Lott v. State, s. 35463

• Decision Date: 24 February 1962
• Docket Number: Nos. 35463,35488,s. 35463
• Parties: Frank LOTT and Sylvia Goldberg, Claimants, v. The STATE of New York. Michael TUMMINELLI and Crosby Tumminelli, Claimants, v. The STATE of New York. Claim
• Court: New York Court of Claims

Page 434

225 N.Y.S.2d 434

32 Misc.2d 296

Frank LOTT and Sylvia Goldberg, Claimants, v. The STATE of New York.

Michael TUMMINELLI and Crosby Tumminelli, Claimants, v. The STATE of New York.

Claim Nos. 35463, 35488.

Court of Claims of New York.

Feb. 24, 1962.

James J. Jackman, New York City, by Morris Honig, New York City, of counsel, for claimants Frank Lott and Sylvia Goldberg.

Morris Honig, New York City, for claimants Michael Tumminelli and Crosby Tumminelli.

Louis J. Lefkowitz, Atty. Gen., by Robert Schwartz, Asst. Atty. Gen., for the State.

MELVIN H. OSTERMAN, Judge.

On January 18th, 1958, Mrs. Rose Lott and Mrs. Mary Tumminelli, patients at Brooklyn State Hospital, died at about the same hour. Both bodies were taken to a shower room, washed and covered with shrouds and an attendant thereafter attached a tag to each body bearing the name of the deceased. Both families were notified and were asked to have their undertakers call for the bodies.

On January 19th, 1958, the undertaker for the Lott family arrived at the hospital mortuary and was given the body tagged with the name of Rose Lott. On the same day, the undertaker for the Tumminelli family received the body tagged with the name of Mary Tumminelli.

The undertaker for the Lott family took the body to his funeral parlor and prepared it for an Orthodox Jewish burial in accordance with the family's instructions. The body was placed on a 'Taharah' board, washed in accordance with religious rites and prayers said over it. When the preparations were completed and the family permitted to view the body, it was discovered that the body was not that of Rose Lott.

Upon conveying this information to the Brooklyn State Hospital, the Lott family was told to communicate with the undertaker who had claimed the body of Mary Tumminelli. The Tumminellis' undertaker, advised of a possible error, had the Tumminelli family view the body and they confirmed that it was not that of their mother. The hospital requested the undertakers to return the bodies and, in the presence of both families, proper identification was made and the bodies were exchanged.

The record discloses that the body of Rose Lott, while in the possession of the Tumminelli funeral director, had been embalmed, made up with cosmetics and had been placed in a coffin with a crucifix and rosary beads in her hands in accordance with the rites of the Roman Catholic faith. Mary Tumminelli's body, in the belief that it was Mrs. Lott, had been prepared for burial according to the requirements of the Orthodox Jewish faith . As a result of the error, Mrs. Tumminelli's funeral had to be postponed one day and her family and friends renotified.

The claimants testified as to the shock and anguish that they suffered as a result of the error.

The law is well settled that the surviving next of kin have a right to the immediate possession of a decedent's 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 decedent's body. (Darcy v. Presbyterian Hospital, 202 N.Y. 259, 95 N.E. 695; Foley v. Phelps, 1 App.Div. 551, 37 N.Y.S. 471; Larson v. Chase, 47 Minn. 307, 50 N.W. 238, 14 L.R.A. 85; 17 A.L.R.2d 770, et seq. See also, Jackson, Law of Cadavers, 2nd Ed. pp. 164-183).

This rule of law has been applied to both physical multilation of the bodies as in Grawunder v. Beth Israel Hospital, 242 App.Div. 56, 272 N.Y.S. 171, aff'd 266 N.Y. 605, 195 N.E. 221 (unauthorized autopsy), in Hassard v. Lehane, 143 App.Div. 424, 128 N.Y.S. 161 (mishandling organs), in Medical College of Georgia v. Rushing, 1 Ga .App. 468, 57 S.E. 1083 (multilation and dissection), as well as in cases where there was no physical injury to the body, but only unlawful interference with the surviving kin's right to the body (Klumback v. Silver Mount Cemetery Assoc., 242 App.Div. 843, 275 N.Y . S. 180; Gostkowski v. Roman Catholic Church, 262 N.Y. 320, 186...