| Henderson v Kingsbrook Jewish Med. Ctr. |
| 2012 NY Slip Op 00334 [91 AD3d 720] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| Floyd W. Henderson et al., Appellants, v KingsbrookJewish Medical Center, Respondent. |
—[*1] Heidell, Pittoni, Murphy & Bach, LLP, White Plains, N.Y. (Daryl Paxson and Daniel S.Ratner of counsel), for respondent.
In an action, inter alia, to recover damages for negligence, the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), datedOctober 7, 2010, as granted that branch of the defendant's motion which was pursuant to CPLR3211 (a) (7) to dismiss the cause of action alleging a violation of the plaintiffs' right of sepulcher.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thebranch of the defendant's motion which was pursuant to CPLR 3211 (a) (7) to dismiss the causeof action alleging a violation of the plaintiffs' right of sepulcher is denied.
The plaintiffs are the children of Leroy Henderson (hereinafter the decedent), who died at theKingsbrook Jewish Medical Center (hereinafter the defendant), on March 6, 2010. The complaintalleges, inter alia, that the defendant failed to release the decedent's body to the funeral home theplaintiffs chose until March 9, 2010, despite their inquiries and efforts to obtain an earlierrelease. The defendant moved, among other things, to dismiss the complaint for failure to state acause of action (see CPLR 3211 [a] [7]). The Supreme Court granted the motion withoutexplanation. The plaintiffs appeal from so much of the order as granted that branch of the motionwhich was to dismiss the cause of action alleging a violation of the plaintiffs' right of sepulcher.We reverse the order insofar as appealed from.
As recently stated by this Court in the case of Shipley v City of New York (80 AD3d 171, 177 [2010]): "NewYork's jurisprudence has long recognized the interest of a decedent's next of kin in the remains oftheir decedent, and infringement upon that interest repeatedly has been acknowledged to beactionable (see Johnson v State of New York, 37 NY2d 378, 382 [1975]; Darcy vPresbyterian Hosp. in City of N.Y., 202 NY 259, 262-265 [1911]; Wainwright v New York City Health &Hosps. [*2]Corp., 61 AD3d 851, 852 [2009]; Estate of LaMore v Sumner, 46 AD3d1262, 1264 [2007]; Prescott vTurner, 15 AD3d 557, 558 [2005]). As frequently formulated in case law, 'thecommon-law right of sepulcher gives the next of kin the absolute right to the immediatepossession of a decedent's body for preservation and burial, and . . . damages willbe awarded against any person who unlawfully interferes with that right or improperly deals withthe decedent's body' (Melfi v MountSinai Hosp., 64 AD3d 26, 31 [2009]; see Darcy v Presbyterian Hosp., 202 NY at262; Nesbit v Turner, 15 AD3d552, 553 [2005]; Estate of Scheuerv City of New York, 10 AD3d 272, 274-275 [2004]; Booth v Huff, 273 AD2d576, 577 [2000]; Lott v State of New York, 32 Misc 2d 296, 297-298 [1962]). The rightof sepulcher is deeply rooted in many religious traditions (see Melfi v Mount SinaiHosp., 64 AD3d at 32-36) . . . [and a] claim based on a violation of the right isdesigned to compensate the next of kin for the emotional suffering and mental anguish whichthey experience from the interference with their ability to properly bury their decedent (seeMelfi v Mount Sinai Hosp., 64 AD3d at 32, 36-37; Bambrick v Booth Mem. Med.Ctr., 190 AD2d [646,] 647 [1993])." In determining a motion to dismiss a complaintpursuant to CPLR 3211 (a) (7), the court must "accept the facts as alleged in the complaint astrue, accord plaintiffs the benefit of every possible favorable inference, and determine onlywhether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84NY2d 83, 87-88 [1994]; see Nonnon vCity of New York, 9 NY3d 825, 827 [2007]). In addition, the pleading is to be "affordeda liberal construction" (Sarva v SelfHelp Community Servs., Inc., 73 AD3d 1155, 1155 [2010]).
Here, the complaint states a cause of action alleging a violation of the plaintiffs' right ofsepulcher, since the facts stated therein allege that the defendant interfered with the plaintiffs'"absolute right to the immediate possession of a decedent's body for preservation and burial" (Melfi v Mount Sinai Hosp., 64 AD3d26, 31 [2009]). Although the delay in releasing the decedent's body was not inordinate andmay ultimately be determined to have been reasonable and proper under all of the circumstances,"[w]hether [the] plaintiff can ultimately establish [his] allegations is not part of the calculus indetermining a motion to dismiss [made pursuant to CPLR 3211 (a) (7)]" (EBC I, Inc. v Goldman, Sachs & Co., 5NY3d 11, 19 [2005]; see GinsburgDev. Cos., LLC v Carbone, 85 AD3d 1110, 1111 [2011]).
Accordingly, the Supreme Court should have denied that branch of the defendant's motionwhich was pursuant to CPLR 3211 (a) (7) to dismiss the cause of action alleging a violation ofthe plaintiffs' right of sepulcher. Rivera, J.P., Roman, Sgroi and Cohen, JJ., concur.