SEYMOUR v. New York State Department of Health, Respondent. (2006)

Appeal from an order of the Supreme Court (Mulvey, J.), entered February 24, 2005 in Tompkins County, which, inter alia, granted a cross motion by defendant Department of Health for summary judgment dismissing the complaint and all cross claims against it.

Plaintiffs commenced this action challenging those portions of the marriage laws that limit marriage to one woman and one man.   They contend that this constitutes a violation of the Due Process and Equal Protection Clauses of the N.Y. Constitution.   Defendants City Clerk and the City of Ithaca (hereinafter collectively referred to as the City) agreed with plaintiffs' constitutional contentions and further alleged, among other things, that the Domestic Relations Law does not currently limit marriage to one woman and one man.   Plaintiffs and the City moved for summary judgment and defendant Department of Health cross-moved for summary judgment.   Supreme Court denied the motions of plaintiffs and the City, but granted the cross motion of the Department of Health (7 Misc.3d 530, 790 N.Y.S.2d 858 [2005] ).   This appeal ensued.

 We affirm.   As set forth in Samuels v. New York State Dept. of Health, 29 A.D.3d 9, 811 N.Y.S.2d 136 [2006] [decided herewith], New York's marriage laws do not violate the N.Y. Constitution.   Moreover, we find no merit in the City's argument that the Domestic Relations Law does not currently set forth marriage as being between one woman and one man.   The specific wording and historical context of Domestic Relations Law articles 2 and 3 (enacted approximately 100 years ago) make clear that the Legislature intended marriage to be between one woman and one man (see e.g. Domestic Relations Law §§ 5, 6, 12, 15 [references to “husband,” “wife,” “groom,” “bride”];  Fearon v. Treanor, 272 N.Y. 268, 271-273, 5 N.E.2d 815 [1936];  Fisher v. Fisher, 250 N.Y. 313, 316, 165 N.E. 460 [1929];  Matter of Cooper, 187 A.D.2d 128, 133, 592 N.Y.S.2d 797 [1993], appeal dismissed 82 N.Y.2d 801, 604 N.Y.S.2d 558, 624 N.E.2d 696 [1993];  Matter of Shields v. Madigan, 5 Misc.3d 901, 904-906, 783 N.Y.S.2d 270 [2004];  Frances B. v. Mark B., 78 Misc.2d 112, 116-117, 355 N.Y.S.2d 712 [1974];  Anonymous v. Anonymous, 67 Misc.2d 982, 984, 325 N.Y.S.2d 499 [1971];  2004 Ops. Attorney General No. 2004-1;  cf. Levin v. Yeshiva Univ., 96 N.Y.2d 484, 503, 730 N.Y.S.2d 15, 754 N.E.2d 1099 [2001] [Kaye, J., concurring in part and dissenting in part] [noting that “homosexual students ․ cannot marry”];  Matter of Valentine v. American Airlines, 17 A.D.3d 38, 791 N.Y.S.2d 217 [2005];  Raum v. Restaurant Assoc., 252 A.D.2d 369, 675 N.Y.S.2d 343 [1998], appeal dismissed 92 N.Y.2d 946, 681 N.Y.S.2d 476, 704 N.E.2d 229 [1998] ).   The remaining issues are academic.

ORDERED that the order is affirmed, without costs.

LAHTINEN, J.

CARDONA, P.J., MERCURE, CARPINELLO and MUGGLIN, JJ., concur.