author: Pigott, J. Ciparick, J. (concurring).

text:
    [920 NE2d 328, 892 NYS2d 272]
    Margaret Godfrey et al., Appellants, v Andrew J. Spano, as Westchester County Executive, et al., Respondents, and New York State Comptroller, Intervenor-Respondent. Kenneth J. Lewis et al., Appellants, v New York State Department of Civil Service et al., Respondents.
    Argued October 13, 2009;
    decided November 19, 2009

      POINTS OF COUNSEL

      Alliance Defense Fund, Scottsdale, Arizona (Brian W Raum, Benjamin W. Bull, of the Arizona bar, admitted pro hac vice, and James A. Campbell, of the Arizona bar, admitted pro hac vice, of counsel), and Ruta & Soulios, LLP, New York City ((Joseph A. Ruta of counsel), for appellants in the first above-entitled action.
    I. Comity principles prohibit a county executive from ordering that all county departments, boards, agencies and commissions recognize same-sex relationships considered “marriages” by other sovereign jurisdictions. (Frances B. v Mark B., 78 Misc 2d 112; Anonymous v Anonymous, 67 Misc 2d 982; Hernandez v Robles, 7 NY3d 338; Marshall v Sherman, 148 NY 9; Hilton v Guyot, 159 US 113; J. Zeevi & Sons v Grindlays Bank [Uganda], 37 NY2d 220; Petersen v Chemical Bank, 32 NY 21; Baker v General Motors Corp., 522 US 222; Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574; Matter of Langan v State Farm Fire & Cas., 48 AD3d 76.) II. Home-rule principles prohibit county executives from dictating which out-of-state unions will be recognized as marriages. (Seaman v Fedourich, 16 NY2d 94; Jancyn Mfg. Corp. v Suffolk County, 71 NY2d 91; Slattery v City of New York, 179 Misc 2d 740, 266 AD2d 24; Fearon v Treanor, 272 NY 268; Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d 372; Matter of Ames v Smoot, 98 AD2d 216; New York State Club Assn. v City of New York, 69 NY2d 211; Consolidated Edison Co. of N.Y. v Town of Red Hook, 60 NY2d 99; Robin v Incorporated Vil. of Hempstead, 30 NY2d 347; Clark v Cuomo, 66 NY2d 185.)

      Alliance Defense Fund, Scottsdale, Arizona (Brian W. Raum,

      Benjamin W. Bull, of the Arizona bar, admitted pro hac vice, and James A. Campbell, of the Arizona bar, admitted pro hac vice, of counsel), and Cutler, Trainor & Cutler, LLP, Malta (James P Trainor of counsel), for appellants in the second above-entitled action.
    I. Comity principles prohibit executive officials from recognizing same-sex relationships considered “marriages” by other sovereign jurisdictions. (Frances B. v Mark B., 78 Misc 2d 112; Anonymous v Anonymous, 67 Misc 2d 982; Hernandez v Robles, 7 NY3d 338; Marshall v Sherman, 148 NY 9; Hilton v Guyot, 159 US 113; J. Zeevi & Sons v Grindlays Bank [Uganda], 37 NY2d 220; Petersen v Chemical Bank, 32 NY 21; Baker v General Motors Corp., 522 US 222; Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574; Matter of Langan v State Farm Fire & Cas., 48 AD 3d 76.) II. The Department of Civil Service acted inconsistently with the Legislature, exceeded its statutory authority, and thus violated the separation of powers doctrine. (Under 21, Catholic Home Bur. for Dependent Children v City of New York, 65 NY2d 344; Pataki v New York State Assembly, 4 NY3d 75; Rapp v Carey, 44 NY2d 157; Subcontractors Trade Assn. v Koch, 62 NY2d 422; Matter of Broidrick v Lindsay, 39 NY2d 641; Clark v Cuomo, 66 NY2d 185; Matter of Cooper, 187 AD2d 128; Matter of Valentine v American Airlines, 17 AD3d 38; Raum v Restaurant Assoc., 252 AD2d 369; Langan v St. Vincent’s Hosp. of N.Y., 25 AD3d 90.)

      Charlene M. Indelicato, County Attorney, White Plains (Mary Lynn Nicolas-Brewster and Stacey Dolgin-Kmetz of counsel), for Andrew J. Spano, respondent in the first above-entitled action.
    I. The Appellate Division correctly held that plaintiffs failed to state a claim under section 51 of the General Municipal Law against County Executive Spano. (Mesivta of Forest Hills Inst, v City of New York, 58 NY2d 1014; Kaskel v Impellitteri, 306 NY 73, 347 US 934; Matter of Korn v Gulotta, 72 NY2d 363; Matter of Meehan v County of Westchester, 3 AD3d 533, 2 NY3d 706; Slattery v City of New York, 179 Misc 2d 740, 266 AD2d 24, 94 NY2d 897; Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326; Lewis v New York State Dept. of Civ. Serv., 60 AD3d 216, 12 NY3d 705; Wein v City of New York, 80 Misc 2d 894, 47 AD2d 367; Betters v Knabel, 288 AD2d 872, 98 NY2d 659; Montecalvo v City of Utica, 170 Misc 2d 107, 233 AD2d 960, 89 NY2d 938.) II. Plaintiffs cannot maintain an action under the Municipal Home Rule Law and the New York State Constitution. (Kadish v Roosevelt Raceway Assoc., 183 AD2d 874; Matter of Meehan v County of Westchester, 3 AD3d 533; Society of Plastics Indus, v County of Suffolk, 77 NY2d 761;
      Matter of Bradford Cent. School Dist. v Ambach, 56 NY2d 158; Diederich v Rockland County Police Chiefs’ Assn., 33 AD3d 653, 8 NY3d 875; Boryszewski v Brydges, 37 NY2d 361; Citizens Util. Bd. v State of New York, 267 AD2d 838, 95 NY2d 757; Clark v Cuomo, 66 NY2d 185; Matter of Clark v Town Bd. of Town of Clarkstown, 28 AD3d 553; Matter of Madison Sq. Garden, L.P. v New York Metro. Transp. Auth., 19 AD3d 284.)

      Andrew M. Cuomo, Attorney General, New York City (Sasha Samberg-Champion, Barbara D. Underwood and Benjamin N. Gutman of counsel), for intervenor-respondent in the first above-entitled action and New York State Department of Civil Service and another, respondents in the second above-entitled action.
    I. A same-sex marriage validly performed in another jurisdiction is entitled to recognition in New York. (Matter of May, 305 NY 486; Van Voorhis v Brintnall, 86 NY 18; Matter of Mott v Duncan Petroleum Trans., 51 NY2d 289; Shea v Shea, 294 NY 909; Carpenter v Carpenter, 208 AD2d 882; Fernandes v Fernandes, 275 App Div 777; Matter of Valente, 18 Misc 2d 701; People v Ezeonu, 155 Misc 2d 344; Crair v Brookdale Hosp. Med. Ctr., Cornell Univ., 94 NY2d 524; Matter of Gotlib v Ratsutsky, 83 NY2d 696.) II. Neither the Department of Civil Service nor the Westchester County Executive has made any unlawful expenditure, regardless of whether New York recognizes same-sex marriages. (Matter of Brooklyn Assembly Halls of Jehovah’s Witnesses, Inc. v Department of Envtl. Protection of City of N.Y., 11 NY3d 327; Sarniento v World Yacht Inc., 10 NY3d 70; Matter of O’Brien v Spitzer, 7 NY3d 239; Syracuse Urban Renewal Agency v State of New York, 106 AD2d 23; Braschi v Stahl Assoc. Co., 74 NY2d 201; Slattery v City of New York, 266 AD2d 24; Beresford Apts. v City of New York, 238 AD2d 218; Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801; Matter of Altamore v Barrios-Paoli, 90 NY2d 378; McMillen v Browne, 14 NY2d 326.)

      Lambda Legal Defense and Education Fund, Inc., New York City (Susan L. Sommer of counsel), and Kramer Levin Naftalis & Frankel LLP {Jeffrey S. Trachtman, Joshua Glick, Michael B. Eisenkraft and Jason M. Moff of counsel), for Michael Sabatino and others, respondents in the first and second above-entitled actions.
    I. Out-of-state marriages of same-sex couples are entitled to legal recognition in New York under longstanding comity principles. (Matter of May, 305 NY 486; Thorp v Thorp, 90 NY 602; Van Voorhis v Brintnall, 86 NY 18; Matter of Mott v Duncan Petroleum Trans., 51 NY2d 289; Matter of

      Watts, 31 NY2d 491; People v Haynes, 26 NY2d 665; Matter of Farber v U. S. Trucking Corp., 26 NY2d 44; Shea v Shea, 294 NY 909; Matter of Catapano, 17 AD3d 672; Katebi v Hooshiari, 288 AD2d 188.) II. Appellants’ arguments distort New York law and public policy. (Hernandez v Robles, 7 NY3d 338; Martinez v County of Monroe, 50 AD3d 189; Beth R. v Donna M., 19 Misc 3d 724; Langan v St. Vincent’s Hosp. of N.Y., 25 AD3d 90; Matter of Langan v State Farm Fire & Cas., 48 AD3d 76; Kraut v Morgan & Brother Manhattan Stor. Co., 38 NY2d 445; Glaser v Glaser, 276 NY 296; Mertz v Mertz, 271 NY 466; Straus & Co. v Canadian Pac. Ry. Co., 254 NY 407; Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574.) III. The decisions below should be affirmed for the additional reasons addressed in the government respondents’ briefs. (Mesivta of Forest Hills Inst. v City of New York, 58 NY2d 1014; Montecalvo v City of Utica, 170 Misc 2d 107; Gaynor v Rockefeller, 21 AD2d 92, 15 NY2d 120.)

      Stephen J. Acquario, General Counsel, New York State Association of Counties, Albany (Robert W. Gibbon of counsel), for New York State Association of Counties, amicus curiae in the first above-entitled action.
    I. The Westchester County Executive Order was legally and constitutionally executed. (Matter of Combs v Nickerson, 38 Misc 2d 242; New York Trap Rock Corp. v Town of Clarkstown, 299 NY 77; Slattery v City of New York, 179 Misc 2d 740.) II. There is no valid claim set forth under General Municipal Law § 51. (Kaskel v Impellitteri, 306 NY 73; Western NY. Water Co. v City of Buffalo, 242 NY 202; Altschul v Ludwig, 216 NY 459; Hurley v Tolfree, 308 NY 358; Mesivta of Forest Hills Inst. v City of New York, 58 NY2d 1014; Talcott v City of Buffalo, 125 NY 280; Wein v City of New York, 80 Misc 2d 894; Gusdore Corp. v Michaels, 13 Misc 2d 762, 8 AD2d 663; Berkey v Downing, 68 Misc 2d 595, 39 AD2d 1008.)

