The following e-filed documents, listed by NYSCEF document number (Motion 004) 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 60, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 106, 108, 109 were read on this motion for PARTIAL SUMMARY JUDGMENT.
Upon the foregoing documents, plaintiffs motion for partial summary judgment is granted for the reasons set forth below.
The following facts are undisputed. On November 8, 2018, Shawn Kamari Frederick, Sr., executed a New York State Department of Health Form DOH-5211, Appointment of Agent to Control Disposition of Remains (the Form 5211), which directed that plaintiff, Nakemia Stanley, was to control the disposition of his remains upon his death (NYSCEF Doc. No. 56 [Form 5211]).
Frederick died on November 26, 2018, after which his body came into the possession of defendant Office of the Chief Medical Examiner of the City of New York (OCME). On November 26, 2018, a representative of plaintiff faxed the Form 5211 to the legal department at OCME. OCME subsequently released Fredericks remains to the Brooklyn Funeral Home and Cremation Service at the request of a member of Fredericks biological family. Upon learning that plaintiff and Fredericks biological family disputed who had the right to possess and dispose of Fredericks remains, OCME retrieved Fredericks remains from Brooklyn Funeral Home and Cremation Service. Plaintiff eventually gained control over Fredericks remains and had him cremated in conformity with his directive in the Form 5211.
Plaintiff commenced this action on January 30, 2020, asserting claims for loss of sepulcher, intentional and negligent infliction of emotional distress, negligence, due process and equal protection violations, and New York City Human Rights Law violations. On February 21, 2020, the City moved, pursuant to CPLR § 3211(a)(7), to dismiss the complaint in its entirety. In a decision and order dated December 23, 2020, this Court (Hon. Dakota D. Ramseur) granted this motion in part, dismissing plaintiffs intentional and negligent infliction of emotional distress claims, and otherwise denied the motion (Stanley v City of New York, 71 Misc 3d 171, 177-181 [Sup Ct, NY County 2020] [emphasis added]).
Plaintiff now moves for partial summary judgment as to liability on her claim for loss of sepulcher based upon defendants release of Fredericks body to the funeral home designated by his biological family. In support of this motion, plaintiff submits: the Form 5211 executed by Frederick (NYSCEF Doc. No. 56); an OCME Investigation Report dated November 26, 2018 (NYSCEF Doc. No. 51); the transcript of plaintiffs General Municipal Law (GML) § 50-h hearing (NYSCEF Doc. No. 52); plaintiffs notices to admit dated February 5, 2021 and July 20, 2021 (NYSCEF Doc. Nos. 54 and 55); and the Citys amended responses to plaintiffs notice to admit (NYSCEF Doc. No. 53).
Defendants oppose plaintiffs motion and cross-move for an order, pursuant to CPLR §§ 3124 and 3126, precluding plaintiff from offering evidence at trial regarding plaintiffs relationship with Fredericks, the timing of plaintiffs request to OCME to release Fredericks remains, and her claim of punitive damages, based on plaintiffs failure to provide discovery related to these issues. Defendants also move, pursuant to CPLR § 3123, for an order deeming plaintiffs second notice to admit improper.
Defendants submit, as pertinent here, an affirmation from Leslie C. Kamelhar, Special Counsel for Litigation and Policy in the Office of Chief Medical Examiner, attesting that:
On November 29, 2018, a representative of the Brooklyn Funeral Home and Cremation Service came to OCME and presented sufficient standard paperwork to obtain release of a decedents remains. Angela DeJesus, an employee of OCME, approved release of Mr. Fredericks remains to the Brooklyn Funeral Home. In doing so, she apparently overlooked the DOH 5211 form in the case notes. The remains were released to Brooklyn Funeral Home at approximately 6:00 p.m. on November 29, 2018. However, by 2:30 p.m. on November 30, 2018, less than 24 hours after release, Mr. Fredericks remains were once again in the possession of OCME and subsequently, a hold was placed on the remains.
DOH form 5211 designated Ms. Stanley, as agent to control disposition of Mr. Fredericks remains, however, she never requested release of the remains prior to the request by Brooklyn Funeral Home, on behalf of decedents mother. Had she made such a request, prior to notification to OCME of other claims, the remains would have been released to her designated funeral home.
On the morning of November 30, 2018, OCME contacted Brooklyn Funeral Home and advised that OCME had a legal directive indicating that Mr. Frederick had authorized plaintiff to control disposition of his remains, and requested that nothing further be done with Mr. Fredericks body. Arrangements were made for OCME to transport the remains from Brooklyn Funeral Home back to OCME. By 2:30 p.m. on November 30, 2018, OCME again had possession of Mr. Fredericks remains.
Documents from OCME include a November 30, 2018 e-mail from Ms. DeJesus summarizing why she released the remains to the Brooklyn Funeral Home which indicates that she overlooked the DOH form. Prior to releasing the remains to the funeral home, she reviewed the case notes, and her review of the notes did not suggest that there was a dispute between the plaintiff and the biological family regarding the disposition of Mr. Fredericks remains, but rather the contrary.
