Mack v. Brown

• Decision Date: 08 March 2011
• Court: New York Supreme Court — Appellate Division
• Parties: Elaine MACK, et al., respondents,v.Regina BROWN, et al., defendants,Green–Wood Cemetery Mausoleums & Crematory, appellant.

82 A.D.3d 133
919 N.Y.S.2d 166
2011 N.Y. Slip Op. 01809

Elaine MACK, et al., respondents,
v.
Regina BROWN, et al., defendants,Green–Wood Cemetery Mausoleums & Crematory, appellant.

Supreme Court, Appellate Division, Second Department, New York.

March 8, 2011.

[919 N.Y.S.2d 167]

Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, N.Y. (Anton Piotroski of counsel), for appellant.Bruce S. Reznick, P.C., Brooklyn, N.Y., for respondents.MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, L. PRISCILLA HALL, and SHERI S. ROMAN, JJ.DILLON, J.P.

[82 A.D.3d 135] Sparse case law exists interpreting the recent enactment of Public Health Law § 4201 which, inter alia, prioritizes the persons authorized to control a decedent's remains, and immunizes entities such as funeral homes, cemeteries, and crematories from civil liability for their good faith disposal of human remains upon the direction of a person enumerated in and prioritized by Public Health Law § 4201(2)(a) ( see Public Health Law § 4201[7] ). Here, the defendant Green–Wood Cemetery Mausoleums & Crematory (hereinafter Green–Wood) disposed of a decedent's remains in accordance with the wishes of the decedent's apparent widow, before learning that the decedent may have instead been married to someone else at the time of his death. We use this case as an occasion to discuss the application of Public Health Law § 4201.

I. Factual Background

The decedent, Joseph F. Mack, died on November 2, 2008, at the defendant New York Methodist Hospital (hereinafter the hospital) in Brooklyn. A certificate of death was issued in the normal course of the hospital's business that, inter alia, identified the defendant Regina Brown as the decedent's surviving spouse.

On November 4, 2008, Brown, using her married name of Regina Mack, signed an

[919 N.Y.S.2d 168]

authorization for cremation, identifying herself as both the decedent's surviving spouse, and executor of his estate. The authorization recited that the decedent left no written instructions for the disposal of his cremated body, and that no relative or other person expressed any objection to the cremation of the decedent's body.

On November 5, 2008, the decedent's body was released by the hospital to the defendant Robert Benjamin Funeral Home (hereinafter the funeral home). The following day, the funeral [82 A.D.3d 136] home delivered the decedent's body to Green–Wood where, pursuant to the authorization, it was cremated.

On December 10, 2008, the plaintiffs commenced this action, alleging that the plaintiff Shirley Major Mack (hereinafter Mack), and not Brown, was the decedent's surviving spouse, and that the decedent was a practicing Catholic with a burial plot provided by his union's benefit fund. The additional named plaintiffs are the decedent's issue. The plaintiffs alleged in their complaint that because Mack was the lawful wife of the decedent, the defendants had no authority to transfer his body from the hospital to the funeral home, and then to Green–Wood for cremation. The plaintiffs seek to recover damages for emotional distress resulting from the defendants' allegedly willful, wanton, wrongful, negligent, reckless, and careless conduct.

The action prompted a flurry of motions seeking dispositive relief. Initially, the funeral home made a pre-answer motion to dismiss the complaint pursuant to CPLR 3211(a)(1), (3) and (7). The plaintiffs then cross-moved for summary judgment on the issue of liability pursuant to CPLR 3212. The hospital and Green–Wood, which had each answered the complaint, separately cross-moved for summary judgment dismissing the complaint insofar as asserted against each of them.¹ The collective documentary evidence presented to the Supreme Court included the Certificate of Marriage Registration evidencing a marriage ceremony between the decedent and a “Shirley Majors” ² performed on July 14, 1980, in Brooklyn; a Certificate of Marriage evidencing a marriage ceremony between the decedent and Brown performed on November 5, 2007, in Brooklyn; the plaintiffs' verified complaint, including the allegation that Shirley Major Mack was still the lawful spouse of the decedent at the time of his purported marriage to Brown; the decedent's Certificate of Death; the Authorization for Cremation executed by Brown, with related documents; and the funeral home's affirmation for cremation and disinterment.

In the order appealed from, the Supreme Court granted the hospital's cross motion for summary judgment, and denied the cross motions[82 A.D.3d 137] of the plaintiffs, the funeral home, and Green–Wood. The Supreme Court denied the plaintiffs' cross motion for summary judgment on the issue of liability on the ground that they failed to make a prima facie showing that Mack was the decedent's surviving spouse or that the remaining defendants were negligent in the disposition of the decedent's body. The Supreme Court denied the cross motion of Green–Wood for summary judgment dismissing the complaint insofar as asserted against it, and the separate cross motion of the funeral home pursuant to, inter alia, CPLR 3211(a) to

[919 N.Y.S.2d 169]

dismiss the complaint insofar as asserted against it, concluding, among other things, that neither the funeral home nor Green–Wood made a prima facie showing that they acted reasonably or in good faith in the handling of the decedent's body. The Supreme Court nevertheless granted the hospital's motion for summary judgment dismissing the complaint insofar as asserted against it, noting that the hospital was not liable by virtue of section 205.19 of the New York City Health Code (24 RCNY 205.19). In denying the cross motions of the plaintiffs, the funeral home, and Green–Wood, the Supreme Court nonetheless determined that the denials were with leave to renew all dispositive motions upon the completion of appropriate discovery on the issue of whether Mack or Brown was the decedent's surviving spouse.

Green–Wood appeals, as limited by its brief, from so much of the order as denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it. None of the other parties has appealed or cross-appealed. For the reasons discussed below, we reverse the order insofar as appealed from, grant Green–Wood's cross motion for summary judgment dismissing the complaint insofar as asserted against it, and, upon searching the record, award summary judgment dismissing the complaint insofar as asserted against the funeral home as well.

II. Legal Analysis

The common-law right of sepulcher gives the next of kin the absolute right to the immediate possession of a decedent's body for preservation and burial or other disposition of the remains, and damages may be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent's body ( see Shipley v. City of New York, 80 A.D.3d 171, 908 N.Y.S.2d 425; Melfi v. Mount Sinai Hosp., 64 A.D.3d 26, 31, 877 N.Y.S.2d 300). If a violation of the right of sepulcher is established, the next of kin [82 A.D.3d 138] may be compensated for the emotional...