      Frederick C. Veit, Briarcliff Manor, for New Yorkers for Constitutional Freedoms, amicus curiae in the first above-entitled action.
    I. Limiting marriage to New York’s traditional definition of one man and one woman is not tautological, as an analogy to chemistry demonstrates. (Smelt v County of Orange, 447 F3d 673; Hernandez v Robles, 7 NY3d 338; Maynard v Hill, 125 US 190.) II. The marriage recognition rule should be adapted because a single simple adjustment will allow the current rule to remain in place when one man-one woman marriage is at issue and will allow the Legislature to act in the first instance when a redefinition of marriage is at issue. (Community Bd. 7 of Borough of Manhattan v Schaffer, 84 NY2d 148; Matter

      of May, 305 NY 486; Cunningham v Cunningham, 206 NY 341; Bronson v Swensen, 500 F3d 1099.)

      Richard E. Barnes, Albany, Thomas More Society, Northbrook, Illinois (Paul Benjamin Linton of counsel), and Thomas More Society, Chicago, Illinois (Thomas Brejcha of counsel), for New York State Catholic Conference, amicus curiae in the second above-entitled action.
    Nothing in this Court’s jurisprudence requires the State of New York or any of its agencies or political subdivisions to recognize the validity of a lawful out-of-state marriage between two persons who could not have married each other in New York. (Hernandez v Robles, 7 NY3d 338; Matter of May, 305 NY 486; Van Voorhis v Brintnall, 86 NY 18; Thorp v Thorp, 90 NY 602; Moore v Hegemon, 92 NY 521; Funderburke v New York State Dept, of Civ. Serv., 13 Misc 3d 284, 49 AD3d 809; Storrs v Holcomb, 168 Misc 2d 898; Martinez v County of Monroe, 50 AD3d 189; Cunningham v Cunningham, 206 NY 341; Reid v Reid, 72 Misc 214, 146 App Div 916.)

      Law Offices of Robert W. Dapelo, P.C., Patchogue (Robert W. Dapelo of counsel), and Marriage Law Foundation, Lehi, Utah (William C. Duncan of counsel), for Family Watch International, amicus curiae in the second above-entitled action.
    I. For purposes of marriage recognition, as in all other aspects of New York law, marriage is the union of a man and a woman. (Hernandez v Robles, 7 NY3d 338.) II. The Department of Civil Service does not have authority to redefine marriage for any purpose. (Hernandez v Robles, 7 NY3d 338; Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801; Matter of New York State Health Facilities Assn. v Axelrod, 77 NY2d 340; Matter of Campagna v Shaffer, 73 NY2d 237.) III. The Department of Civil Service memorandum redefining marriage for purposes of interstate recognition threatens important public policies. (Hernandez v Robles, 7 NY3d 338; Rapp v Carey, 44 NY2d 157; Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801; Bourquin v Cuomo, 85 NY2d 781.)

      Proskauer Rose LLP, New York City (Peter J.W. Sherwin and Kenneth E. Aldous of counsel), and Michael E. Getnick, Albany, for New York State Bar Association, amicus curiae in the second above-entitled action.
    I. New York’s common law of comity in the marriage context is long-standing and well established, dictates the result reached by the lower courts here, and should not be altered merely to achieve a different result. (Matter of Mott v Duncan Petroleum Trans., 51 NY2d 289; Matter of May,
      305 NY 486; Van Voorhis v Brintnall, 86 NY 18; Carpenter v Carpenter, 208 AD2d 882; Fernandes v Fernandes, 275 App Div 777; Matter of Peart, 277 App Div 61; Shea v Shea, 268 App Div 677, 294 NY 909; Hernandez v Robles, 7 NY3d 338; Earle v Earle, 141 App Div 611; People v Ezeonu, 155 Misc 2d 344.) II. New York law recognizes marriages of same-sex couples validly entered in other jurisdictions, and this Court’s decision in Hernandez v Robles (7 NY3d 338 [2006]) does not dictate a contrary result.

      James R. Sandner, Latham, Elizabeth R. Schuster, Wendy M. Star and Shawn T. Kelly for New York State United Teachers, amicus curiae in the first and second above-entitled actions.
    I. New York State law requires recognition of same-sex marriages validly performed in other jurisdictions. (Matter of May, 305 NY 486; Van Voorhis v Brintnall, 86 NY 18; Matter of Mott v Duncan Petroleum Trans., 51 NY2d 289; Shea v Shea, 294 NY 909; Carpenter v Carpenter, 208 AD2d 882; Fernandes v Fernandes, 275 App Div 777; Matter of Valente, 18 Misc 2d 701; Matter of Ziegler v Cassidy’s Sons, 220 NY 98; People v Ezeonu, 155 Misc 2d 344; Haviland v Halstead, 34 NY 643.) II. The Department of Civil Service properly recognized validly performed out-of-state same-sex marriages for the New York State Health Insurance Program enrollment. (Matter of Brooklyn Assembly Halls of Jehovah’s Witnesses, Inc. v Department of Envtl. Protection of City of N.Y., 11 NY3d 327; Samiento v World Yacht Inc., 10 NY3d 70; Syracuse Urban Renewal Agency v State of New York, 106 AD2d 23; Braschi v Stahl Assoc. Co., 74 NY2d 201; Matter of O’Brien v Spitzer, 7 NY3d 239.) III. Westchester County Executive Andrew J. Spano properly exercised his authority when he issued Executive Order No. 3 of 2006. (Slattery v City of New York, 179 Misc 2d 740, 266 AD2d 24, 94 NY2d 897; Matter of Incorporated Vil. of Mineola v International Bhd. of Teamsters, AFL-CIO, Local 808, 11 Misc 3d 844; Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326; Matter of Korn v Gulotta, 72 NY2d 363; Wein v City of New York, 80 Misc 2d 894, 47 AD2d 367; Betters v Knabel, 288 AD2d 872, 98 NY2d 659; Montecalvo v City of Utica, 170 Misc 2d 107, 233 AD2d 960, 89 NY2d 938; Matter of Bernstein v Feiner, 13 AD3d 519; Gaynor v Rockefeller, 15 NY2d 120; Mesivta of Forest Hills Inst. v City of New York, 58 NY2d 1014.)

      Michael A. Cardozo, Corporation Counsel, New York City (Susan Paulson and Leonard Koerner of counsel), for City of New York, amicus curiae in the first and second above-entitled actions.
    I. The recognition of validly performed out-of-state same-sex marriages is neither barred by statute nor in conflict with New York policy. (Matter of May, 305 NY 486; Van Voorhis v Brintnall, 86 NY 18; Martinez v County of Monroe, 50 AD3d 189, 10 NY3d 856; Moore v Hegeman, 92 NY 521; Thorp v Thorp, 90 NY 602; Matter of Mott v Duncan Petroleum Trans., 51 NY2d 289; Fernandes v Fernandes, 275 App Div 777; Matter of Peart, 277 App Div 61; Matter of Jacob, 86 NY2d 651; Braschi v Stahl Assoc. Co., 74 NY2d 201.) II. The Westchester County Executive and New York State Department of Civil Service acted within the scope of their authority in directing the recognition of same-sex marriages. (Slattery v City of New York, 179 Misc 2d 740, 266 AD2d 24, 94 NY2d 897, 95 NY2d 823.)

      McDermott Will & Emery LLP, New York City (Lisa A. Linsky, Kathryn C. Goyer and Rachel Hundley of counsel), and Carmelyn Malalis for New York City Bar Association, amicus curiae in the first and second above-entitled actions.
    I. The New York common law requires that a validly performed out-of-state marriage must be recognized as valid in New York. (Martinez v County of Monroe, 50 AD3d 189; Beth R. v Donna M., 19 Misc 3d 724; Van Voorhis v Brintnall, 86 NY 18; Matter of May, 305 NY 486; Matter of Mott v Duncan Petroleum Trans., 51 NY2d 289; Matter of Watts, 31 NY2d 491; Shea v Shea, 294 NY 909; Matter of Valente, 18 Misc 2d 701; Hilliard v Hilliard, 24 Misc 2d 861; Sung Hwan Co., Ltd. v Rite Aid Corp., 7 NY3d 78.) II. Recognition of out-of-state marriages of same-sex couples does not violate the doctrine of separation of powers. (Golden v Paterson, 23 Misc 3d 641; Clark v Cuomo, 66 NY2d 185; Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801; Matter of General Elec. Capital Corp. v New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249; Raffellini v State Farm Mut. Auto. Ins. Co., 9 NY3d 196; Matter of Citizens For An Orderly Energy Policy v Cuomo, 78 NY2d 398; Matter of Cooper, 187 AD2d 128; Matter of Valentine v American Airlines, 17 AD3d 38; Raum v Restaurant Assoc., 252 AD2d 369; Langan v St. Vincent’s Hosp. of N.Y., 25 AD3d 90.)

      Tobias Barrington Wolff, Philadelphia, Pennsylvania, for To-bias Barrington Wolff and others, amici curiae in the first and second above-entitled actions.
    This case is an inappropriate vehicle for reconsidering New York’s long embrace of the place-of-celebration rule. (Van Voorhis v Brintnall, 86 NY 18; Matter of May, 305 NY 486; Matter of Mott v Duncan Petroleum Trans., 51 NY2d 289; Matter of Farber v U. S. Trucking Corp., 26 NY2d 44; People v Onofre, 51 NY2d 476; Lawrence v Texas, 539 US 558; Moore v East Cleveland, 431 US 494; Muth v Frank, 412 F3d 808; Matter of Nakoneczna v Eisenberg, 60 AD2d 403; Matter of Brown v Brown, 51 Misc 2d 839.)

      Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York City (Roberta A. Kaplan of counsel), Arthur Eisenberg, Matthew Faiella and Rose Saxe for New York Civil Liberties Union and others, amici curiae in the first and second above-entitled actions.
    I. The marriage recognition rule applies to all marriages, including marriages of same-sex couples. (Romer v Evans, 517 US 620; Van Voorhis v Brintnall, 86 NY 18; Thorp v Thorp, 90 NY 602; Moore v Hegeman, 92 NY 521; Matter of May, 305 NY 486; Matter of Farber v U. S. Trucking Corp., 26 NY2d 44; Matter of Mott v Duncan Petroleum Trans., 51 NY2d 289; Fernandes v Fernandes, 275 App Div 777; Matter of Valente, 18 Misc 2d 701; Hilliard v Hilliard, 24 Misc 2d 861.) II. New York common law compels recognition of a same-sex couple’s valid out-of-state marriage. (Matter of May, 305 NY 486; Van Voorhis v Brintnall, 86 NY 18; Martinez v County of Monroe, 50 AD3d 189; Welsbach Elec. Corp. v MasTec N. Am., Inc., 7 NY3d 624; Hernandez v Robles, 7 NY3d 338; Braschi v Stahl Assoc. Co., 74 NY2d 201; Levin v Yeshiva Univ., 96 NY2d 484; Matter of Jacob, 86 NY2d 651; Matter of Donna S., 23 Misc 3d 338; Matter of Daniels, 2 Misc 3d 413.)
   OPINION OF THE COURT

Pigott, J.

