseparable as
any married couple could possibly be." The affidavits of other family members,
cousins, aunts, godmother, echo these sentiments. Cousin Kim Marie Merritt
sums up their loss, stating that since Bryan's death, Jerry "is still working to put
one foot in front of the other. We are all working to put our lives back together
after losing a beloved family member so young, so suddenly."
Appendix Page 55