Martin v. Disability

• Decision Date: 06 October 2014
• Docket Number: Index No. 64948/2013
• Citation: 2014 NY Slip Op 33021 (U)
• Parties: TUWANDA C. MARTIN, as Administratrix of the Estate of JOHN ALVIN MARTIN II, deceased, JOHN MARTIN, EMMA MARTIN, and TUWANDA C. MARTIN, Individually, Plaintiff. v. ABILITY BEYOND DISABILITY and PHILIP E. CONATY, Defendants.
• Court: New York Supreme Court

2014 NY Slip Op 33021(U)

TUWANDA C. MARTIN, as Administratrix of the Estate of JOHN ALVIN MARTIN II, deceased, JOHN MARTIN, EMMA MARTIN, and TUWANDA C. MARTIN, Individually, Plaintiff.
v.
ABILITY BEYOND DISABILITY and PHILIP E. CONATY, Defendants.

Index No. 64948/2013

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER

October 6, 2014

NYSCEF DOC. NO. 51

Commence the statutory time for appeals as of right (CPLR 5513[a]), you are advised to servo a copy of this order, with notice of entry, upon all parties.

PRESENT: HON. WILLIAM J. GIACOMO, J.S.C.

DECISION & ORDER

The following papers numbered 1 to 10 were considered on defendants' motion to dismiss and plaintiffs cross motion to strike Philip Conaty's affirmation in support of the defendants' motion

PAPERS NUMBERED
Notice of Mation/Affidavits/Exhibits	1-3
Notce of Cross Motion/ArTidavits/Exhiblts/Memo of Law	5-8
Defendants' Affidavits Opposition to the Cross Motion	9
Defendants' Reply	10

FACTUAL AND PROCEDURAL BACKGROUND

In 1985, at the age of 15 John Martin II suffered a traumatic brain injury rendering him Incapacitated, By order dated March 3, 1987. defendant Philip E. Conaty was appointed guardian of John.

On November 3, 2012, while a resident of defendant Ability Beyond Disability ("the facility"), John died. According to Conaty, he attempted to contact John's family but did not have updated contact information. Thereafter, on November 9, 2012, at Conaty's direction

Page 2

John was buried at Oakwook Cemetery, Yonkers, New York. Within a week of the funeral plaintiff Emma Martin, John's mother, called the facility and was advised of her son's death, According to defendants, thereafter they worked with plaintiffs to disinter John and move his remains to a cemetery of the family's choosing in Monticello on or about November 26, 2012.

On September 24, 2013, plaintiffs commenced this action seeking damages from both defendants on a claim of loss of sepulcher and against Conaty, individually., seeking money damages for his failure to comply with provisions of Article 81 of the Mental Hygiene Law. In the complaint, plaintiffs allege, among other things, that Conaty failed to notify them of John's death, failed to allow John to have the greatest amount of independence in light of his limited functioning failing to consult with the family about his care, failing to visit with John at least 4 times per year, and by failing to file annual reports Plaintiffs claim these violations of the Mental Health Law resulted in their suffering emotional damages.

Defendant Conaty moves to dismiss the complaint...