Plaintiff taxpayers challenge two directives by executive and county officials that recognize out-of-state same-sex marriages for purposes of public employee health insurance coverage and other benefits. We conclude that plaintiffs’ actions were properly dismissed.

I.

Four states—Massachusetts, Connecticut, Iowa and Vermont—now issue marriage licenses to same-sex couples, without any residency requirement, as does Canada. As a consequence, many same-sex couples who are residents of New York State have traveled to those jurisdictions and married. In light of these developments, several state and county officials have recently issued general directives relating to the recognition of those out-of-state same-sex marriages. The present actions involve facial challenges to the legality of two of these directives, namely a Policy Memorandum issued by the Commissioner of the New York State Department of Civil Service and an Executive Order issued by the County Executive of the County of Westchester.

In June 2006, defendant Andrew J. Spano, Westchester County Executive, citing opinion letters of the Attorney General and the Comptroller, issued an Executive Order, with the following direction:

“WHEREAS, the County of Westchester has long provided health benefits to the qualifying domestic partners of its members; and
“WHEREAS, in September of 2002, the County of Westchester, in seeking to support all caring, committed and responsible family units, enacted its Domestic Partnership Registry Law, which allowed unmarried couples in committed relationships and who share common households to be able to register those relationships formally and to obtain a Certificate of Domestic Partnership, which serves as an independent verification of such partnership, and which may, in certain circumstances, be a condition
precedent to receipt of benefits by such partners;
“WHEREAS, Section 110.11 of the Laws of Westchester County places the responsibility to supervise, direct and control, subject to law, the administrative services and departments of the County upon the County Executive; . . .
“NOW, THEREFORE, I, ANDREW J. SPANO, County Executive of the County of Westchester, in light of the aforementioned and in accordance with my statutory duties, do hereby order and direct each and every department, board, agency, and commission of the County of Westchester under my jurisdiction to recognize same sex marriages lawfully entered into outside the State of New York in the same manner as they currently recognize opposite sex marriages for the purposes of extending and administering all rights and benefits belonging to these couples, to the maximum extent allowed by law.” (Westchester County Executive Order No. 3 of 2006.)

In September 2006, defendant Nancy G. Groenwegen, President of the New York State Civil Service Commission and Commissioner of the New York State Department of Civil Service, issued an Employee Benefits Division Policy Memorandum on “[Recognition of the spousal relationship in marriages between partners of the same sex conducted in jurisdictions where they may be legally performed,” effective May 1, 2007. The memorandum explained that the State had provided eligibility for employee benefits, including New York State Health Insurance Program benefits, to the domestic partners of state employees, including same-sex partners, since the mid-1990s. The coverage, while mandatory for the State itself, was discretionary for Participating Agencies (PAs) and Participating Employers (PEs). As a result, the State had been sued by an employee of a school district that had opted not to extend health insurance coverage to domestic partners (see Funderburke v New York State Dept. of Civ. Serv., 13 Misc 3d 284 [Sup Ct, Nassau County 2006], vacated 49 AD3d 809 [2d Dept 2008]). The Department of Civil Service then

“determined that for purposes of benefits eligibility under NYSHIP and all other benefit plans administered by its Employee Benefits Division, it would recognize as spouses partners in same sex marriages legally performed in other jurisdictions.
“Effective May 1, 2007, the Department of Civil Service recognizes, as spouses, the parties to any same sex marriage performed in jurisdictions where that marriage is legal. This policy applies to all health benefit plans provided under NYSHIiJ including the Empire Plan, the Student Employees Health Plan and HMOs, and all other benefits administered by the Employee Benefits Division, including The New York State Dental and Vision Plans, the M/C Life Insurance Program and NYPERL. Recognition of these spouses is mandatory for the State and all other entities participating in NYSHIfi including all PAs and PEs.” (Employee Benefits Division Policy Memorandum No. 129rl.)

II.

In September 2006, plaintiffs Margaret Godfrey, Rosemarie Jarosz and Joseph Rossini, residents of and taxpayers in Westchester County, commenced an action against County Executive Andrew J. Spano, alleging two causes of action. In their first cause of action, brought pursuant to General Municipal Law § 51, plaintiffs claim that, by issuing Executive Order No. 3, Spano illegally legislated in the areas of marriage and domestic relations in a manner inconsistent with the New York State Constitution and state law. In their second cause of action, plaintiffs allege that Spano violated New York State Constitution, article IX, § 2 (c) and Municipal Home Rule Law § 10 (1) (i). Plaintiffs seek a declaratory judgment that Executive Order No. 3 is “illegal, ultra vires, unconstitutional and otherwise null and void” and a permanent injunction preventing the implementation or effectuation of the Executive Order.

Michael Sabatino and Robert Voorheis, a same-sex couple who married in Canada, were permitted to intervene. Spano and the intervenors moved to dismiss plaintiffs’ complaint under CPLR 3211 (a) (7).

Supreme Court granted the motions to dismiss and declared that Executive Order No. 3 is “a valid exercise of the County Executive’s power, not an illegal act, and does not violate the State Constitution or the Municipal Home Rule Law” (15 Misc 3d 809, 818 [2007]). Plaintiffs appealed, and the Appellate Division, Second Department, unanimously affirmed (57 AD3d 941 [2008]).

In regard to the Godfrey plaintiffs’ first cause of action, the Appellate Division held that the Executive Order was not illegal, because it “requires that same-sex marriages be recognized to ‘the maximum extent allowed by law.’ By its terms, therefore, the Executive Order can never require recognition of such a marriage where it would be outside the law to do so.” (Id. at 942-943.) In regard to the second cause of action, the court held that plaintiffs had failed to demonstrate the required “personal interest in the dispute beyond that of any taxpayer” (id. at 943), so that they lacked standing.

In the other case before us, plaintiffs Kenneth J. Lewis, Denise A. Lewis, Robert C. Houck, Jr., and Elaine A. Houck, New York State taxpayers represented by the same Alliance Defense Fund representing the plaintiffs in the case against Spano, commenced an action against the New York State Department of Civil Service and its Commissioner, Nancy G. Groenwegen, in May 2007. The Lewis plaintiffs allege that defendants violated State Finance Law § 123-b (first cause of action), the separation of powers doctrine (second cause of action), New York State Constitution, article VII, § 8 (third cause of action), and State Administrative Procedure Act § 202 and New York State Constitution, article IV § 8 (fourth cause of action). Plaintiffs seek a declaratory judgment that defendants’ recognition of out-of-state same-sex marriages “is illegal, unconstitutional, ultra vi-res, void and constitutes an illegal expenditure of State funds” and a permanent injunction directing defendants to cease and desist from recognizing out-of-state same-sex marriages.

Peri Rainbow and Tamela Sloan, a same-sex couple who married in Canada, were permitted to intervene. Defendants and intervenors moved to dismiss plaintiffs’ complaint under CPLR 3211 (a) (7). Plaintiffs cross-moved for summary judgment.

Supreme Court denied the Lewis plaintiffs’ cross motion for summary judgment, searched the record and granted summary judgment to defendants, and declared that “[t]he policy memorandum issued by the New York State Department of Civil Service Employee Benefits Division in which it recognized, as spouses, the parties to any same sex marriage, performed in jurisdictions where such marriage is legal, is both lawful and within its authority” (NYLJ, Mar. 18, 2008, col 1, 2008 NY Misc LEXIS 1623, *7). The court relied on Martinez v County of Monroe (50 AD3d 189 [2008], Iv dismissed 10 NY3d 856 [2008]), a decision of the Appellate Division, Fourth Department, holding that a Canadian same-sex marriage was entitled to recognition in New York under the common-law marriage recognition rule.

The Appellate Division, Third Department, affirmed Supreme Court’s order in a divided opinion (60 AD3d 216 [2009]). The Appellate Division majority concluded that the common-law marriage recognition rule warranted dismissal of plaintiffs’ first cause of action alleging an unlawful disbursement of public funds (id. at 222-223). In regard to plaintiffs’ second cause of action, alleging violation of the separation of powers doctrine, the Appellate Division held that defendants’ “recognition of same-sex spouses falls squarely within the scope of the policy expressed in Civil Service Law §§ 161 and 164 to provide benefits to the spouses and dependent children of state employees” (id. at 223). The majority further rejected plaintiffs’ claim that the Department of Civil Service violated New York Constitution, article VII, § 8 (1) by using public funds to fund the private agendas of individuals and organizations seeking marriage equality in New York. “Inasmuch as the Department’s policy furthers a valid governmental purpose to benefit public employees, it cannot fairly be said that it is invalid as promoting a private undertaking” (id. at 224). Finally, the court held that “the determination to recognize same-sex marriages is not invalid for the Department’s failure to comply with the formal rule-making procedures of the State Administrative Procedure Act because the determination is an interpretative statement that is merely explanatory” (id.).

Two Justices wrote a separate concurring opinion. They would have affirmed Supreme Court’s order on a narrower ground, pointing out that “[t]he Legislature has vested the President of the Civil Service Commission with broad discretion in defining, for purposes of health insurance coverage for state employees, the terms spouse and dependent children” (id. at 224 [Lahtinen and Malone, Jr., JJ., concurring]).

We granted plaintiffs in both cases leave to appeal (12 NY3d 705 [2009]), and we now affirm both Appellate Division orders.

III.

The Godfrey plaintiffs have abandoned their second cause of action, containing allegations against Spano based on New York State Constitution, article IX, § 2 (c) and Municipal Home Rule Law § 10 (1) (i) (see brief of plaintiffs-appellants Margaret Godfrey et al., at 3). They rest their case on the claim, made pursuant to General Municipal Law § 51, that Spano illegally legislated in the areas of marriage and domestic relations.

