Flynn v. Pinelawn Cemetery

Decision Date13 January 2022
Docket NumberIndex No. 603804/19,Motion Seq. No. 02
Citation2022 NY Slip Op 31961 (U)
PartiesCOLLEEN FLYNN, KATHLEEN M. BUCZAK FISHER and STEPHEN BUCZAK, Plaintiffs, v. PINELAWN CEMETERY, A NEW YORK NOT-FOR-PROFIT CORPORATION d/b/a PINELAWN MEMORIAL PARK AND ARBORETUM, Defendants.
CourtNew York Supreme Court

2022 NY Slip Op 31961(U)

COLLEEN FLYNN, KATHLEEN M. BUCZAK FISHER and STEPHEN BUCZAK, Plaintiffs,
v.

PINELAWN CEMETERY, A NEW YORK NOT-FOR-PROFIT CORPORATION d/b/a PINELAWN MEMORIAL PARK AND ARBORETUM, Defendants.

Index No. 603804/19, Motion Seq. No. 02

Supreme Court, Nassau County

January 13, 2022


Unpublished Opinion

Motion Date 10/22/21

SHORT FORM ORDER

HON. RANDY SUE MARBER, Justice.

Papers Submitted:

Notice of Motion...............................................x

Affirmation in Opposition............................x

Reply Affirmation......................................x

Upon the foregoing papers, the motion by the Defendants, PINELAWN CEMETERY, A NEW YORK NOT-FOR-PROFIT CORPORATION d/b/a PINELAWN MEMORIAL PARK AND ARBORETUM ("Pinelawn"), seeking an Order, pursuant to CPLR § 3212, granting it summary judgment dismissing the complaint of the Plaintiffs, COLLEEN FLYNN ("Flynn"), KATHLEEN M. BUCZAK FISHER ("Fisher") and STEPHEN BUCZAK ("Buczak"), is decided as provided herein.

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In this action, the Plaintiffs seek to recover damages for the alleged improper burials of Rudolph Buczak and Dorothy Buczak. The Plaintiffs are siblings and the children of Rudolph and Dorothy Buczak.

Rudolph Buczak passed away on May 17, 2012. His wife, Dorothy Buczak, passed away on October 22, 2017. Prior to their passing, on or about May 16, 2006, Rudolph and/or Dorothy Buczak purchased a double crypt plot from Pinelawn designated as Crypt 228, Spaces 2DD upper/lower, Plot 0, Range 19, Block No. 5, Section No. 50, Garden of West Fountain in the Alfred D. Locke Division of Pinelawn ("Crypt 228").

Rudolph Buczak was buried on May 21, 2012 in the lower vault of Crypt 226 in the Alfred D. Locke Division of Pinelawn ("Crypt 226"). The Plaintiffs allege that they were in attendance at Rudolph's burial and witnessed him being lowered into a pre-dug grave space. The Plaintiff, Fisher, alleges that, although her father's crypt space was not numbered at the time of his burial, she did make note of its location with reference to a nearby tree and based upon the frequency of her visits at the gravesite for nearly eight (8) years following his death. According to sworn testimony of Fisher, Rudolph Buczak was buried in Crypt 226, not Crypt 228.

Dorothy Buczak was buried on October 25, 2017 in the upper space of Crypt 228. Her casket was cherry wood with a brass nameplate. On November 2, 2017, about one week after Dorothy's burial, Fisher visited her mother's gravesite and documented that Crypt 228 still had not yet been re-sodded. At that time, Fisher also noticed that Rudolph's footstone was at the location of Crypt 226, and Dorothy's freshly dug grave with a temporary marker was at the location of Crypt 228. Fisher then advised the Vice President

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of Pinelawn that the marker for her mother's crypt was at the wrong location since Rudolph and Dorothy were supposed to be buried in the same crypt. In response, while Pinelawn offered to exhume both graves immediately, the Plaintiffs elected not to do anything at that time and instructed Pinelawn that it did not have their approval to further investigate.

