Pastore v. Maloney's Lake Funeral Home LLC

• Decision Date: 06 August 2021
• Docket Number: Index No. 606787/2019,Cal No. 2021003750T,Mot. Seq. Nos. 003 MD,004 MotD,005 XMotD
• Citation: 2021 NY Slip Op 33476 (U)
• Parties: NANCY PASTORE, DEBRA PALMER, THOMAS O'KEEPE, and JENNIFER ALFEO, Plaintiffs, v. MALONEY'S LAKE FUNERAL HOME LLC, CATHOLIC CEMETERIES OF THE ROMAN CATHOLIC DIOCESE OFROCKVILLE CENTRE, INC., AND HOLY SEPULCHRE CEMETERY, Defendants.
• Court: New York Supreme Court

2021 NY Slip Op 33476(U)

NANCY PASTORE, DEBRA PALMER, THOMAS O'KEEPE, and JENNIFER ALFEO, Plaintiffs,
v.
MALONEY'S LAKE FUNERAL HOME LLC, CATHOLIC CEMETERIES OF THE ROMAN CATHOLIC DIOCESE OFROCKVILLE CENTRE, INC., AND HOLY SEPULCHRE CEMETERY, Defendants.

Index No. 606787/2019, Cal No. 2021003750T, Mot. Seq. Nos. 003 MD, 004 MotD, 005 XMotD

Supreme Court, Suffolk County

August 6, 2021

Unpublished Opinion

MOTION DATE 6/22/21 (003)

MOTION DATE 7/07/21(004).

MOTION DATE 7/13/21 (005).

ADJ. DATE 7/13/21.

SAMUEL GROSSMAN, ESQ., Attorney for Plaintiffs.

HURWITZ & FINE, PC, Attorney for Defendant Moloney's Lake, Funeral Home LLC.

MORRIS DUFFY ALONSO & FALEY, Attorney for Defendant Catholic Cemeteries of the Roman patholic Diocese of Rockville Center, Inc.

PRESENT: Hon. KATHY G. BERGMANN, Justice of the Supreme Court.

HON. KATHY G. BERGMANN, JUDGE.

Upon the following papers read on these e-filed motions for summary judgment: Notice of Motion/Order to Show Cause and supporting papers filed by plaintiffs, on April 27, 2021 filed by defendant Catholic Cemeteries of the Roman Catholic Diocese of Rockville Centre, Inc;, on June 3, 2021; Notice of Cross Motion and supporting papers filed by defendant Moloney's Lake Funeral Home LLC. on June 30, 2021; Answering Affidavits and supporting papers filed by defendant Catholic Cemeteries of the Roman Catholic Diocese of Rockville Centre, Inc., on June 2, 2021; filed by plaintiff on June 14, 2022 filed by plaintiffs

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on July 1, 2021; Replying Affidavits and supporting papers filed by defendant Catholic Cemeteries of the Roman Catholic Diocese of Rockville Centre. Inc. on June 22, 2021filed by plaintiffs, on July 1, 2021; Other _________ it is

ORDERED that the motion (003) by plaintiffs Nancy Pastore, Debra Palmer, Thomas O'Keefe, and Jennifer Alfeo, and the motion by (004) by defendant Catholic Cemeteries of the Roman Catholic Diocese of Rockville Centre, Inc. are consolidated for the purpose of this determination; and it is further

ORDERED that the motion by plaintiffs Nancy Pastore, Debra Palmer, Thomas O'Keefe, and Jenifer Alfeo for summary judgment in their favor on the issue of defendants' liability is denied; and it is further

ORDERED that the motion by defendant Catholic Cemeteries of the Roman Catholic Diocese of Rockville Centre, Inc. for summary judgment dismissing the complaint against it is granted in part and denied in part; and it is further

ORDERED that the cross motion by defendant Moloney's Lake Funeral Home LLC for summary judgment dismissing the complaint and cross claims against it is granted in part and denied in part.

Plaintiffs Nancy Pastore, Debra Palmer, Thomas O'Keefe, and Jennifer Alfeo commenced this action to recover for damages they allegedly sustained when the body of their father, Thomas O'Keefe (hereinafter decedent), who passed away On January 15, 2019, was buried at Holy Sepulchre Cemetery (hereinafter the cemetery), without their presence, on January 23, 2019. On January 16, 2021, decedent's family allegedly made arrangements with defendant Moloney-s Lake Funeral Home LLC, d/b/a: Moloney's Lake Funeral Home & Cremation Center (hereafter the funeral home defendant), for a graveside burial service at the cemetery, which allegedly was owned and operated by defendant Catholic Cemeteries of the Roman Catholic Diocese of Rockville Centre, Inc. (hereinafter the cemetery defendant). The parties do not dispute that decedent's grave was not prepared for his burial when his family arrived at the cemetery on the date of his funeral, that a chapel service was held at the cemetery, and that his gravesite still was not ready by the time that the chapel service! was completed. A cemetery employee and/or funeral director allegedly directed decedent's family not to wait for his grave to be prepared for his burial, but to go to lunch, and then to return to the cemetery for a service. It is undisputed that decedent's body was buried before his family returned to trie cemetery from lunch.