A taxpayer suit under General Municipal Law § 51 “lies only when the acts complained of are fraudulent, or a waste of public property in the sense that they represent a use of public property or funds for entirely illegal purposes” (Mesivta of Forest Hills Inst, v City of New York, 58 NY2d 1014, 1016 [1983] [internal quotation marks omitted], quoting Kaskel v Impellitteri, 306 NY 73, 79 [1953]). Because plaintiffs allege no fraud, their action succeeds only if they state a claim for illegal dissipation of municipal funds. Plaintiffs’ amended complaint contains the allegation that Executive Order No. 3 “has resulted and will continue to result in the illegal disbursement of County funds” by providing County-funded benefits to couples in same-sex marriages. Although on a motion to dismiss plaintiffs’ allegations are presumed to be true and accorded every favorable inference, conclusory allegations—claims consisting of bare legal conclusions with no factual specificity—are insufficient to survive a motion to dismiss (Caniglia v Chicago Tribune-N.Y. News Syndicate, 204 AD2d 233, 233-234 [1st Dept 1994]). Here, plaintiffs have not identified any specific impact that the Executive Order has had on any public employee or private individual in Westchester County. Even assuming the allegations in the Godfrey complaint to be true, plaintiffs fail to specify a circumstance where taxpayer funds were expended as a result of the Executive Order that would not have been expended in the absence of the order. We find this lack of specificity fatal to plaintiffs’ cause of action.

In support of his motion to dismiss, Executive Spano submitted an affidavit of the Commissioner of Finance for Westchester County, dated November 17, 2006. The Commissioner stated that he could think of “no instance where the County has expended funds or extended benefits in connection with [the] Executive Order.” That statement is unsurprising in that Westchester County already insured same-sex domestic partners and dependents of county employees before the Executive Order was issued, requiring only that applicants for domestic partner coverage have lived with their domestic partners in a committed financially interdependent relationship for at least a year. Indeed the Executive Order begins by acknowledging that “the County of Westchester has long provided health benefits to the qualifying domestic partners of its members.” Although the affidavit does not in itself warrant dismissal under CPLR 3211, because it does not establish conclusively that plaintiffs have no cause of action (see Lawrence v Graubard Miller, 11 NY3d 588, 595 [2008]; Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]), it supports our judgment that the conclusory nature of plaintiffs’ allegations is more than a matter of inartful pleading.

We do not adopt the Second Department’s rationale for affirmance—that the Executive Order did not purport to change the law, because it included language directing recognition of same-sex couples “to the maximum extent allowed by law.” We find such language, which may appear either expansive or restrictive depending on the reader, ambiguous, and we would not encourage executive officials to try to insulate their orders from judicial review by this means. Nevertheless, because the Godfrey plaintiffs have failed to allege an unlawful expenditure of taxpayer funds, they have not stated a cognizable claim under General Municipal Law § 51. Consequently, we affirm the order of the Appellate Division, dismissing the Godfrey plaintiffs’ complaint.

IV

In the other matter, the Lewis plaintiffs have abandoned their third and fourth causes of action, containing claims based on New York State Constitution, article VII, § 8, State Administrative Procedure Act § 202, and New York State Constitution, article IV § 8 (see brief of plaintiffs-appellants Kenneth J. Lewis et al., at 3). The surviving claims invoke State Finance Law § 123-b and the separation of powers doctrine.

With respect to State Finance Law § 123-b, plaintiffs make conclusory allegations that defendants “are expending and will expend State funds and/or resources supplied from New York State tax revenue,” without claiming specific expenditures that would not otherwise have been incurred. While a taxpayer may bring suit under this statute to prevent the unlawful expenditure of state funds “whether or not such person is or may be affected or specially aggrieved” (State Finance Law § 123-b [1]), there must be some specific threat of an imminent expenditure. “[C]ourts have been inhospitable to plaintiffs who seek essentially to challenge nonfiscal activities by invoking the convenient statutory hook of section 123-b” (Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 813 [2003]). We note that the Department of Civil Service has offered New York State Health Insurance Program benefits to domestic partners since the mid-1990s. The State Finance Law claim of the Lewis plaintiffs fails to state a cause of action for the same reason that the General Municipal Law § 51 claim of the Godfrey plaintiffs fails.

Plaintiffs’ remaining cause of action, which alludes to the separation of powers doctrine, boils down to the claim that defendants acted “inconsistently with the Legislature’s pronouncements on spousal benefits.” Specifically, plaintiffs allege that defendants acted in violation of Civil Service Law § 164. The statute itself refutes plaintiffs’ claim.

Under Civil Service Law § 161 (1), the President of the Civil Service Commission is “authorized and directed to establish a health insurance plan for state officers and employees and their dependents.” Civil Service Law § 164 (1) provides that every state employee “shall be entitled to have his spouse and dependent children, as defined by the regulations of the president, included in the coverage upon agreeing to pay his contribution, if any, to the cost of such coverage for such dependents” (emphasis added). The statute thus expressly gives the President of the Civil Service Commission the authority to define “spouse.” Moreover, the statute does not restrict the President’s provision of health insurance to spouses and dependent children. The language is of entitlement, not restriction.

Furthermore, the legislative history supports the view that the President of the Civil Service Commission was deliberately given broad discretion to define who will qualify for coverage. Governor Harriman, commenting on the 1956 legislation that created the New York State Health Insurance Program, noted that “[i]t would not be practical to specify in legislation the precise type of coverage to be provided under a comprehensive health insurance plan. The law must make it possible for the best plan to be worked out in consultation with representatives of the employees affected.” (Governor’s Message to the Legislature, Feb. 16, 1956, 1956 NY Legis Ann, at 419.) The Director of the Division of Personnel Services of the Department of Civil Service at that time, Edward D. Meacham, testified before the Joint Legislative Committee on Health Insurance Plans that

“[d]etailed requirements as to eligibility for participation in the plan both as to employees and retirees are difficult to spell out in legislation. Such requirements might well be left to the determination of the administering agency within the general framework of the legislature. . . .
“The extent to which the plan should go in providing such dependency benefits should be left for determination in negotiating the contract. There are circumstances under which it would be desirable to provide coverage for dependents other than the employee’s spouse and dependent children . . . [T]he advantages and disadvantages would have to be carefully weighed by those participating in the plan before a final determination is met.” (Testimony of Edward D. Meacham, Feb. 22, 1956, Before the Joint Legislative Committee on Health Insurance Plans, 1956 NY Legis Doc No. 64, at 73-74.)

It is clear, therefore, both from the plain language of the statute and from the legislative history, that the Legislature intended to give the Department of Civil Service—guided of course by the collective bargaining process—complete discretion to determine the limits of dependent coverage, provided that, at a minimum, spouses and dependent children were covered. There is no conflict between the Civil Service Law and the challenged Policy Memorandum issued by the Commissioner of the New York State Department of Civil Service. In sum, as the concurring Justices on the Third Department noted,

“[t]he practical effect of the determination here is to give an out-of-state document formalizing a same-sex relationship the same weight as the affidavit required to receive such benefits as a domestic partner, which is a narrow accommodation to state employees in an area where the Legislature has specifically accorded the Commission broad discretion” (60 AD3d at 224-225 [Lahtinen and Malone, Jr., JJ., concurring]).

We thus affirm the order of the Appellate Division, dismissing the Lewis complaint.

V

Because we can decide the cases before us on narrower grounds, we find it unnecessary to reach defendants’ argument that New York’s common-law marriage recognition rule is a proper basis for the challenged recognition of out-of-state same-sex marriages. We end by repeating what we said in Hernandez v Robles, expressing our hope that the Legislature will address this controversy; that it “will listen and decide as wisely as it can; and that those unhappy with the result—as many undoubtedly will be—will respect it as people in a democratic state should respect choices democratically made” (7 NY3d at 366).

Accordingly, in each case the order of the Appellate Division should be affirmed with costs.

Ciparick, J. (concurring).

Although I agree with the result reached by the majority, I write separately to set forth my view that the orders under review should be affirmed on the ground that same-sex marriages, valid where performed, are entitled to full legal recognition in New York under our State’s longstanding marriage recognition rule. The issue is squarely presented in these appeals and plaintiffs’ standing allegations are sufficient to allow us to reach it. The effect of the majority’s rationale in affirming these orders will be to permit an unworkable pattern of conflicting executive and administrative directives promulgated pursuant to the individual discretion of each agency head. We ought to avoid the confusion that would arise from a same-sex couple being considered legally married by one agency for one purpose but not married by another agency for a different purpose.

As the majority recognizes, we determined in Hernandez v Robles (7 NY3d 338 [2006]) that, currently, under the Domestic Relations Law, same-sex marriages may not lawfully be entered into in New York, and our State’s Constitution does not compel the recognition of same-sex marriages performed within the state. However, as the majority also notes, Hernandez did not address the issue whether New York law recognizes same-sex marriages validly performed in other jurisdictions. Several jurisdictions that border our state currently perform or will soon perform same-sex marriages, including Massachusetts (see Goodridge v Department of Pub. Health, 440 Mass 309, 798 NE2d 941 [2003]; Mass Acts 2008, ch 216, § 1 [repealing statute that voided marriages between nonresidents contrary to the law of the state of residence]), Connecticut (see Kerrigan v Commissioner of Pub. Health, 289 Conn 135, 957 A2d 407 [2008]), Vermont (see 15 Vt Stat Ann § 8 [“(m)arriage is the legally recognized union of two people”]) and Canada (see Civil Marriage Act, SC 2005, ch 33).

Principles of comity have given rise to New York’s well-settled marriage recognition rule, which “recognizes as valid a marriage considered valid in the place where celebrated” (Van Voorhis v Brintnall, 86 NY 18, 25 [1881]; see also Matter of May, 305 NY 486, 490 [1953]). Indeed, through our marriage recognition rule, we have recognized out-of-state marriages, valid where contracted, despite that the parties’ intent in entering the marital contract elsewhere was to evade New York laws proscribing their marriage from being performed here (see Thorp v Thorp, 90 NY 602, 605-606 [1882]; Van Voorhis v Brintnall, 86 NY at 32-33; see also Fisher v Fisher, 250 NY 313, 318 [1929]; Shea v Shea, 268 App Div 677, 687-688 [2d Dept 1945, Johnston, J., dissenting in part], revd on dissenting op of Johnston, J., 294 NY 909 [1945] [recognizing as valid an Illinois common-law marriage]). For example, in Matter of Mott v Duncan Petroleum Trans. (51 NY2d 289 [1980]), we recognized and gave effect to a common-law marriage contracted in the state of Georgia, despite the fact that New York does not recognize common-law marriages (id. at 291; Domestic Relations Law § 11). Although the spouses in Mott were domiciliaries of New York, they had vacationed for weeks at a time in Georgia, representing themselves there as husband and wife, sufficient to create a common-law marriage in that state (51 NY2d at 291-294). Similarly, in Matter of May, we recognized as valid a marriage performed in Rhode Island between a man and his niece, both residents of New York (see 305 NY at 493). Although New York law prohibits such a marriage as incestuous (Domestic Relations Law § 5), Rhode Island law at the time permitted marriage among blood relatives “ ‘solemnized among the Jews, within the degrees of affinity or consanguinity allowed by their religion’ ” (id. at 492, quoting RI Gen Laws, tit XXIV ch 243, §4).