The request by Brooklyn Funeral Home on the mothers behalf for release of Mr. Fredericks body should have prompted placement of a hold, as that request conflicted with the designation of Ms. Stanley as the person to control the disposition of Mr. Fredericks remains in the DOH form 5211.
(NYSCEF Doc. No. 64 [Kamelhar Affirm. at ¶¶4-5, 7-8] [internal citations omitted]).
DISCUSSION
[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [internal citations omitted]).
Plaintiff has made her prima facie showing for partial summary judgment on her loss of sepulcher claim. It is well established that the common-law right of sepulcher gives the next of kin the absolute right to the immediate possession of a decedents body for preservation and burial, and that damages will be awarded against any person who unlawfully interferes with that right or improperly deals with the decedents body (Melfi v Mount Sinai Hosp., 64 AD3d 26, 31 [1st Dept 2009] [internal citations omitted]). Accordingly, [t]o establish a cause of action for interference with the right of sepulcher, plaintiff must establish that: (1) plaintiff is the decedents next of kin; plaintiff had a right to possession of the remains; (3) defendant interfered with plaintiffs right to immediate possession of the decedents body; (4) the interference was unauthorized; (5) plaintiff was aware of the interference; and (6) the interference caused plaintiff mental anguish, which is generally presumed (Shepherd v Whitestar Dev. Corp., 113 AD3d 1078, 1080 [4th Dept 2014] internal citations and quotations omitted]; see also Melfi v Mount Sinai Hosp., 64 AD3d 26, 39 [1st Dept 2009]).
The undisputed facts here satisfy these elements. First, the Form 5211 submitted by plaintiff establishes that she was Fredericks next of kin and had the preeminent right to possess his remains. The method of determining the next of kin is governed by section 4201 of the Public Health Law (Rodriguez v Ortiz Funeral Home Inc. 2020 WL 5874809 [Sup Ct, Bronx County 2020] citing Turner v Owens Funeral Home, Inc., 140 AD3d 632, 634 [1st Dept 2016]; see also Mack v Brown, 24 Misc 3d 1242(A) [Sup Ct, Kings County 2009], revd on other grounds, 82 AD3d 133 [2d Dept 2011] and Shepherd v Whitestar Dev. Corp., 113 AD3d 1078, 1080 [4th Dept 2014]), which provides that "[t]he following persons in descending priority shall have the right to control the disposition of the remains of such decedent:
(i) the person designated in a written instrument executed pursuant to the provisions of this section;
(ii) the decedents surviving spouse;
(ii-a) the decedents surviving domestic partner;
(iii) any of the decedents surviving children eighteen years of age or older;
(iv) either of the decedents surviving parents;
(v) any of the decedents surviving siblings eighteen years of age or older;
(vi) a guardian appointed pursuant to article seventeen or seventeen-A of the surrogates court procedure act or article eighty-one of the mental hygiene law;
(vii) any person eighteen years of age or older who would be entitled to share in the estate of the decedent as specified in section 4-1.1 of the estates, powers and trusts law, with the person closest in relationship having the highest priority;
(viii) a duly appointed fiduciary of the estate of the decedent;
(ix) a close friend or relative who is reasonably familiar with the decedents wishes, including the decedents religious or moral beliefs, when no one higher on this list is reasonably available, willing, or competent to act, provided that such person has executed a written statement pursuant to subdivision seven of this section
(PHL § 4201[2][a] [emphasis added]).
Defendants acknowledge that Fredericks executed Form 5211 is a written instrument within the meaning of § 4201(2)(a)(i) (Beck Affirm. at ¶2 [NYSCEF Doc. No. 62]). Accordingly, plaintiff had first priority to Fredericks remains as next of kin. While defendants argue that PHL § 4201 does not, by its own terms, create any express cause of action but rather generally defines the disposition of remains, this argument misses the point—plaintiffs claim is not based on a violation of this statute.
It is also uncontested that OCME released Fredericks remains to the funeral home selected by his biological relatives, despite the fact that plaintiff had previously submitted the completed Form 5211 giving her first priority to Fredericks remains (See Beck Affirm. at ¶4 [NYSCEF Doc. No. 62]). This constitutes interference with plaintiffs right to possess Fredericks remains for purposes of a loss of sepulcher claim (See Jones v City of New York, 80 AD3d 516 [1st Dept 2011] [interference in loss of sepulcher claim established where defendant improperly released remains to Pennsylvania funeral home]; see also Pagan v Westchester Healthcare Corp., 2007 WL 7308598 [Sup Ct, Westchester County 2007] [evidence that plaintiffs babies remains were released to a funeral home that they did not select, without their submission, and could not be located for several days established unlawful interference]). To the extent that the City argues that this interference was de minimis because Fredericks body was out of OCMEs possession for less than twenty-four hours, this is irrelevant to the analysis on this motion. Instead, [t]he length of time that the next of kin were deprived of the decedents body and the resulting interference with immediate possession and burial [are] issues of fact with respect to damages, which must await trial (Rugova v City of New York, 132 AD3d 220, 227 [1st Dept 2015]). Similarly, the fact that plaintiff was eventually able to honor Fredericks wish to be cremated—per his direction in the Form 5211—is irrelevant to the issue of whether plaintiffs right to immediate possession of Fredericks remains was interfered with.
