| Dixon v City of New York |
| 2010 NY Slip Op 06775 [76 AD3d 1043] |
| September 28, 2010 |
| Appellate Division, Second Department |
| Monique Dixon et al., Respondents, v City of New York etal., Appellants. |
—[*1] The Cochran Firm and Weitz, Kleinick & Weitz, LLP (Pollack, Pollack, Isaac & De Cicco,New York, N.Y. [Brian J. Isaac and Jillian Rosen], of counsel), for respondents.
In an action, inter alia, to recover damages for violation of the right of sepulcher andnegligent infliction of emotional distress, the defendants appeal, as limited by their brief, from somuch of an order of the Supreme Court, Queens County (Kerrigan, J.), entered March 4, 2009, asdenied that branch of their motion which was to dismiss so much of the complaint as alleged aviolation of the right of sepulcher and related claim for negligent infliction of emotional distressfor failure to timely serve a notice of claim.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiffs seek to recover damages for, among other things, violation of the right ofsepulcher and negligent infliction of emotional distress based on, inter alia, certain actions takenby personnel of the defendant Office of Chief Medical Examiner of the City of New York inconnection with the autopsy of their deceased son. The plaintiffs contend, among other things,that their son's body was returned to them after the autopsy without the brain and certain otherorgans and/or body parts, a circumstance which the plaintiffs did not discover until their receiptof the autopsy report months after the autopsy and burial of the decedent.
Contrary to the defendants' contention, the claim with respect to so much of the complaint asalleged a violation of the right of sepulcher and related claim for negligent infliction of emotionaldistress in this case did not arise, and the 90-day period within which to serve a notice of claim inthis action pursuant to General Municipal Law § 50-e (1) (a) did not commence running,on the date of the autopsy. Rather, they accrued at the time the plaintiffs became aware of thedefendants' actions and suffered mental anguish as a result (see Melfi v Mount Sinai Hosp., 64 AD3d 26, 32-40 [2009]; Schultes v Kane, 50 AD3d 1277,1278 [2008]; Long v Sowande, 27AD3d 247, 249 [2006]; Yong WenMo v Gee Ming Chan, 17 AD3d 356, 358-359 [2005]; Dana v Oak Park Marina,230 AD2d 204, 209-210 [1997]). Accordingly, under the circumstances of this case, theplaintiffs' notice of claim with respect to those portions of the complaint was timely served. Wenote that our decision in Cally v NewYork Hosp. [*2]Med. Ctr. of Queens (14 AD3d 640[2005]) is not to the contrary, since the claim in that case was untimely under any of the accrualdates proffered by the parties, and we rejected therein the contention that the conduct at issue inthat case constituted a continuing wrong.
The defendants' remaining contention that the complaint was subject to dismissal on theground of governmental immunity is without merit (see Shipley v City of New York,— AD3d —, 2010 NY Slip Op 06786 [2010] [decided herewith]). Mastro, J.P.,Florio, Belen and Roman, JJ., concur.