Booth v. Huff
| Decision Date | 15 June 2000 |
| Citation | 273 A.D.2d 576,708 N.Y.S.2d 757 |
| Parties | CORINNE M. BOOTH et al., Respondents,<BR>v.<BR>PATRICIA L. HUFF, Appellant. |
| Court | New York Supreme Court — Appellate Division |
This action involves a dispute over the disposition of the cremated remains of Ronald Booth (hereinafter decedent), who died on January 7, 1996. At the time of his death, decedent was in the process of obtaining a divorce from his wife, Marsha Booth, and was residing with defendant, his girlfriend, who was designated in his will as the executor of his estate.[1] After a two-day wake, decedent was cremated and defendant took possession of the remains. According to plaintiffs, who are decedent's daughters,[2] in the weeks that followed they contacted defendant by telephone and by correspondence through their respective attorneys requesting that the remains be delivered to them. Although defendant acknowledges one telephone conversation in which plaintiff Corinne M. Booth expressed a desire to divide the ashes between herself, her sister and her mother, defendant denies that plaintiffs made repeated requests for the ashes and claims that she was unaware of the correspondence sent to the law firm handling the estate.
Ten months after decedent's death, without advising decedent's family of her plans, defendant scattered the ashes in the Hudson River. Thereafter, this action was commenced against defendant seeking damages for mental anguish resulting from her allegedly wrongful conduct in refusing to turn over the remains and disposing of them without notifying plaintiffs. When Corinne Booth moved to amend the complaint to add Rebecca Booth as a plaintiff, defendant cross-moved for summary judgment dismissing the complaint, asserting that she could not be held liable for disposal of the remains because she had merely complied with decedent's explicit wishes. In support of her motion, defendant offered the affidavits of several nonparty witnesses who indicated that decedent had expressed a desire that his ashes be scattered where he hunted and fished. Plaintiffs responded with contradictory evidence, contending that decedent had instructed that his ashes be buried in the "family garden" in Columbia County or, in the alternative, at the family plot in Westchester County. Finding that defendant failed to meet her burden of establishing entitlement to summary judgment, Supreme Court denied defendant's cross motion. We affirm.
Generally, "`the surviving next of kin have a right to the immediate possession of the decedent's body for preservation and burial and * * * damages will be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent's body'" (Estate of Finn v City of New York, 76 Misc 2d 388, 389, quoting Lott v State of New York, 32 Misc 2d 296, 297-298 [citations omitted]; see, Darcy v Presbyterian Hosp., 202 NY 259; Roach v Stern, 252 AD2d 488; Correa v Maimonides Med. Ctr., 165 Misc 2d 614). However, a decedent's wishes will be taken into account when a dispute erupts over the ultimate disposition of remains and, in some cases, given effect over the objections of family members (see, e.g., Matter of Briggs v Hemstreet-Briggs, 256 AD2d 894; Stewart v Schwartz...
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