| Waterman v Weinstein Mem. Chapel |
| 2008 NY Slip Op 02576 [49 AD3d 717] |
| March 18, 2008 |
| Appellate Division, Second Department |
| Joel B. Waterman, Appellant, v Weinstein MemorialChapel et al., Respondents. |
—[*1] Murphy & Lambasie, Goshen, N.Y. (Thomas E. Humbach of counsel), for respondentsWeinstein Memorial Chapel, Seymour Weinstein, Henry Hess, and Charles Kempton. Cartafalsa, Slattery, Turpin & Lenoff, Tarrytown, N.Y. (Jill E. O'Sullivan of counsel), forrespondents Wilbert, Inc., Joseph Maladra, and Sean Schwartz. Thomas K. Moore (Carol R. Finocchio, New York, N.Y. [Mary Ellen O'Brien] of counsel),for respondent Norwalk Vault Company of Bridgeport. Flink Smith, LLC, Latham, N.Y. (Aaron R. Anderson of counsel), for respondents Tri StarPlastics Corp. and George Taber. Paul I. Marx, White Plains, N.Y., for respondents Westchester Vault Co., Inc., and AnneCook.
In an action, inter alia, to recover damages for emotional distress, the plaintiff appeals froman order of the Supreme Court, Westchester County (Smith, J.), dated May 8, 2006, whichgranted the motion of the defendants Weinstein Memorial Chapel, Seymour Weinstein, HenryHess, and Charles Kempton, the separate motion of the defendants Wilbert, Inc., Joseph Maladra,and Sean Schwartz, the separate motion of the defendant Norwalk Wilbert Vault of Bridgeport,and the separate motion of the defendants Tri Star Plastics Corp. and George Taber for summaryjudgment dismissing the complaint insofar as asserted against them, and which searched therecord and granted summary judgment dismissing the complaint insofar as asserted against theremaining defendants.[*2]
Ordered that the order is affirmed, with one bill of coststo the respondents appearing separately and filing separate briefs.
The plaintiff commenced the instant action, inter alia, to recover damages for emotionaldistress he allegedly suffered as a result of the alleged mishandling of his mother's remainsduring funeral services and interment. With respect to the plaintiff's allegations of negligent andintentional mishandling of the body, the movants, in support of their separate motions, made aprima facie showing of their entitlement to judgment as a matter of law (see Sarlo v FairchildSons, 256 AD2d 322 [1998]; cf. Massaro v O'Shea Funeral Home, 292 AD2d 349[2002]). In opposition, the plaintiff offered his deposition testimony that the casket and vaultwere defective and failed adequately to protect the remains from outside contaminants but failedto support his conclusions with evidence establishing the existence of the alleged defects or theopinion of an expert that the casket and vault would fail to protect the remains. Thus, hisconclusory allegations were insufficient to raise a triable issue of fact (see Zuckerman v Cityof New York, 49 NY2d 557, 562 [1980]).
With respect to the cause of action alleging fraud, in opposition to the defendants'establishment, prima facie, of their entitlement to summary judgment, the plaintiff failed to makea sufficient evidentiary showing to raise a triable issue as to whether the defendants mademisrepresentations (see Del Vecchio v Nassau County, 118 AD2d 615, 618 [1986];Brown v Lockwood, 76 AD2d 721, 730-731 [1980]).
The plaintiff contends that certain statutes and regulations governing the funeral homeindustry give rise to a private right of action. This argument is raised for the first time on appealand is not properly before this Court (see Pile v Grant, 41 AD3d 810, 811 [2007]).
The plaintiff's remaining contentions are without merit. Rivera, J.P., Skelos, Santucci andLeventhal, JJ., concur.