Two exceptions to the marriage recognition rule have evolved (see Matter of May, 305 NY at 490). The first excepts from recognition out-of-state marriages where a New York statute clearly expresses “the Legislature’s intent to regulate within this State marriages of its domiciliaries solemnized abroad” (id. 493). In other words, for this “positive law” exception to apply, a statute must expressly convey a legislative intent to void a marriage legally entered into in another jurisdiction (see Van Voorhis, 86 NY at 34-35).

Our Legislature has not expressly prohibited the recognition of same-sex marriages performed in other jurisdictions. Although the federal Defense of Marriage Act (DOMA) authorizes the states to pass so-called “mini-DOMAs”—and many states have done so (see e.g. Ga Code Ann § 19-3-3.1 [b] [declaring void” (a)ny marriage entered into by persons of the same sex pursuant to a marriage license issued by another state or foreign jurisdiction”])—New York has not, and the Legislature has enacted no other law expressly forbidding the recognition of same-sex marriages performed in other jurisdictions or expressing any legislative intent that such marriages be voided. Thus, the positive law exception to recognizing out-of-state same-sex marriages does not apply.

The second exception, which is narrowly applied and is sometimes called the “natural law” exception to the marriage recognition rule, denies recognition to out-of-state marriages abhorrent to New York public policy. The natural law exception has been invoked exceedingly rarely, only in cases involving incest or polygamy (see Van Voorhis, 86 NY at 26, citing Wightman v Wightman, 4 Johns Ch 343 [Ch Ct 1820] and Hutchins v Kimmell, 31 Mich 126 [1875]). We noted, in the closely related context of foreign divorce decrees, that “in a world of different people, [n]ations and diverse views and policies,” the public policy exception to the appropriate exercise of comity is applied rarely (Matter of Gotlib v Ratsutsky, 83 NY2d 696, 700 [1994]), and the application of the exception must be predicated upon a demonstration of “proximately related public policies fundamentally offensive and inimical to those of this State” (id.). “This high burden springs from an ordered sense of respect and tolerance for the adjudications of foreign Nations, [and the] parallel[ respect] . . . commanded among the States by the Full Faith and Credit Clause of the United States Constitution” (id., citing US Const, art IV¡ § l). Notably, for example, in Matter of May, where we recognized as valid the marriage performed in Rhode Island between a man and his niece that could not have lawfully been entered into in New York given that, by statute, it was deemed incestuous, we nevertheless explained that the “marriage, solemnized, as it was . . . was not offensive to the public sense of morality to a degree regarded generally with abhorrence and thus was not within the inhibitions of natural law” (305 NY at 493). Accordingly, the marriage did not fall within the natural law exception to the marriage recognition rule.

The “natural law” or public policy exception to the marriage recognition rule is inapplicable to same-sex marriages solemnized in our sister states or other foreign jurisdictions. The public policy of the State is deduced from the constitutional, statutory and decisional law, as well as from “prevailing social and moral attitudes of the community” (Intercontinental Hotels Corp. [Puerto Rico] v Golden, 15 NY2d 9, 14 [1964]). Today, the laws of New York protect committed same-sex couples in a myriad of ways. For example, Executive Law § 354-b permits same-sex domestic partners of military members killed in combat to receive supplemental burial allowances; Public Health Law § 2805-q (1) provides that “[n]o domestic partner shall be denied any rights of visitation of his or her domestic partner when such rights are accorded to spouses and next-of-kin at any hospital, nursing home or health care facility”; and Public Health Law § 4201 (1) (c) and (2) (a) (ii-a) permits a same-sex domestic partner to elect how to dispose of his or her partner’s remains. Many counties and municipalities have likewise adopted ordinances and resolutions extending recognition to same-sex couples and granting benefits accordingly.

In addition to statutory law, New York decisional law recognizes same-sex life partners as family members, such that the surviving partner can challenge an eviction proceeding {see Braschi v Stahl Assoc. Co., 74 NY2d 201, 211-214 [1989]). We have also permitted same-sex partners to challenge their exclusion from housing set aside for married couples on disparate impact grounds (see Levin v Yeshiva Univ., 96 NY2d 484, 494-495 [2001]). Moreover, the same-sex partner of a biological parent can, through adoption, become a parent of the child (see Matter of Jacob, 86 NY2d 651, 669 [1995]). These judicial decisions and statutes express a public policy of acceptance that is simply not compatible with plaintiffs’ argument that the recognition in our state of same-sex marriages validly performed elsewhere is contrary to New York public policy.

In these related matters, the Westchester County Executive ordered that all county employees, boards and agencies should “recognize same sex marriages lawfully entered into outside the State of New York . . . for the purposes of extending and administering all rights and benefits belonging to these couples, to the maximum extent allowed by law.” (Westchester County Executive Order No. 3 of 2006.) The Department of Civil Service issued a policy memorandum announcing that the Department would recognize, as spouses, the parties to any same-sex marriage performed in jurisdictions where such marriage is legal. The challenges to these actions fall squarely within the purview of the marriage recognition rule and, because neither of the exceptions to that rule apply, I concur in the affirmance of the Appellate Division orders.

Judges Graffeo, Read and Smith concur with Judge Pigott; Judge Ciparick concurs in result in a separate opinion in which Chief Judge Lippman and Judge Jones concur.

In each case: Order affirmed, with costs.

      . New Hampshire will begin issuing marriage licenses to same-sex couples effective January 1, 2010. Internationally, in addition to Canada, same-sex couples may legally marry in The Netherlands, Belgium, Spain, South Africa, Norway and Sweden.

      . In Hernandez v Robles (7 NY3d 338 [2006]), we held that New York’s Domestic Relations Law restricts marriage to opposite-sex couples and that this limitation does not violate the New York State Constitution’s Equal Protection and Due Process Clauses. We concluded that our Constitution does not require that marriage licenses be granted to same-sex couples, and we expressed our hope that the participants in the controversy over same-sex marriage would address their arguments to our Legislature, and that the Legislature would decide the question whether same-sex couples should be permitted to marry in New York (see 7 NY3d at 366). We did not address the question of recognition of out-of-state same-sex marriages.

      . The Solicitor General of New York issued an informal opinion letter in March 2004, on behalf of the Attorney General, concluding that, although New York’s Domestic Relations Law does not authorize same-sex marriages, “New York law presumptively requires that parties to such unions must be treated as spouses for purposes of New York law” (2004 Ops Atty Gen No. 2004-1, at 16 [Mar. 3, 2004]). The opinion relied on New York’s common-law marriage recognition rule as the basis for this conclusion. The Office of the State Comptroller issued a similar opinion letter in October 2004 indicating that “[t]he Retirement System will recognize a same-sex Canadian marriage in the same manner as an opposite-sex New York marriage, under the principle of comity.”

      . Subsequently, the State Comptroller was permitted to intervene.

      . The Department of Civil Service is obliged to implement terms of coverage reached in a collective bargaining agreement with a public employee union (Civil Service Law § 161-a [1]).

      . Indeed, as the state respondents note, a bill to adopt a mini-DOMA has been introduced at every legislative session since 1998, but not one has been reported out of committee. Bills introduced to authorize the performance of same-sex marriages, on the other hand, have twice passed in the Assembly (see 2009 NY Assembly Bill A7732 [delivered to Senate May 12, 2009], 2007 NY Assembly Bill A8590 [delivered to Senate June 19, 2007]).

      . The federal Defense of Marriage Act provides, in effect, that the Full Faith and Credit Clause will not operate to require recognition of same-sex marriages performed in other states (see 28 USC § 1738C). DOMA does not in any way diminish the principles of comity or the basis therefor.

      . The time period most relevant to determining this State’s public policy is the present; our evolving standards of acceptance, rather than prior concepts of morality, are of the greatest concern (see e.g. Intercontinental Hotels Corp. [Puerto Rico] v Golden, 15 NY2d 9, 15 [1964] [examining the “trend in New York State” which demonstrated an increasing “acceptance of licensed gambling transactions as a morally acceptable activity”]).


source: Caselaw Access Project

author: Jones, J. Ciparick, J. (dissenting).

license: Public Domain

text:
    [920 NE2d 350, 892 NYS2d 294]
    James D. Lee, Respondent, v Astoria Generating Company, L.P., et al., Appellants/Third-Party Plaintiffs-Appellants. Elliott Turbomachinery Co., Inc., et al., Third-Party Defendants-Appellants.
    Argued October 20, 2009;
    decided November 23, 2009

      POINTS OF COUNSEL

      Mauro Goldberg & Lilling LLP, Great Neck (Barbara D. Goldberg and Deborah F. Peters of counsel), and Robin Harris King & Fodera for appellants/third-party plaintiffs-appellants.
    I. The First Department misapplied the Supreme Court’s definition of “vessel” in Stewart v Dutra Constr. Co. (543 US 481 [2005]). (Board of Commrs. of Orleans Levee Dist. v M/V Belle of Orleans, 535 F3d 1299; Pavone v Mississippi Riverboat Amusement Corp., 52 F3d 560; Tagliere v Hurrah’s Ill. Corp., 445 F3d 1012; De La Rosa v St. Charles Gaming Co., 474 F3d 185; Holmes v Atlantic Sounding Co., Inc., 437 F3d 441; Uzdavines v Weeks Mar., Inc., 418 F3d 138; Gravatt v City of New York, 53 F Supp 2d 388, 73 F Supp 2d 438, 226 F3d 108, 532 US 957; Calcaterra v City of New York, 45 AD3d 270; Emanuel v Sheridan Transp. Corp., 10 AD3d 46; Cain v Transocean Offshore USA, Inc., 518 F3d 295.) II. The Longshore and Harbor Workers’ Compensation Act expressly preempts state court claims against vessel owners based on vicarious liability. (City of New York v Job-Lot Pushcart, 88 NY2d 163; Scindia Steam Nav. Co. v De los Santos, 451 US 156; Northeast Marine Terminal Co. v Caputo, 432 US 249; FMC Corp. v Holliday, 498 US 52; Cammon v City of New York, 95 NY2d 583; Tibak v City of New York, 154 AD2d 313, 75 NY2d 705; Executive Jet Aviation, Inc. v Cleveland, 409 US 249; Tompkins v Port of N.Y. Auth., 217 AD2d 269; Rigopoulos v State of New York, 236 AD2d 459; Eriksen v Long Is. Light. Co., 236 AD2d 439.) III. The First Department erred in granting plaintiff partial summary judgment on his Labor Law § 240 (1) claim and in failing to dismiss his Labor Law § 241 (6) claim. (Stewart v Dutra Constr. Co., 543 US 481; Joblon v Solow, 91 NY2d 457; Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878; Manente v Ropost, Inc., 136 AD2d 681; Edwards v Twenty-Four Twenty-Six Main St. Assoc., 195 AD2d 592; Jock v Fien, 80 NY2d 965; Nagel v D & R Realty Corp., 99 NY2d 98; Allen v Cloutier Constr. Corp., 44 NY2d 290; Walton v Devi Corp., 215 AD2d 60, 87 NY2d 809; Rhodes-Evans v 111 Chelsea LLC, 44 AD3d 430.)

