Kramer Levin Victory for Same-Sex Domestic Partner of 9/11 Victim Sustained on Appeal

A New York appeals court has sustained a trial court ruling that the same-sex domestic partner of a September 11 victim could claim all or part of the award made by the September 11th Victim Compensation Fund on behalf of her late partner.  Because the victim died without a will and her family refused to recognize our client’s partnership with the victim, our client was unable to act as the victim’s personal representative.  Eric Shimanoff and Kerri Ann Law convinced Special Master Kenneth Feinberg to increase the award to recognize the more than 15 year relationship.  Unfortunately, once the Fund issued the full award to the victim’s brother in his role as personal representative, the brother declined to distribute any portion of the award to our client, as the Special Master had intended, forcing the matter into litigation.  A State Supreme Court Justice granted a preliminary injunction and sustained the complaint in 2004, and the brother appealed to the Appellate Division, Second Department, which affirmed the trial court in a May 4, 2006 decision.

The Second Department recognized the brother's duty as personal representative to distribute the award "in a manner consistent" with state law and that both the Legislature and the Governor had acted to include surviving domestic partners in the various programs enacted to compensate family members of 9/11 victims:  "[T]his state has recognized that surviving domestic partners should received compensation for the loss of their loved ones due to the September 11, 2001 terrorist attacks."  The court concluded, based on plaintiff's allegations, that it would violate both legislative intent and "good conscience" for plaintiff not to receive at least the amount added to the award on account of her relationship with the victim.  The court also held that the brother, as personal representative, was not immune from suit to determine proper distribution of the award.  Jeffrey S. Trachtman argued the matter in the trial court and the Second Department.