Wednesday, October 20, 2021

A Cause Of Action I Did Not Learn About In Law School

A cause of action for violation of the common law right of sepulcher was affirmed by the New York Appellate Division for the Second Judicial Department

“The common-law right of sepulcher affords the deceased’s next of kin an absolute right to the immediate possession of a decedent’s body for preservation and burial . . . , and damages may be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent’s body”

The body at issue was that of Grigoriy Gutnikov, whose daughter arranged his burial with a nonprofit corporation that provides traditional Jewish funeral services for the indigent.

There was an unexpected guest of honor

Rabbi Stephen Plafker, an employee of HFBA, presided over three funerals on April 13, 2014, including the funeral intended for the decedent, which was the third funeral. According to the plaintiff’s deposition testimony, after Plafker concluded the reading intended for the decedent at the graveside, the plaintiff allegedly noticed that the casket had a sticker with a name on it that did not match the decedent’s name. The plaintiff asked Plafker to open the casket to confirm that the body inside was that of the decedent. Plafker opened the casket and there was a woman’s body inside. According to the plaintiff, she asked Plafker where the decedent was and Plafker said he did not know. Plafker testified at his deposition that he thereafter directed that the casket from the second funeral that had occurred earlier that day be disinterred. When that casket was opened, the plaintiff identified the body as the decedent’s body. The plaintiff chose to have the decedent buried in the grave originally intended for him, and Plafker performed a second funeral service for the decedent.

On the motion to dismiss

Here, the appellants failed to establish, prima facie, that the plaintiff does not have a claim for loss of sepulcher under the facts of this case (see generally Cansev v City of New York, 185 AD3d at 895; cf. Fox v Mark, 181 AD3d at 564; Toppin v Town of Hempstead, 121 AD3d 883, 884). Viewing the evidence in the light most favorable to the plaintiff as the nonmoving party, during the funeral service and burial intended for the decedent, the plaintiff became aware that the decedent’s body was not in the casket and the decedent’s body was not located for some period of time. Accordingly, the appellants failed to establish, prima facie, that their alleged actions or inactions did not interfere with the plaintiff’s possession of the decedent’s body and her right to find “solace and comfort in the ritual of burial” (Shipley v City of New York, 25 NY3d at 653 [internal quotation marks omitted]; Zhuangzi Li v New York Hosp. Med. Ctr. of Queens, 147 AD3d 1115, 1117).

(Mike Frisch)

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