      Hofmann & Associates, New York City (Paul T. Hofmann of counsel), for respondent.
    I. The structure worked on is only a component of a land-based electric distribution system situated on a floating platform and no vessel repair was being performed; thus, neither maritime law nor 33 USC § 905 (b) apply to plaintiff’s claims. (Grant Smith-Porter Ship Co. v Rohde, 257 US 469; Palanquet v Weeks Mar., Inc., 333 F Supp 2d 58; McAllister v G & S Invs., 358 F Supp 2d 146; Cammon v City of New York, 260 AD2d 70, 95 NY2d 583; Olsen v James Miller Mar. Serv., Inc., 16 AD3d 169.) II. The floating platform was not “a vessel in navigation.” Neither is there a maritime “situs” involved here; thus, 33 USC § 905 (b) and maritime jurisdiction do not apply to the claim. (Jerome B. Grubart, Inc. v Great Lakes Dredge & Dock Co., 513 US 527; De La Rosa v St. Charles

      Gaming Co., 474 F3d 185; Victory Carriers, Inc. v Law, 404 US 202; Watson v Indiana Gaming Co., LP, 337 F Supp 2d 951; Sisson v Ruby, 4Q1 US 358; Stewart v Dutra Constr. Co., 543 US 481; Evansville & Bowling Green Packet Co. v Chero Cola Bottling Co., 271 US 19; Pavone v Mississippi Riverboat Amusement Corp., 52 F3d 560; Cope v Vallette Dry Dock Co., 119 US 625; Kathriner v UNISEA, Inc., 975 F2d 657.) III. There would be no maritime jurisdiction here as the injury-causing event shows no connection to a maritime activity. (Jerome B. Grubart, Inc. v Great Lakes Dredge & Dock Co., 513 US 527; Sisson v Ruby, 497 US 358; H20 Houseboat Vacations, Inc. v Hernandez, 103 F3d 914; Foster v Peddicord, 826 F2d 1370, 484 US 1027; Executive Jet Aviation, Inc. v Cleveland, 409 US 249; Texaco Exploration & Prod., Inc. v AmClyde Engineered Prods. Co., Inc., 448 F3d 760; Palanquet v Weeks Mar., Inc., 333 F Supp 2d 58; King v President Riverboat Casino-Mississippi, Inc., 894 F Supp 1008; Emanuel v Sheridan Transp. Corp., 10 AD3d 46.) IV As no maritime jurisdiction exists, state law is applicable. (Ducrepont v Baton Rouge Mar. Enters., Inc., 877 F2d 393; Richendollar v Diamond M Drilling Co., Inc., 819 F2d 124; De La Rosa v St. Charles Gaming Co., Inc., 474 F3d 185; Howard v Southern Ill. Riverboat Casino Cruises, Inc., 364 F3d 854; Heim v City of New York, 442 F Supp 35; Parker v South La. Contrs., Inc., 537 F2d 113; Florida Fuels, Inc. v Citgo Petroleum Corp., 6 F3d 330; Wiper v Great Lakes Eng’g Works, 340 F2d 727, 382 US 812; Jerome B. Grubart, Inc. v Great Lakes Dredge & Dock Co., 513 US 527.) V. Assuming the Court has maritime jurisdiction with respect to Astoria Generating Company, L.P. and the Orion parties, James Lee’s state law claims are not preempted by maritime law. (Western Fuel Co. v Garcia, 257 US 233; Grant Smith-Porter Ship Co. v Rohde, 257 US 469; Parker v Motor Boat Sales, Inc., 314 US 244; Davis v Department of Labor & Industries of Wash., 317 US 249; Calbeck v Travelers Ins. Co., 370 US 114; Yamaha Motor Corp., US A. v Calhoun, 516 US 199; Jerome B. Grubart, Inc. v Great Lakes Dredge & Dock Co., 513 US 527; Cammon v City of New York, 95 NY2d 583; Casino Ventures v Stewart, 183 F3d 307; California v ARC America Corp., 490 US 93.) VI. Even if the Labor Law § 240 claim may be subject to preemption, there is no dispute that the Labor Law § 241 (6) claims survive if maritime law applies. (Songui v City of New York, 2 AD3d 706; Cammon v City of New York, 95 NY2d 583; Eriksen v Long Is. Light. Co., 236 AD2d 439; Pope & Talbot, Inc. v Hawn, 346 US 406; Olsen v James Miller Mar. Serv., Inc., 16 AD3d 169.) VII. 33 USC § 905 (b) is inapplicable because the claim is against the landowner and enterprise operator. (Emanuel v Sheridan Transp. Corp., 10 AD3d 46; Wilburn Boat Co. v Fireman’s Fund Ins. Co., 348 US 310; Cammon v City of New York, 95 NY2d 583; North Riv. Ins. Co. v Alpine Dev. Corp., 33 AD2d 912; Tully v Roosevelt Props., 34 AD2d 786; Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343; Kelly v Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 1; Zimmer v Chemung County Performing Arts, 65 NY2d 513; Haimes v New York Tel. Co., 46 NY2d 132; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494.) VIII. Under a Scindia analysis, liability exists in this matter, assuming 33 USC § 905 (b) is applicable. (Scindia Steam Nav. Co. v De los Santos, 451 US 156; O’Hara v Weeks Mar., Inc., 294 F3d 55; Keller v United States, 38 F3d 16; England v Reinauer Transp. Cos., L.P., 194 F3d 265; Emanuel v Sheridan Transp. Corp., 10 AD3d 46.) IX. Plaintiff was performing construction at the time of his injury. (Rico-Castro v Do & Co N.Y. Catering, Inc., 60 AD3d 749; Joblon v Solow, 91 NY2d 457; Kinsler v Lu-Four Assoc., 215 AD2d 631; Walton v Devi Corp., 215 AD2d 60; Brogan v International Bus. Machs. Corp., 157 AD2d 76; Salzler v New York Tel. Co., 192 AD2d 1104; Lozo v Crown Zellerbach Corp., 142 AD2d 949.) X. It was within the court’s discretion to search the record and grant plaintiff summary judgment.

      Lester Schwab Katz & Dwyer, LLP, New York City (Curt J. Schiner, John Sandercock and Steven B. Pry stow sky of counsel), for third-party defendants-appellants.
    I. In finding that Gowanus Bay No. 1 is not a “vessel” within the meaning of the Long-shore and Harbor Workers’ Compensation Act, the Appellate Division majority ignored key facts and misapplied controlling federal authority. (Stewart v Dutra Constr. Co., 543 US 481; Kathriner v UNISEA, Inc., 975 F2d 657; Pavone v Mississippi Riverboat Amusement Corp., 52 F3d 560; Uzdavines v Weeks Mar., Inc., 418 F3d 138; Tonnesen v Yonkers Contr. Co., Inc., 82 F3d 30; McCarthy v Bark Peking, 716 F2d 130; Board of Commrs. of Orleans Levee Dist. v M/V Belle of Orleans, 535 F3d 1299; Tagliere v Harrah’s Ill. Corp., 445 F3d 1012; Matter of Consolidated Edison Co. of N.Y. v City of New York, 44 NY2d 536; De La Rosa v St. Charles Gaming Co., 474 F3d 185.) II. Labor Law § 240 (1) is preempted by general maritime law as well as the Longshore and Harbor Workers’ Compensation Act because it conflicts with characteristic features of maritime law and defendants are not landowners. (Panama R. Co. v Johnson, 264 US 375; Wilburn Boat Co. v Fireman’s Fund Ins. Co., 348 US 310; Robins Dry Dock & Repair Co. v Dahl, 266 US 449; Grant Smith-Porter Ship Co. v Rohde, 257 US 469; Rocovich v

      Consolidated Edison Co., 78 NY2d 509; Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343; American Dredging Co. v Miller, 510 US 443; Southern Pacific Co. v Jensen, 244 US 205; Cammon v City of New York, 95 NY2d 583; Pope & Talbot, Inc. v Hawn, 346 US 406.) III. The Appellate Division erred in searching the record and granting plaintiff partial summary judgment on liability under Labor Law § 240 (1). (Rocovich v Consolidated Edison Co., 78 NY2d 509; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280; Gordon v Eastern Ry. Supply, 82 NY2d 555; Bland v Manocherian, 66 NY2d 452; Jastrzebski v North Shore School Dist., 223 AD2d 677; Romano v Hotel Carlyle Owners Corp., 226 AD2d 441; Grullon v City of New York, 297 AD2d 261; Dunham v Hilco Constr. Co., 89 NY2d 425; Montgomery v Federal Express Corp., 4 NY3d 805; Robinson v East Med. Ctr., LP, 6 NY3d 550.) IV The Appellate Division should not have reinstated plaintiff’s Labor Law § 241 (6) claim. (Jock v Fien, 80 NY2d 965; Esposito v New York City Indus. Dev. Agency, 1 NY3d 526; Nagel v D & R Realty Corp., 99 NY2d 98; Buckley v Columbia Grammar & Preparatory, 44 AD3d 263; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Gillman v Columbia University, 18 Misc 3d 1131[A], 2008 NY Slip Op 50256[U]; Plass v Solotoff, 5 AD3d 365.)
   OPINION OF THE COURT

Jones, J.

In this appeal, we are called upon to determine whether a barge containing an electricity generating turbine is a vessel under the Longshore and Harbor Workers’ Compensation Act (LHWCA) (33 USC § 905 [b]) and whether that provision preempts New York State Labor Law § 240 (1) and § 241 (6) claims. We hold that the barge is a vessel and plaintiffs Labor Law § 240 (1) and § 241 (6) claims are preempted.

The Gowanus Gas Turbine electric generation facility in Brooklyn is a facility owned and operated by defendants Astoria Generating Company, L.E, Orion Power New York GP, Inc., Orion Power New York, L.P. and Orion Power New York UP, LLC (Astoria/Orion). The site, located on navigable waters in the Gowanus Canal, is comprised, in part, of four barges that are each 80 feet wide by 200 feet long that collectively house eight individual gas turbine generating units. While stationed, the barges are afloat in the bay and connected to a power grid. Periodically, approximately once a decade, the barges are moved to dry dock for maintenance. They are also capable of being moved for the purpose of providing electric power at other locations. Two of the barges had been so moved on at least one occasion.

