| Schultes v Kane |
| 2008 NY Slip Op 03271 [50 AD3d 1277] |
| April 11, 2008 |
| Appellate Division, Third Department |
| Marie Schultes, Appellant, v Duane Kane et al.,Respondents. |
—[*1] Vitanza, DiStefano & Dean, L.L.P., Norwich (Thomas A. Vitanza of counsel), for DuaneKane, respondent. Coughlin & Gerhart, L.L.P., Binghamton (Keith A. O'Hara of counsel), for Afton GlenwoodCemetery Association, Inc., respondent.
Kane, J. Appeal from an order of the Supreme Court (Dowd, J.), entered October 6, 2006 inChenango County, which, among other things, granted defendants' motions to dismiss thecomplaint.
In August 2001, approximately 30 years after plaintiff and defendant Duane Kane weredivorced, Kane had the bodies of four of their children disinterred from a plot jointly owned byplaintiff and Kane, and reinterred them in a plot he purchased near his parents' graves in the samecemetery owned by defendant Afton Glenwood Cemetery Association, Inc. The grave markerswere moved at the same time or soon thereafter. Plaintiff did not become aware that the bodieshad been moved until July 2005. Less than two months later, plaintiff commenced this actionalleging intentional infliction of emotional distress, negligent infliction of emotional distress andwrongful disinterment. Defendants moved to dismiss the complaint based upon the statute oflimitations. Plaintiff cross-moved for leave to amend her complaint to add a cause of action fordesecration of a grave, and for partial summary judgment on liability. Supreme Court granteddefendants' motions by dismissing the complaint in its entirety, and denied plaintiff's crossmotion in its entirety. Plaintiff appeals.
The statutes of limitations do not bar plaintiff's causes of action for intentional infliction[*2]of emotional distress and negligent infliction of emotionaldistress. "[A]s a general proposition, a tort cause of action cannot accrue until an injury issustained. That, rather than the wrongful act of defendant or discovery of the injury by plaintiff,is the relevant date for marking accrual" (Kronos, Inc. v AVX Corp., 81 NY2d 90, 94[1993] [citations omitted]; see Ackerman v Price Waterhouse, 84 NY2d 535, 541 [1994];Andrew Greenberg, Inc. v Svane,Inc., 36 AD3d 1094, 1099 [2007]). Because extreme emotional distress is an element ofeach of these causes of action, and plaintiff could not truthfully allege all of the elements untilshe suffered this element of injury, these causes of action did not accrue until she suffereddistress as a result of learning that her children's bodies had been disinterred (see Long v Sowande, 27 AD3d247, 249 [2006]; Dana v Oak Park Marina, 230 AD2d 204, 210 [1997]; Augeri vRoman Catholic Diocese of Brooklyn, 225 AD2d 1105, 1106 [1996]). As plaintiffcommenced the action within two months after these causes of action accrued, the statutes oflimitations had not expired (see CPLR 214 [5]; 215 [3]; Yong Wen Mo v Gee Ming Chan, 17AD3d 356, 358-359 [2005]).
Addressing plaintiff's motion for partial summary judgment, we may search the record andgrant judgment to any party without the necessity of a separate motion seeking that relief(see CPLR 3212 [b]). A cause of action for negligent infliction of emotional distressgenerally requires plaintiff "to show a breach of a duty owed to her which unreasonablyendangered her physical safety, or caused her to fear for her own safety" (Graber v Bachman, 27 AD3d 986,987 [2006]; see Miller v Chalom, 269 AD2d 37, 40 [2000]), but an "exception permitsrecovery for emotional harm to a close relative resulting from negligent mishandling of a corpse"(Johnson v State of New York, 37 NY2d 378, 382 [1975]). Nothing in the record revealsany mishandling of the bodies here, which apparently remained encased in the caskets during thedisinterment and reinterment (see Estateof LaMore v Sumner, 46 AD3d 1262, 1264 [2007]). Further, New York courts do notrecognize a cause of action for wrongful disinterment (see id. at 1263; Orlin vTorf, 126 AD2d 252, 255 [1987], lv denied 70 NY2d 605 [1987]). Accordingly,those causes of action should be dismissed on this ground.
While defendants admit that they disinterred the bodies of plaintiff's children, thoseadmissions do not establish plaintiff's entitlement to summary judgment on the issue of liabilityfor intentional infliction of emotional distress. Plaintiff's counsel conceded at oral argument, andour search of the record confirms, that there is no proof that Afton Glenwood acted with intent tocause emotional distress or reckless disregard that such distress would be caused, requiringdismissal of that cause of action as against this defendant. As against Kane, that cause of actioncannot be resolved without further development of the record.
Plaintiff was not entitled to amend her complaint to include a cause of action for desecrationof a grave. While the Court of Appeals has recognized this cause of action (see Gostkowski vRoman Catholic Church, 262 NY 320, 324 [1933]), such a cause of action accrues when thegraves are molested. Because the action here was commenced more than four years after thegraves were disturbed, plaintiff may not amend her complaint to add this time-barred cause ofaction (see Scott v Grumann-Olsen, Div. of Grumann Allied Indus., 146 AD2d 929, 930[1989]).
Peters, J.P., Carpinello, Kavanagh and Stein, JJ., concur. Ordered that the order is modified,on the law, without costs, by reversing so much thereof as granted that part of defendants'motions dismissing plaintiff's cause of action for intentional infliction of emotional distressagainst defendant Duane Kane; motions denied to said extent; and, as so modified, affirmed.