On August 3, 2018, at the request of the Plaintiffs, Crypt 226 and Crypt 228 were disinterred. The disinterment of Crypt 226, the location of Rudolph's footstone, revealed a completely vacant lot. The disinterment of Crypt 228 (Upper) revealed Dorothy's casket which was removed and found to be in relatively good condition with her brass nameplate still affixed thereto. However, according to the Plaintiffs, the location and identification of Rudolph's interment site could not be confirmed because the casket in Crypt 228 (Lower) was in poor condition, could not be raised, and did not have any brass nameplate affixed thereto.

It is undisputed that the Plaintiffs were at their parents' respective funerals and observed both burials. It is also undisputed that there was no actual mishandling of Rudolph's body or Dorothy's body.

It is the Plaintiffs' belief that Rudolph Buczak was buried in the wrong location (Crypt 226) and subsequently removed from plot 226 sometime between the fall of 2016 and the spring of 2017. The Plaintiffs assert that the disinterment was to confirm where Rudolph Buczak was buried, however, no such information could be confirmed. The Plaintiffs further posit that certain statements made by Brian Groblewski, Vice President of Sales and Marketing for Pinelawn, and certain conduct on the part of Pinelawn and its

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agents, have led them to believe that Rudolph's casket was moved from Crypt 226 after his burial.

In support of its motion, defense counsel asserts that "this entire lawsuit involves the misplacement of a footstone on Crypt 226 as opposed to Crypt 228 and nothing more." It is the Defendant's position that the only error on the part of Pinelawn was the location of Rudolph's footstone at Crypt 226 instead of Crypt 228; that Plot 226 had never been opened prior to the exhumation on August 3, 2018; that between November 2, 2017 and August 3, 2018, Rudolph's casket was not moved from space 226 to space 228; and that plot 228 was not opened between October 25, 2017 and August 3, 2018. Further, according to the Defendant, there was no nameplate affixed to the bottom casket when Crypt 228 was exhumed because, according to the Defendant's records, the family did not purchase a nameplate for Rudolph. While this fact is disputed by the Plaintiffs, no evidence has been proffered to the contrary.

In their complaint, the Plaintiffs assert five causes of action: Count I asserts a claim for negligence and seeks damages for emotional distress and physical and physiological injuries; Count II asserts a claim for negligent infliction of emotional distress ("NIED"), stemming from the negligent mishandling of a corpse; Count III asserts a claim for tortious interference with a body/common law right of sepulcher; and Counts IV and V assert causes of action for intentional infliction of emotional distress ("IIED") and the tort of outrage, respectively. The Defendant now seeks dismissal of all claims arguing that there are no issues of fact with respect to any of the Plaintiffs' claims; and further, that Counts IV and V should also be dismissed on the additional ground that they are time-barred.

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Legal Analysis:

It is well established that a party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Weingrad v New York Univ. Med.Ctr., 64 N.Y.2d 851, 853 [1985]; Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]; Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). Absent such a showing, the motion will be denied, irrespective of the sufficiency of the opposing proof (see Northside Sav. Bank v. Sokol, 183 A.D.2d 816 [2dDept. 1992]; Liberty Taxi Mgt. Inc. v. Gincherman, 32 A.D.3d 276 [1st Dept. 2006]). Alternatively, to defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact (CPLR § 3212 [b]; Vermette v. Kenworth Truck Co., 68 N.Y.2d 714 [1986]; Forrest v. Jewish Guild for the Blind, 309 A.D.2d 546 [1st Dept. 2003]).

Negligent Infliction of Emotional Distress and the Common Law Right of Sepulcher:

A cause of action for negligent infliction of emotional distress generally requires plaintiff "to show a breach of duty owed to her which unreasonably endangered her physical safety, or caused her to fear for her own safety" but an...

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