Weingast v. State
| Decision Date | 21 December 1964 |
| Docket Number | No. 39930,39930 |
| Citation | 254 N.Y.S.2d 952,44 Misc.2d 824 |
| Parties | Isaac WEINGAST and Nettie Alberger, Claimants, v. The STATE of New York, Defendant. Claim |
| Court | New York Court of Claims |
Talisman & Wittels, New York City; Benjamin Harmatz, New York City, of counsel, for claimants.
Louis L. Lefkowitz, Atty. Gen., Robert Schwartz, Asst. Atty. Gen., of counsel, for the State.
This is an action for damages for mental suffering which is alleged to have been inflicted on the claimants as a result of a reversal of identity which occurred between two patients at Pilgrim State Hospital.
The facts are not in dispute. On September 28, 1959, a patient known to the hospital authorities as Elizabeth Gambardella died. Steps were taken to inform Mrs. Gambardella's family; they responded by authorizing the desired autopsy and requesting burial within the hospital cemetery. This was accomplished, the body apparently receiving the rites of the Roman Catholic Church with interment in grounds consecrated to such use for communicants of that faith. There is no indication in the record that any of the family viewed the remains. Nothing further occurred in this matter until April 16, 1961, when Rose Weingast, the sister of another patient at the hospital, received a telegram stating, 'Tillie Reifer critically ill advise immediate visit'. The message was signed by Hyman S. Barahal, M.D., the hospital's Acting Director. The following day a brother, Isaac Weingast, and another sister, Nettie Alberger, who are the claimants herein, made arrangements to visit the hospital. They were conducted to the bedside of a woman under an oxygen tent whose features were obscured thereby. They were informed that the woman was their sister and had suffered a heart attack. The patient remained asleep throughout their visit of a half hour or so and they then departed, having no reason to question the identity of the patient before whom they had been taken. The following day a telephoned inquiry by Mrs. Alberger elicited the opinion of the hospital staff that the patient's condition was improved. Two weeks later four members of the family travelled by automobile to the hospital where they were directed to the woman, now no longer on oxygen therapy. All four visitors agreed the patient was not Tillie Reifer.
The four duly apprised the hospital authorities who thereupon established through investigation that Tillie Reifer had, in fact, died on September 28, 1959, had been buried under the name of Elizabeth Gambardella as heretofore described, and that the true Elizabeth Gambardella was continuing a masquerade that the two had begun for some unknown reason probably beginning at the time of an intra-hospital transfer on or about July 9, 1959. On that date the two patients were sent along with seven others from Building 12 to Building 14. In the investigation which the hospital made in April 1961, attendants who had known both patients were examined and they positively identified the living woman as Mrs. Gambardella.
The Attorney General raised objections both as to timely filing of the claim and as to a nonjoinder of parties plaintiff. If the claim is deemed to have accrued as of the date of Mrs. Reifer's death, the action is barred since the ninety-day limitation period would have begun to run on September 28, 1959 and the Notices of Intent to File a Claim were not filed until June 3, 1961. Court of Claims Act, Section 10, Subdivision 3. At trial, the claimants urged that the improper identification and its consequences constituted continuing wrongs to the claimants until the events of April and May, 1961, brought home actual knowledge thereof. The Court finds, however, that the gravamen of the action is the wrong done to the claimants' sensibilities and not that done to the deceased. No mental anguish, which is the wrong asserted (Finley v. Atlantic Transport Co., 220 N.Y. 249, 715 N.E. 715), would be inflicted until the circumstances surrounding the burial were made known to the claimants. ...
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