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Lennon v Charney (2005 NY Slip Op 25237)

Supreme Court, Westchester County, June 14, 2005
APPEARANCES OF COUNSEL
Susan B. Owens, Valhalla, for David H. Charney, defendant. Mary A. Bjork, Yonkers (Carol
A. Morell of counsel), for Linda June Mercello, defendant. Mark A. Campbell, Valhalla, for plaintiffs.
OPINION OF THE COURT
John R. LaCava, J.
Plaintiff Ellen Lennon commenced this action for personal injuries sustained in a motor vehicle accident which took place on July 1, 2003 on Central Park Avenue in the City of Yonkers, State of New York. Plaintiff Joseph Mazzelli sues for loss of Lennon's services, society, and consortium.
The sole issue before the court is whether persons, like plaintiffs, who are not married to one another but who are registered domestic partners under section 3-240 et seq. of the New York City Administrative Code can maintain a derivative action for loss of the services and consortium of the other. The court answers the question in the negative.
It is a rule in this state that damages cannot be recovered under a claim for loss of consortium
file:///C|/Users/Peter/Desktop/NY/2/2005_25237.htm[4/21/2013 2:13:35 PM] Lennon v Charney (2005 NY Slip Op 25237)
unless the party asserting said claim was lawfully married to the injured person at the time of the actionable conduct (Briggs v Butterfield Mem. Hosp., 104 AD2d 626 [1984]; see, Du Bois v Community Hosp. of Schoharie County, 150 AD2d 893, 894 [1989]; Lesocovich v 180 Madison Ave. Corp., 165 AD2d 963 [3d Dept 1990], lv denied 77 NY2d 804 [1991]; see also Rademacher v Torbensen, 257 App Div 91 [4th Dept 1939]). Since it is uncontroverted that plaintiffs were not married at the time the cause of action accrued, there is no basis for recovery of lost services or consortium of the other. The lawful passage of the New York City Domestic Partnerships Law (Administrative Code of City of NY

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