Stanley v. City of N.Y.

• Decision Date: 23 December 2020
• Docket Number: 151098/2020
• Citation: 141 N.Y.S.3d 662,71 Misc.3d 171
• Parties: Nakemia STANLEY, Plaintiff, v. The CITY OF NEW YORK, Office of the Chief Medical Examiner, Office of the Chief Medical Examiner Deputy Director of Forensic Investigations Aden Naka, Office of the Chief Medical Examiner Special Counsel, Litigation and Policy Leslie Kamelhar, Defendants.
• Court: New York Supreme Court

71 Misc.3d 171

141 N.Y.S.3d 662

Nakemia STANLEY, Plaintiff,

v.The CITY OF NEW YORK, Office of the Chief Medical Examiner, Office of the Chief Medical Examiner Deputy Director of Forensic Investigations Aden Naka, Office of the Chief Medical Examiner Special Counsel, Litigation and Policy Leslie Kamelhar, Defendants.

151098/2020

Supreme Court, New York County, New York.

Decided on December 23, 2020

For Plaintiff Nakemia Stanley: J. Remy Green, Esq., Jessica Massimi, Esq.

For Defendants: James E. Johnson, Corporation Counsel of the City of New York, Kathleen M. Beck, Esq., Assistant Corporation Counsel

Dakota D. Ramseur, J. Plaintiff Nakemia Stanley commenced this action against Defendants City of New York, Office of the Chief Medical Examiner ("OCME") and various OCME employees (collectively the "City" or, when referring only to the latter, the "individual Defendants") for loss of sepulcher, intentional and negligent infliction of emotional distress, negligence, due process and equal protection violations, and New York City Human Rights Law violations stemming from the City's alleged failure to comply with Decedent Shawn Kamari Frederick, Sr.'s desire for Plaintiff to control the disposition of Frederick's remains. The City moves, pursuant to CPLR 3211(a)(7), to dismiss the Complaint for failure to state a claim. Plaintiff opposes. For the reasons below, after oral argument and additional submissions,¹ the City's motion is granted in part solely to the extent that the intentional and negligent infliction of emotional distress claims are dismissed.

BACKGROUND

Frederick, a transgender Muslim man, wished, upon his death, to avoid any bodily alterations such as autopsy or preservation, as well as misgendering or reference to Frederick's "deadname" (Complaint ¶¶ 9-11).² Frederick, whose family rejected and denied his transgender and Muslim identities, did not want his family to "have any access to or control over his body after death"; (Complaint ¶¶ 9-10). To effectuate these wishes, on November 6, 2018, Frederick executed a Department of Health DOH-5211 "Appointment of Agent to Control Disposition of Remains" form designating Plaintiff, Frederick's partner, to control the disposition of Frederick's body after death and setting forth one special directive: Frederick's "wish to be cremated" (NYSCEF 11 /City Exh C [the "5211"]; Complaint ¶¶ 5-9).

Frederick passed away on November 26, 2018 (Complaint ¶ 12). That day, Plaintiff's prior counsel provided the 5211 to the hospital and, upon transfer of Frederick's body to OCME later that day, by fax to OCME's legal department, which has never disputed the receipt or validity of the 5211 (Complaint ¶¶ 29-34; NYSCEF 12 [the "OSC"] at p 19; City Reply Affirm ¶ 3 [citing as "undisputed" that OCME received the 5211 on November 26]). Plaintiff began scheduling Frederick's cremation for the first days of December 2018, at First Avenue Funeral Services ("First Avenue Funeral"; Complaint ¶ 35). OCME performed an autopsy on November 28, 2018 (City Reply Affirm ¶ 3).

On or about November 30, 2018, Plaintiff became aware that OCME had released Frederick's body to his biological family and Brooklyn Funeral Home & Cremation Service ("Brooklyn Funeral Home"), the biological family's chosen funeral home (Complaint ¶¶ 36, 39; OSC at p 24). Plaintiff learned from a Facebook post that Frederick's biological family had scheduled a Christian funeral service, with a public viewing, for December 2, 2018, and that the invitation referred to Frederick by his dead name and with incorrect pronouns (Complaint ¶ 38; OSC at p 24). At or about the same time that Plaintiff learned what had happened, Plaintiff, eight months pregnant with twins at the time, began to experience contractions and had to be taken to the hospital by ambulance (Complaint ¶¶ 12, 28, 41-42). Plaintiff lost the pregnancy (Complaint ¶ 62).

After Plaintiff's prior counsel contacted OCME, OCME arranged to transport Frederick's body from Brooklyn Funeral Home to an OCME morgue (Complaint ¶ 43). Having re-secured the remains, OCME nevertheless placed a "hold" on Frederick's body (Complaint ¶ 44). From November 30, 2018 to December 11, 2018, Plaintiff's prior counsel repeatedly contacted the individual Defendants, who insisted that Plaintiff had to obtain the biological family's consent before Frederick's remains could be released and discouraged litigation (Complaint ¶¶ 48-49, 53 ["Don't file the OSC yet."]). On December 11, 2018, Plaintiff filed the OSC in Supreme Court, New York County (Index No. 101795/2018 [Kotler, J.]). The parties appeared on December 18, 2018 and resolved the order to show cause by stipulation which granted Plaintiff control over Frederick's remains and directed OCME to release his remains to a funeral home of Plaintiff's choosing (Complaint ¶¶ 55-56). Frederick was cremated on December 26, 2018 (Complaint ¶ 56).