In 2000, Astoria/Orion hired third-party defendants Elliott Turbomachinery Co., Inc. and Elliott Company (Elliott), a company based in Pennsylvania, to perform an overhaul of the turbines at the Gowanus facility. This involved disassembling the entire turbine, shipping parts of it back to Elliott’s shop in Pennsylvania for restoration or replacement, and returning it to the site for Elliott’s millwrights to reassemble. In 2001, plaintiff, a millwright employed by Elliott, injured his back while performing work on a turbine on barge No. 1 at the facility. According to plaintiff, he was ordered by his supervisor to enter the turbine’s exhaust well through a hatch to weld some fixtures inside. To reach the location of the repair, plaintiff used a ladder to access the exhaust well and entered the hatch. From there, he was to climb down the base of the exhaust well, but his feet slipped from under him and he fell eight feet to the base of the exhaust well, injuring his back.

After the accident, plaintiff claimed and was awarded benefits under the LHWCA, which “provides workers’ compensation to Zand-based maritime employees” (Stewart v Dutra Constr. Co., 543 US 481, 488 [2005]). He also commenced this state court action against Astoria/Orion, asserting Labor Law §§ 200, 240 (1) and § 241 (6) claims and common-law negligence claims. Astoria/Orion subsequently filed a third-party complaint against Elliott seeking indemnification.

Elliott moved for summary judgment dismissing the complaint and third-party complaint, arguing, among other things, that 33 USC § 905 (a) precludes lawsuits against it as an employer of the injured worker and that plaintiff’s state claims were preempted by section 905 (b) and federal maritime law. The barge owners cross-moved for summary judgment, also arguing that the plaintiff’s claims were preempted. In opposition, plaintiff argued that the claims were not preempted because (1) the barge did not constitute a vessel under section 905 (b) and (2) maritime jurisdiction did not apply to his claims against the barge owners.

Supreme Court granted summary judgment dismissing the complaint and third-party complaint (2007 NY Slip Op 34371[U]). It concluded, among other things, that section 905 of the LHWCA preempted the Labor Law § 240 (1) and § 241 (6) claims. The court adopted the Department of Labor’s determination that plaintiff is a covered employee under the LHWCA and concluded the barge is a vessel under recent federal case law. It also dismissed plaintiffs Labor Law § 200 and common-law negligence claims.

The Appellate Division “reversed” the Supreme Court order, reinstated plaintiffs Labor Law § 240 (1) and § 241 (6) claims and granted summary judgment as to the Labor Law § 240 (1) claim in plaintiffs favor. It held that the Labor Law claims are not precluded by the LHWCA because the barge is not a vessel. It further stated, “even if the barge were a vessel, federal maritime jurisdiction would not preempt these claims” (55 AD3d 124, 126 [1st Dept 2008]). The Appellate Division granted Astoria/Orion and Elliott leave to appeal and certified the following question to this Court: “Was the order of this Court, which reversed the order of Supreme Court, properly made?” We now reverse and answer the certified question in the negative.

The LHWCA provides compensation to workers injured on navigable waters of the United States in the course of their employment (Director, Office of Workers’ Compensation Programs v Perini North River Associates, 459 US 297, 325 [1983]; see Chandris, Inc. v Latsis, 515 US 347, 360 [1995]). It operates as a no-fault workers’ compensation scheme for eligible workers and precludes recovery of damages against their employer (33 USC § 905 [a]). The LHWCA also permits an injured employee to recover damages against a third person other than his or her employer (33 USC § 933 [a]). Section 905 (b) of the LHWCA, consistent with section 933 (a), permits an injured person covered under the Act to bring an action in negligence against a vessel, but provides that such remedy “shall be exclusive of all other remedies against the vessel except remedies available under this chapter.” Contrary to the dissent’s position, one need not conclude that plaintiff is entitled to assert a maritime tort claim to invoke section 905 (b) where the worker was injured on navigable waters (see e.g. Stewart, 543 US 481 [2005] [discussing the application of section 905 (b) without any maritime tort inquiry]). Section 905 (b) of the LH-WCA applies to the “injury to a person covered under this chapter” where the liability of a vessel is at issue. Thus, because the LHWCA covers plaintiff’s injury upon navigable waters, whether section 905 (b) applies in this case hinges upon whether the structure upon which plaintiff was injured is a vessel. Although the LHWCA does not define “vessel,” the United States Supreme Court has provided detailed guidance concerning the definition and characteristics of a vessel, holding that the statutory definition of the term in 1 USC § 3 is applicable in this context.

A “ ‘vessel’ includes every description of water-craft or other artificial contrivance used, or capable of being used, as a means of transportation on water” (Stewart v Dutra Constr. Co., 543 US 481, 489 [2005], quoting 1 USC § 3). Structures temporarily stationed in a particular location maintain their status as vessels. However, floating structures that are “not practically capable of being used as a means of transportation” do not qualify as vessels {id. at 493 [internal quotation marks and citation omitted]). Such floating structures (non-vessels) are permanently fixed or moored “to shore or resting on the ocean floor” {id. at 493-494).

Here, the barge, located on navigable waters in Gowanus Bay, is a vessel within the LHWCA. The barges owned by Astoria/Orion have been tugged on water approximately once a decade to a maintenance station and, at least once, to provide energy to another part of New York City in an emergency. Thus, the barge at issue is practically capable of being used as a means of transportation on water. Although the barge is stationed at the Gowanus facility, because it is not permanently anchored or moored, it has not lost its status as a vessel. Accordingly, the barge is a vessel under section 905 (b).

The remaining issue is whether section 905 (b) preempts plaintiffs Labor Law § 240 (1) and § 241 (6) claims. It is well recognized that the Supremacy Clause (US Const, art VI, cl 2) “ ‘may entail pre-emption of state law either by express provision, by implication, or by a conflict between federal and state law’ ” (Balbuena v IDR Realty LLC, 6 NY3d 338, 356 [2006], quoting New York State Conference of Blue Cross & Blue Shield Plans v Travelers Ins. Co., 514 US 645, 654 [1995]). Congress’ intent to preempt “may be explicitly stated in the statute’s language or implicitly contained in its structure and purpose. In the absence of an express congressional command, state law is pre-empted if that law actually conflicts with federal law” (Cipollone v Liggett Group, Inc., 505 US 504, 516 [1992] [internal quotation marks and citation omitted]). State law will not “be superseded by [a] Federal Act unless that was the clear and manifest purpose of Congress” (New York State Conference of Blue Cross & Blue Shield Plans, 514 US at 655).

Here, the LHWCA clearly states in section 905 (b) that an action in negligence may be brought against a vessel and that such remedy “shall be exclusive of all other remedies against the vessel except remedies available under this chapter.” Congress clearly intends that actions maintained against a vessel be brought solely within the confines of the LHWCA and nowhere in the Act does it permit strict liability claims, as provided in Labor Law § 240 (1) and § 241 (6). Therefore, section 905 (b) of the LHWCA expressly preempts plaintiffs Labor Law § 240 (1) and § 241 (6) claims. Contrary to the Appellate Division’s alternative holding, Cammon v City of New York (95 NY2d 583 [2000]) does not support the premise that New York’s Labor Law is not preempted by section 905 (b). Cammon involved an injured worker receiving benefits under the LH-WCA and a defendant landowner. Thus, this case did not involve section 905 (b), “Negligence of vessel,” as set forth in the LH-WCA. While it is true that federal maritime law does not generally supersede state law (see Cammon, 95 NY2d at 587), in this case, where Congress explicitly limited claims against the vessel owner to that federal act, state law claims are preempted.

Accordingly, the order of the Appellate Division should be reversed, with costs, the order of Supreme Court reinstated and the certified question answered in the negative.

Ciparick, J. (dissenting).

Because plaintiff cannot assert a maritime tort claim for vessel negligence against the vessel owner, section 905 (b) of the Longshore and Harbor Workers’ Compensation Act does not apply to preempt his state law claims. Accordingly, I respectfully dissent.

The Longshore and Harbor Workers’ Compensation Act (LH-WCA or the Act) (33 USC § 901 et seq.) establishes workers’ compensation benefits to “land-based maritime workers” (Stewart v Dutra Constr. Co., 543 US 481, 488 [2005]; see also McLaurin v Noble Drilling [U.S.], Inc., 529 F3d 285, 289 [5th Cir 2008]). Under the LHWCA, qualified employees injured during the course of their employment may, regardless of fault, recover workers’ compensation benefits from their employers (see 33 USC § 904). An injured employee may also seek to recover against a vessel owner where the negligence of the vessel caused his or her injuries (see 33 USC § 905 [b]). Specifically, section 905 (b) of the LHWCA provides,

“In the event of injury to a person covered under [the LHWCA] caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void . . . The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter” (emphasis added).

If there is no remedy provided by section 905 (b), there is no “exclusive remedy” that preempts state law actions. Section 905 (b) does not create a new statutory negligence cause of action or maritime tort, nor does it extend or create new admiralty jurisdiction (see Richendollar v Diamond M Drilling Co., Inc., 819 F2d 124, 128 [5th Cir 1987]). Rather, it merely preserves an injured employee’s right to recover for vessel negligence under existing maritime law (see Kerr-McGee Corp. v Ma-Ju Mar. Servs., Inc., 830 F2d 1332, 1339 [5th Cir 1987]; see also In re Donjon Mar. Co., Inc., 2008 WL 3153721, 2008 US Dist LEXIS 59102 [SD NY 2008]). If a plaintiff cannot state a cause of action for a maritime tort, section 905 (b) does not provide any remedy and so does not apply to preempt state law causes of action against vessel owners (see McLaurin, 529 F3d at 289; see also Robertson v Arco Oil & Gas Co., 766 F Supp 535, 537-538 [WD La 1991] [where the plaintiffs claim fell within admiralty jurisdictions, “(h)is maritime law remedy against the vessel owner . . . consist(ed) of a section 905 (b) suit for negligence”]). Thus, to determine whether a plaintiff’s state claims are preempted by the “exclusive remedy” language of section 905 (b), a court must first ascertain whether the plaintiff can state a maritime tort claim for vessel negligence against the vessel owner.