Plaintiffs assert claims for, inter alia, loss of sepulcher, intentional Infliction of emotional distress ("IIED"), negligent infliction of emotional distress ("NTED"), and punitive! damages. By the verified complaint, as amplified by the verified bill of particulars, plaintiffs allege, [among other things, that the funeral home defendant, by its agents, servants, and/or employees, was negligent in, inter alia, failing to timely and properly notify the cemetery defendant of decedent's funeral, failing to have an adequate system in place to notify me family of decedent's bun cemetery before his burial. Plaintiffs also allege that the cemetery defendant, by its agents, servants* and/or employees, was negligent in, inter alia, failing to have decedent's grave timely opened, and failing to direct its employees to wait Until the family conducted a graveside service before burying him, and they repeat many of the same allegations asserted against the funeral home defendant.

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Plaintiff's now move for summary judgment in their favor on the issue of defendants' liability. Plaintiffs contend, among other things, that they were deprived of their right of sepulcher, and that defendants improperly handled decedent's body. In support of their motion, plaintiffs submit, among other things, their own affidavits, arid the transcripts of the deposition testimony of Francis Moloney, Scott Kramer, Albert Pickford, and Yanira Figueroa.

The cemetery defendant also moves for summary-judgment dismissing the complaint against it. The cemetery defendant argues, among other things, that it did not violate plaintiffs' right of sepulcher, that it acted in good faith in performing decedent's burial service, and that: t did not negligently or intentionally inflict emotional distress on plaintiffs. It also contends that plaintiffs are not entitled to an award of punitive damages. In support of its motion, the cemetery defendant submits, among other things, the transcripts of the deposition testimony of plaintiffs, Moloney, Kramer, Pickford, and Figueroa.

The funeral home defendant cross-moves for summary judgment dismissing the complaint and cross claims against it. The funeral home defendant argues, in part, that it did not violate plaintiffs' right Of sepulcher, and that it performed decedent's burial services in good faith.; It also argues that it did not negligently or intentionally inflict emotional distress on plaintiffs, and that plaintiffs are not entitled to an award of punitive damages. In support of its cross motion, the funeral home defendant submits, among other things, the transcripts of the deposition testimony of plaintiffs:, Moloney, Kramer, Pickford, and Figueroa.

At the outset, the Court reached the merits of plaintiffs' summary judgment motion. While the Court does not condone plaintiffs' failure to submit a separate statement of material facts with their motion, as required by Uniform Rules for Trial Courts (22 NYCRR) § 2028-g, the Court exercises its discretion to disregard such omission (see CPLR 2001). Notably, defendants also seek summary judgment in their favor on the issue of their liability, and plaintiffs submit a counter statement to the statement of material facts submitted by the cemetery defendant. Contrary !to the contentions of the cemetery defendant, plaintiffs submitted a complete set of the pleadings for this action, as required by CPLR 3212 (b), and their motion was not procedurally defective.

At Pastore's deposition, she testified that her family discussed the details of decedent's arrangements, including holding a graveside service, with Scott Kramer before the date of his funeral, which is further confirmed by her affidavit. It is undisputed that Kramer was a funeral director employed by the funeral home defendant all relevant times. Pastore testified that Kramer ensured the family that he would make arrangements with the cemetery. She also testified that on the date of decedent's funeral, after the family arrived at the cemetery, Kamer told her and her siblings that a graveside service could not be performed, since his grave was not ready for his burial. Kramer allegedly had no explanation for the grave not being prepared. Pastore elaborated th it Kramer asked multiple times whether a chapel service could be performed instead of a graveside service, and she confirmed the same in her affidavit, By her affidavit, - Pastore contends that one of the funeral directors suggested that the family proceed to their planned lunch, and that the funeral would be completed when they returned. She testified that she never was told when she was expected to return to the cemetery from lunch before she left for lunch.

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Pastore also testified that her family remained at the restaurant, located approximately 20 minutes away from the cemetery, for approximately 114 to 2 hours. She further testified that she did not remember whether she received any calls from the funeral home, and that she did not know whether anyone else spoke to the funeral home, while the group was at lunch. Although Pastore testified that Nancy Handler, who is her aunt, and Yanira Figueroa, who is her friend, informed her that the cemetery workers ended work at 2:30 p.m., and that they were not going to wait for foe group to return to bury decedent, by her affidavit, she later denied that anyone told her when the cemetery workers left for the day. Pastore testified that she never directed foe funeral home or cemetery for continue with decedent's burial, and that she did not law of anyone who directed that the burial proceed, while her family was at lunch. By her affidavit, she further insists that she did not give permission anyone to bury her father before holding a graveside service, and she avers that she was never told by the cemetery or funeral director that the chapel service was to be held in lieu of a graveside service....