Plaintiff subsequently commenced this action, alleging in sum and substance that despite taking every necessary procedural step to effectuate their wishes, Frederick's wish to entrust his remains to his chosen family, rather than to his biological family, was not respected as it would have been had Frederick been cisgender. Specifically, Plaintiff alleges five causes of action: (1) violation of Plaintiff's right to sepulcher; (2) negligent and intentional infliction of emotional distress; (3) violation of the New York City Human Rights Law; (4) violation of Plaintiff's federal constitutional due process rights; (5) violation of Plaintiff's federal constitutional equal protection rights (Complaint ¶ 70, et seq. ). Plaintiff also seeks punitive damages (id. ).

The City now moves, pursuant to CPLR 3211(a)(7), to dismiss the entire Complaint for failure to state a cause of action. Plaintiff opposes.

DISCUSSION

In considering a motion to dismiss the court must construe the complaint liberally and accept the pleaded facts as true to determine whether the facts fit into any cognizable legal theory (see Leon v. Martinez , 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ; P.T. Bank Cent. Asia, N.Y. Branch v. ABN AMRO Bank N.V., 301 A.D.2d 373, 375, 754 N.Y.S.2d 245 [1st Dept. 2003] ). The court must accept not only the material allegations of the complaint, but also whatever can be reasonably inferred therefrom in favor of the pleader (see P.T. Bank , 301 A.D.2d at 375, 754 N.Y.S.2d 245 ).

I. Loss of sepulcher

The City argues that its refusal to release Frederick's body pending resolution of the dispute between Plaintiff and Frederick's biological family was mandated by statute, and thus cannot be the basis for a loss of sepulcher claim (NYSCEF 8 [City Affirm ] ¶ 6). In opposition, Plaintiff argues that she had the "highest possible priority right to the possession of the decedent's remains," and therefore that the City's release of Frederick's body to his biological family, and later the hold on Frederick's body preventing further release to Plaintiff, were unjustified.

"The common-law right of sepulcher affords the deceased's next of kin an "absolute right to the immediate possession of a decedent's body for preservation and burial ..., and damages may be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent's body" ( Shipley v. City of N.Y. , 25 N.Y.3d 645, 653, 16 N.Y.S.3d 1, 37 N.E.3d 58 [2015], citing Mack v. Brown , 82 A.D.3d 133, 137, 919 N.Y.S.2d 166 [2d Dept. 2011] ). "The right itself is less a quasi-property right and more the legal right of the surviving next of kin to find ‘solace and comfort’ in the ritual of burial" ( Shipley , 25 N.Y.3d 645, 653, 16 N.Y.S.3d 1, 37 N.E.3d 58 [2015] ; Melfi v. Mount Sinai Hosp. , 64 A.D.3d 26, 31, 877 N.Y.S.2d 300 [1st Dept. 2009] [containing lengthy discussion of history of right of sepulcher claims]). "If a violation of the right of sepulcher is established, the next of kin may be compensated for the emotional suffering and mental anguish which they experienced as a result" (see Shipley , 80 A.D.3d 171, 908 N.Y.S.2d 425 ). "In order to recover for such emotional injuries, it must be shown that the injuries were "the natural and proximate consequence of some wrongful act or neglect on the part of the one sought to be charged" ( Mack v. Brown , 82 A.D.3d 133, 138, 919 N.Y.S.2d 166 [2d Dept. 2011] ; Shipley , 25 N.Y.3d at 653, 16 N.Y.S.3d 1, 37 N.E.3d 58 ["Damages are limited to the emotional suffering, mental anguish and psychological injuries and physical consequences thereof experienced by the next of kin as a result of the interference with the right of sepulcher."]).

"To establish a cause of action for interference with the right of sepulcher, [a] plaintiff must establish that: (1) plaintiff is the decedent's next of kin; (2) plaintiff had a right to possession of the remains; (3) defendant interfered with plaintiff's right to immediate possession of the decedent's body; (4) the interference was unauthorized; (5) plaintiff was aware of the interference; and (6) the interference caused plaintiff mental anguish, which is generally presumed" ( Shepherd v. Whitestar Dev. Corp. , 113 A.D.3d 1078, 1080, 977 N.Y.S.2d 844 [4th Dept. 2014], citing PJI 3:6 ; Melfi , 64 A.D.3d 26, 877 N.Y.S.2d 300 ). The fifth and sixth elements are undisputed.

With respect to the first and second elements, PHL § 4201(a) sets forth, in descending priority, a hierarchy of individuals with the right to control the disposition of a decedent's remains, beginning with "the person designated in a written instrument executed pursuant to [PHL § 4201(3)]" ( Mack v. Brown , 82 A.D.3d 133, 138, 919 N.Y.S.2d 166 [2d Dept. 2011] [noting that the hierarchy "was established in response to the tragic events of September 11, 2001"]; see also Kijak v. Columbia Presbyt. Hosp. , 2013 WL 5299133, at *9, 2013 U.S. Dist. LEXIS 134965, at *27 [S.D.N.Y. Sep. 20, 2013] [PHL § 4201 has supplemented that right in setting forth a prioritized list of...