| Estate of LaMore v Sumner |
| 2007 NY Slip Op 10431 [46 AD3d 1262] |
| December 27, 2007 |
| Appellate Division, Third Department |
| Estate of Malcolm E. LaMore, Also Known as Michael LaMore andMack LaMore, et al., Appellants, v Joan Sumner et al., Respondents. |
—[*1] Miller, Mannix, Schachner & Hafner, L.L.C., Glens Falls (Cathi L. Radner of counsel), forJoan Sumner, respondent. Costello, Cooney & Fearon, P.L.L.C., Albany (Nichole M. Marlow of counsel), for Jay T.Jillson and another, respondents. John R. Winn, Granville, for North Granville Cemetery Association, respondent.
Rose, J. Appeals from an order and an amended order of the Supreme Court (Krogmann, J.),entered September 21, 2006 in Washington County, which, among other things, granted certaindefendants' cross motions for summary judgment dismissing the complaint.
Decedent's sister, defendant Joan Sumner, handled all aspects of his burial with theacquiescence of his son, plaintiff Daniel E. LaMore, who resided some distance away in NewHampshire. Sumner made the arrangements through defendant Jay T. Jillson and defendantJillson Funeral Home, Inc. (hereinafter collectively referred to as Jillson). When she wasinformed that there was no room in the LaMore family burial plot at the cemetery operated bydefendant North Granville Cemetery Association (hereinafter Granville) and, thus, she could notcarry out her plan to bury decedent with his family, Sumner purchased another plot in theGranville cemetery. Decedent was interred in the alternate plot and LaMore attended the funeralservices. Some months later, Sumner learned that there had been room in the family plot all [*2]along, and she asked Jillson and Granville to rectify their error.Decedent's entire burial vault was then disinterred and reinterred in the family plot. Learning ofthis change only after it occurred, the estate, by LaMore, and LaMore individually commencedthis action against defendants alleging that the disinterment had violated their rights. They soughtmoney damages for LaMore's emotional distress and permission to remove decedent's remains toa cemetery in New Hampshire at defendants' expense. On cross motions for summary judgment,Supreme Court permitted plaintiffs to move the remains to New Hampshire at their own expenseand otherwise dismissed the complaint.
On their appeal, plaintiffs acknowledge that we do not recognize a cause of action forwrongful disinterment (see Orlin v Torf, 126 AD2d 252, 255 [1987], lv denied 70NY2d 605 [1987]). They allege instead that defendants have violated their common-law right ofsepulcher (see generally Emeagwali vBrooklyn Hosp. Ctr., 11 Misc 3d 1055[A], 2006 NY Slip Op 50221[U], *4 [2006]).Such a cause of action, however, seeks to assure the right of the decedent's next of kin to haveimmediate possession of the body for preservation and burial, and it affords damages only whenthere has been interference with that right (see Darcy v Presbyterian Hosp. in City ofN.Y., 202 NY 259, 262 [1911]; Plunkett v NYU Downtown Hosp., 21 AD3d 1022, 1022-1023[2005]; Nesbit v Turner, 15 AD3d552, 553 [2005]; Booth v Huff, 273 AD2d 576, 577 [2000]; see also Augeri vRoman Catholic Diocese of Brooklyn, 225 AD2d 1105, 1106 [1996]). There was noviolation of this right here because LaMore acceded to decedent's initial burial as arranged bySumner and did not seek possession of the remains until much later.
Plaintiffs also allege that Granville breached the statutory duty owed to them by failing toobtain LaMore's consent to disinterment as provided in N-PCL 1510 (e). Again, however, theyfail to state a cognizable claim for money damages. LaMore's claim of negligent infliction ofemotional distress " 'requires a showing that defendants' conduct unreasonably endangeredplaintiffs' physical safety or, as exceptions to this rule, that untruthful information regardingdeath was transmitted or that a corpse was negligently mishandled' " (Hart v Child's NursingHome Co., 298 AD2d 721, 723 [2002], quoting Dobisky v Rand, 248 AD2d 903,905 [1998]). There is no allegation here that decedent's body, which remained encased in theburial vault, was mishandled in any way by anyone during disinterment or reinterment. Nor doesa search of this record reveal any special circumstances that might reasonably be characterized asan act of desecration or otherwise give rise to "an especial likelihood of genuine and seriousmental distress" (Johnson v State of New York, 37 NY2d 378, 382 [1975]; cf.Gostkowski v Roman Catholic Church, 262 NY 320, 323 [1933]; Massaro v O'SheaFuneral Home, 292 AD2d 349, 351 [2002]).
To the extent that Granville's failure to obtain LaMore's consent may have deprived him ofan opportunity to exercise control over decedent's remains, his right to do so was adequatelyvindicated by the court order permitting him to move the remains to New Hampshire. Inasmuchas plaintiffs never sought to simply have decedent's remains returned to the alternate plot, theyfailed to show any causal connection between the complained of disinterment and the expense oflater moving the remains to a different cemetery in another state. Thus, that expense is not anitem of damages recoverable for Granville's failure to obtain consent.
We also find no merit in plaintiffs' contention that Jillson and Granville violated PublicHealth Law §§ 4216, 4218 and 4144. As is relevant here, sections 4216 and 4218prohibit the removal of a body from its place of interment "from malice or wantonness." Giventhat the [*3]purpose of the disinterment here was to rectify anerror and relocate decedent's remains to the family plot, the record shows no malice orwantonness on the part of anyone. Section 4144 is also inapplicable because it requires a permitprior to burial only in the first instance (see Public Health Law § 4144 [1]) and,again, plaintiffs do not challenge decedent's initial interment.
Cardona, P.J., Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the order and amendedorder are affirmed, with one bill of costs.