Neither do defendants dispute that plaintiff learned of this interference (NYSCEF Doc. No. 52 [Stanley GML § 50-h Tr. at pp. 124-126]). Finally, the last element of plaintiffs prima facie case, that the interference caused plaintiff mental anguish, is presumed (See Melfi v Mount Sinai Hosp., 64 AD3d 26, 39 [1st Dept 2009]; Plunkett v NYU Downtown Hosp., 21 AD3d 1022, 1022-23 [2d Dept 2005] [plaintiffs action to recover for the emotional injuries flowing from the defendants interference with their right to the possession of his remains was not rendered deficient merely because the plaintiffs did not submit medical evidence to support all of their injuries]) though the degree of mental anguish remains relevant to the determination of damages (See Shipley v City of New York, 25 NY3d 645, 653 [2015] [damages are limited to the emotional suffering, mental anguish and psychological injuries and physical consequences thereof experienced by the next of kin as a result of the interference with the right of sepulcher]; see also Plunkett v NYU Downtown Hosp., 21 AD3d 1022, 1022-23 [2d Dept 2005] [evidence of a specific medical diagnosis or course of treatment may be relevant to the issue of damages]).
In opposition, defendants fail to rebut plaintiffs prima facie case. Defendants argue that this motion is premature because they have outstanding discovery requests relevant to plaintiffs loss of sepulcher claim, seeking information regarding plaintiffs asserted partnership with Frederick and the timing of plaintiffs request to OCME to release Fredericks remains to her. However, this discovery is not necessary for the disposition of this motion
1
. Whether plaintiff qualifies as Fredericks domestic partner is irrelevant to this motion, where she does not seek to establish her entitlement to Fredericks remains under PHL § 4201(2)(a)(ii-a) but has instead satisfied her prima facie burden based on her priority under PHL § 4201(2)(a)(i). Neither is discovery establishing whether plaintiff requested the release of Fredericks remains before or after the request by Fredericks biological family relevant here—a loss of sepulcher claim does not require that plaintiff, having established her priority to Fredericks remains to OCME, also establish that she requested the release of those remains before all parties with lower priority. Accordingly, plaintiffs motion for partial summary judgment on her loss of sepulcher claim is granted and the Court turns to defendants cross-motion to preclude plaintiff from offering evidence at trial related to the discovery issues outlined above.
Defendants cross-motion is denied without prejudice. CPLR § 3124 provides that [i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article . . . the party seeking disclosure may move to compel compliance or a response (CPLR § 3124). CPLR § 3126 authorizes the court to sanction a party who refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed. However, such sanctions are only appropriate where the party seeking disclosure demonstrates conclusively that the failure to disclose was willful, contumacious or due to bad faith (Gonzalez v 431 E. 115 St. LLC, 68 Misc 3d 1207(A) [Sup Ct, NY County 2020] citing Hassan v Manhattan & Bronx Surface Tr. Operating Auth., 286 AD2d 303, 304 [1st Dept 2001]). The Court does not, on the record before it, find such willful or contumacious behavior. Moreover, as there are no prior Court orders requiring plaintiff to respond to defendants discovery demands, the extreme sanction of preclusion is inappropriate at this juncture (See Emigrant Mortg. Co., Inc. v Beckerman, 105 AD3d 895, 896 [2d Dept 2013]; see also Gonzalez v 431 E. 115 St. LLC, 68 Misc 3d 1207(A) [Sup Ct, NY County 2020]). Accordingly, defendants cross-motion to preclude is denied without prejudice to the renewal of such motion should the parties fail to resolve the discovery issues outlined in defendants cross-motion at the parties next conference in the Differentiated Case Management Part.
In light of the foregoing, it is
ORDERED that plaintiffs motion is granted, and plaintiff is granted summary judgment as to liability in her favor against defendants on her first cause of action, for loss of sepulcher; and it is further
ORDERED that the issues of damages regarding plaintiffs loss of sepulcher claim shall be determined at the trial of this matter; and it is further
ORDERED that this trial shall be held following the completion of discovery and plaintiffs filing of a Note of Issue and Certificate of Readiness; and it is further
ORDERED that plaintiff shall, within ten days of the date of this decision and order, serve a copy of this decision and order, with notice of entry, upon defendants as well as the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General Clerks Office (60 Centre Street, Room 119), who are directed to enter judgment accordingly; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerks Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the EFiling page on this courts website at the address www.nycourts.gov/supctmanh); and it is further
ORDERED that the Clerk of the Court is directed to schedule this matter for a status conference in the Differentiated Case Management Part on the next available date.
This constitutes the decision and order of the Court.
DATE 11/7/2022
HON. JUDY H. KIM, J.S.C.
FOOTNOTES
1
. The Court makes no determination, at this juncture, as to whether or not the aforementioned discovery may be relevant to either defendants defenses to other causes of action asserted in the complaint or to damages.
Judy H. Kim, J.