A tort claim qualifies as a “maritime tort” and falls under the federal courts’ admiralty jurisdiction where the injury satisfies a maritime situs/status test (see Richendollar, 819 F2d at 127). That is, “when the wrong (1) took place on navigable waters (‘situs’) and (2) ‘bear[s] a significant relationship to traditional maritime activity’ (‘status’),” the alleged wrong may be susceptible to suit under a maritime tort cause of action (Keene Corp. v United States, 700 F2d 836, 843 [2d Cir 1983], quoting Executive Jet Aviation, Inc. v Cleveland, 409 US 249, 268 [1972]). In Jerome B. Grubart, Inc. v Great Lakes Dredge & Dock Co. (513 US 527 [1995]), the Supreme Court explained the status test, or “connection” test, as having two components:

“The connection test raises two issues. A court, first, must ‘assess the general features of the type of incident involved,’ to determine whether the incident has ‘a potentially disruptive impact on maritime commerce.’ Second, a court must determine whether ‘the general character’ of the ‘activity giving rise to the incident’ shows a ‘substantial relationship to traditional maritime activity.’ ” (Id. at 534 [citations omitted], quoting Sisson v Ruby, 491 US 358, 363, 364 n 2, 365 [1990].)

The federal courts have considered various factors to determine whether an alleged wrong bears a significant relationship to traditional maritime activity, including:

“1) the functions and roles of the parties; 2) the types of vehicles and instrumentalities; 3) the causation and type of injury; 4) traditional concepts of the role of admiralty law; 5) the impact of the event on maritime shipping and commerce; 6) the desirability of a uniform national rule to apply to such matters, and 7) the need for admiralty ‘expertise’ in the trial and decision of the case” (Ciolino v Sciortino Corp., 721 F Supp 1491, 1493 [D Mass 1989], citing Shea v Rev-Lyn Contr. Co., Inc., 868 F2d 515, 517-518 [1st Cir 1989], Drake v Raymark Indus., Inc., 772 F2d 1007 [1st Cir 1985], Molett v Penrod Drilling Co., 826 F2d 1419, 1426 [5th Cir 1987], Oman v Johns-Manville Corp., 764 F2d 224, 230 [4th Cir 1985]; Harville v Johns-Manville Prods. Corp., 731 F2d 775, 779-787 [11th Cir 1984], and Kelly v Smith, 485 F2d 520, 525 [5th Cir 1973]).

As stated by the majority opinion, here, plaintiffs injury occurred in navigable waters on a “vessel,” as the Supreme Court recently broadly defined that term in Stewart (543 US at 495). Thus, the “situs” test for a maritime tort sounding in negligence is satisfied (see Executive Jet Aviation, 409 US at 268). However, the status test is not satisfied because plaintiffs activity on defendant’s vessel bore no cognizable relationship to maritime activity or commerce. As a result, section 905 (b) cannot apply to preempt plaintiffs state law claims against the vessel owner (see e.g. McLaurin, 529 F3d at 291-292).

Plaintiff was employed by third-party defendant Elliott as a millwright to perform substantial mechanical work on gas turbine electrical generating units owned by defendant/third-party plaintiff. These generating units happened to be housed on defendant’s barges, i.e., vessels; however, other than their incidental location upon navigable waters, no other features of the gas turbine electrical generating units—nor of plaintiff s employment working on those units—bore any relation to a traditional maritime activity or to maritime commerce (see Jerome B. Grubart, Inc., 513 US at 534). Indeed, the gas turbines are part of a power-generating operation that includes land-based structures adjacent to the barge turbines. Electricity generated by the barge turbines is conveyed over power lines, which are land-based, for transmission to energy consumers.

In Matter of Consolidated Edison Co. of N.Y. v City of New York (44 NY2d 536 [1978]), we determined that, for the purposes of taxation, the barges were properly “classified as structures affixed to the land on which is situated the land-based distribution system to which [the barges] are physically connected and integrally related,” and, as such, could be taxed as real property rather than personal property (id. at 542). A structure so entwined with a land-based energy production operation that we saw fit to permit its taxation as real property plainly has no relation to any traditional maritime activity.

That plaintiff recovered workers’ compensation benefits under the LHWCA is of no import, inasmuch as the question whether plaintiff can recover no-fault benefits under the Act is distinct from the question whether he can recover in maritime tort for vessel negligence under section 905 (b). Significantly, section 933 (a) of the LHWCA expressly recognizes that an employee covered by the LHWCA may have state law remedies against third parties other than his or her employer (see McLaurin, 529 F3d at 292). As the United States Court of Appeals for the Fifth Circuit explained in McLaurin,

“[s]ection 933 specifically forbids a claim against the employer or a person in his employ, leaving [section] 904 [workers’ compensation claims] as the only avenue of recovery against the employer or a negligent coworker . . .
“Notably, unlike employers, vessel owners are not mentioned in [section] 933, so a maritime worker may attempt to recover against a vessel owner for vessel negligence under [section] 905 (b) [or] against a vessel owner as a third-party tortfeasor under [section] 933” (529 F3d at 292, quoting 33 USC § 933 [a] [internal quotation marks and original alterations omitted]).

The plain language of section 905 (b) makes recovery under that section the “exclusive remedy” where an injured employee has a cause of action for vessel negligence. However, where, as here, the injured employee has no cause of action for vessel negligence under maritime law, section 933 of the LHWCA expressly recognizes and preserves state law causes of actions against third parties, including vessel owners who are not also employers.

Accordingly, I would affirm the order of the Appellate Division reinstating plaintiffs Labor Law claims against the owner of the barges, Astoria/Orion, and granting plaintiff partial summary judgment on the section 240 (1) claim.

Judges Graffeo, Read, Smith and Pigott concur with Judge Jones; Judge Ciparick dissents and votes to affirm in a separate opinion in which Chief Judge Lippman concurs.

Order reversed, etc.

      . “The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee” (33 USC § 905 [a]). Section 904 (a) provides that “[e]very employer shall be hable for and shall secure the payment to his employees of the compensation payable under sections 907, 908, and 909 of this title.”

      . “In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party . . . and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void . . . The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter” (33 USC § 905 M).

      . It appears that the Appellate Division affirmed the dismissal of plaintiffs Labor Law § 200 and common-law negligence claims. Astoria/Orion did not appeal the denial of that part of their summary judgment motion that sought relief on the third-party complaint.

      . In Perini North River, the Supreme Court explained the history of the LHWCA. Prior to 1972, the LHWCA applied only to injuries that occurred on navigable waters (Perini North River, 459 US at 313). In 1972, Congress expanded the coverage landward and created a scope of persons covered, which became the situs and status test (id. at 317-318). The Perini North River Court then held that “when a worker is injured on the actual navigable waters in the course of his employment on those waters, he satisfies the status requirement . . . and is covered under the LHWCA” (id. at 324). The Court noted that “Congress was concerned with injuries on land, and assumed that injuries occurring on the actual navigable waters were covered, and would remain covered” (id. at 319).

      . The dissent’s reliance upon Executive Jet Aviation, Inc. v Cleveland (409 US 249 [1972]) and McLaurin v Noble Drilling (US.), Inc. (529 F3d 285 [5th Cir 2008]) is misplaced—neither of those cases involved claims traditionally covered under the LHWCA. The Supreme Court created the maritime tort inquiry in Executive Jet. There, the Court “concluded that maritime locality alone is not a sufficient predicate for admiralty jurisdiction in aviation tort cases” (409 US at 261). In McLaurin, the Fifth Circuit continued the use of such inquiry in the context of a shipyard accident. The court, noting that “[i]njury on navigable waters is a sine qua non of the maritime tort, . . . held that a maritime worker injured on dry land cannot sustain a cognizable injury under § 905 (b) of the LHWCA” (529 F3d at 290 [internal quotation marks and citation omitted]).

      . This Court has a history of preserving state claims where doing so is not inconsistent with the federal scheme (see e.g. Matter of People v Applied Card Sys., Inc., 11 NY3d 105 [2008]; Arons v Jutkowitz, 9 NY3d 393 [2007]). As the Appellate Division noted, this is particularly true in cases involving the health and safety of our workers (see e.g. Balbuena v IDR Realty LLC, 6 NY3d 338 [2006]; Common v City of New York, 95 NY2d 583 [2000]), a matter which has historically been within the police powers of the State.

      . The majority conflates the issue of workers’ compensation benefits under the Act with the potential maritime tort remedy under the Act (see majority op at 389-390). As to the former, a covered worker need only sustain some injury on the navigable waters to satisfy the status test for workers’ compensation benefits (see Director, Office of Workers’ Compensation Programs v Perini North River Associates, 459 US 297, 324 [1983]). As to the latter—the tort claim—the alleged wrong must “heart ] a significant relationship to traditional maritime activity” (Executive Jet Aviation, Inc. v Cleveland, 409 US 249, 268 [1972]). The federal courts have recently used the Executive Jet test to ascertain whether a plaintiff can assert a section 905 (b) vessel negligence claim (see e.g. McLaurin, 529 F3d at 289).

      . Stewart, although instructive for limited purposes here, is distinguishable on its facts. In that case, the plaintiff, a marine engineer, was injured when a dredge collided with a vessel (a scow) upon navigable waters (see 543 US at 485). The plaintiff had been hired by the dredge’s owner “to maintain the mechanical systems” of the dredge (id.). The Supreme Court observed that the “question in th[e] case [was] whether a dredge is a ‘vessel’ under § 2 (3) (G) of the Longshore and Harbor Workers’ Compensation Act” (id. at 484). Notably, after answering that narrow question, the Court remitted the matter for further proceedings.

      . While Common v City of New York does not form the basis for this dissent, the majority is mistaken to reject that case out of hand as distinguishable. To be sure, Common involved an action by an employee against a property owner—but so does this case. During an earlier hearing to determine plaintiff’s eligibility for LHWCA workers’ compensation benefits, the testimony of Astoria/Orion’s asset manager, Liam Baker, indicated that, at a minimum, Astoria/Orion owned the electrical lines connecting the barges to Consolidated Edison’s substation, and implied that Astoria/Orion owned the piers to which the barges were moored. Moreover, notably, when asked to describe the distance between Consolidated Edison’s substation and Astoria/ Orion’s generating barges, Baker observed that substation abutted the “property line” of Astoria/Orion, approximately 100 yards from the barges. Thus, here, plaintiff was injured while working on a barge attached to Astoria/ Orion’s land, and, as noted, we have already determined—albeit for tax purposes—that the barges are taxable as real property. In short, plaintiff was injured while working on the vessel portion of Astoria/Orion’s integrated power generating station. In my view, the holding of Common would apply with equal force here, and bears repeating: “State application of strict liability here will not ‘unduly interfere! ] with the federal interest in maintaining the free flow of maritime commerce’ . . . Local regulations that do not affect vessel operations, but rather govern liability issues with respect to landowners and contractors within the State, have no extraterritorial effect” (95 NY2d at 589, quoting American Dredging Co. v Miller, 510 US 443, 458 [1994, Souter, J., concurring]).