Opinion
33079/08.
Decided August 28, 2009.
Plaintiffs were represented by Bruce S. Reznick, P.C. Defendant Robert Benjamin Funeral Home was represented by Scott G. Cerbin, LLC. Defendant Green-Wood Cemetery Mausoleums Crematory was represented by Brian V. Connor, Esq. of Hammill, O'Brien, Croutier, Dempsey, Pender Koehler, P.C. Defendant New York Methodist Hospital was represented by Kevin R. Natale, Esq. of Bartlett, McDonough, Bastone Monaghan, LLP.
Although not all supported by evidence in admissible form on the four pending motions, certain facts are not in dispute. On November 2, 2008, while under the care of defendant New York Methodist Hospital, Joseph F. Mack died at the age of 68 years. On November 5, his body was released by the Hospital to defendant Benjamin E. Robinson Funeral Director, Inc. s/h/a Robert Benjamin Funeral Home, which delivered it to defendant Green-Wood Cemetery s/h/a Green-Wood Cemetery Mausoleums Crematory. On November 6, the body was cremated by Green-Wood. Direction for the release and delivery of Mr. Mack's body, as described, and for its cremation, was given by defendant Regina Brown, who presented herself as Mr. Mack's wife.
The Verified Complaint alleges that plaintiff Shirley Major Mack is the "surviving spouse" of Joseph Mack, since at the time of Mr. Mack's "alleged marriage" to defendant Brown, he was "still legally married" to Plaintiff; that plaintiffs Elaine Mack, Brenda Mack, Danilo Mack, Keisha Mack, and Letoya Mack "are the issue" of Joseph Mack; that Defendants "without any legal basis or authority and without the consent of the plaintiffs or any of them, caused deceased's body to be cremated"; and that, in so doing, Defendants' "wilful, wanton, wrongful, negligent, reckless and careless conduct" caused Plaintiffs "severe and permanent emotional distress, anxiety and injuries." (Verified Complaint, ¶¶ 8-10, 21-22.)
Defendant Robinson moved first, seeking dismissal pre-answer pursuant to CPLR 3211 (a) (1), (a) (3), and (a) (7.) Plaintiffs and defendants New York Methodist Hospital and Green-Wood Cemetery followed, seeking summary judgment pursuant to CPLR 3212. Plaintiffs' motion was not directed against Green-Wood, because at the time it was made Green-Wood had not yet answered; and, although Plaintiffs' motion was directed against Robinson, that defendant too had not answered. For that reason alone, a motion for summary judgment against those Defendants was premature. ( See CPLR 3212 [a]; Enriquez v Home Lawn Care Landscaping, Inc., 49 AD3d 496, 497 [2d Dept 2008].)
Central to Plaintiffs' motion — indeed, the only proof proffered in support — is what purports to be a copy of a Certificate of Marriage Registration, showing that, on July 14, 1980, Joseph Freddy Mack and Shirley Majors were married. (No explanation is provided for the discrepancy between Plaintiff's name in the Verified Complaint and her name as it appears in the Certificate.) Similarly, Defendants rely in part on what purports to be a copy of a Certificate of Marriage Registration, showing that, on November 5, 2007, Joseph Mack and Regina Brown were married. Contrary to the contention of defendant Green-Wood, neither document is entitled to the prima facie significance given to "[a]n original certificate of a marriage . . . or the original entry thereof" prescribed by CPLR 4526. Nor are the documents rendered admissible in accordance with CPLR 4540 or Domestic Relations Law § 14-a. None of the parties, however, object to admissibility.
"It is well established that the common-law right of sepulcher gives the next of kin the absolute right to the immediate possession of a decedent's body for preservation and burial, and that damages will be awarded against any person who unlawfully interferes with that right, or improperly deals with the decedent's body." ( Melfi v Mount Sinai Hospital , 64 AD3d 26 , 31 [1st Dept 2009]; see also Finley v Atlantic Transport Co., 220 NY 249, 258 [1917] ["The plaintiff had a legal right to the possession of the body for burial and any unlawful interference with that right was an actionable wrong."]; Darcy v Presbyterian Hospital, 202 NY 259, 262 [1911] ["the right to the possession of a dead body for the purpose of preservation and burial belongs to the surviving husband or wife or next of kin, in the absence of any testamentary disposition"].) "[F]or a right of sepulcher to accrue 1) there must be interference with the next of kin's immediate possession of decedent's body and 2) the interference has caused mental anguish, which is generally presumed." ( Melfi v Mount Sinai Hospital, 64 AD3d at 39.) "Interference can arise either by unauthorized autopsy . . ., or by disposing of the remains inadvertently . . ., or . . . by failure to notify the next of kin of the death." ( Id.)
Although cases have spoken of a "quasi-property right" in the body, which might suggest liability for interference without fault, it now seems clear that the interest that is protected is freedom of the next of kin from mental and emotional distress. ( See Colavito v New York Donor Network, Inc. , 8 NY3d 43 , 50-53; Johnson v State of New York, 37 NY2d 378, 382; Melfi v Mount Sinai Hospital, 64 AD3d at 34-38.) It also seems clear that the right of action is based upon fault. ( See id. at 39-40; Bhupsingh v Long Island Cremation Co., 282 AD2d 491, 492 [2d Dept 2001]; Booth v Huff, 273 AD2d 576, 577 n3 [3d Dept 2000] ["plaintiffs have the burden of demonstrating that they had a right to the remains and that the interference with that right was improper or unlawful"]; Estate of Finn v City of New York, 76 Misc 2d 388, 389-91 [App Term, 1st Dept 1973].)
As to the persons entitled to control the disposition of remains, the common law right of sepulcher has been supplemental by Health Code Regulations ( see Nesbit v Turner , 15 AD3d 552 , 553 [2d Dept 2005]; Matter of Caseres v Ferrer , 6 AD3d 433 , 433-34 [2d Dept 2004]), and now by statute ( see Public Health Law § 4201.) Effective August 2, 2006, the statute specifies "in descending priority" the persons who "shall have the right to control the disposition of the remains of [a] decedent"; first priority is given to "the person designated in a written instrument executed pursuant to the provisions" of the statute, followed by "the decedent's surviving spouse" or "surviving domestic partner." ( See Public Health Law § 4201 [a].) The statute also provides that "[a] person acting reasonably and in good faith, shall not be subject to any civil liability for . . . disposing of a decedent's remains if done with the reasonable belief that such disposal is consistent with this section." ( Id., § 4201 [6].)
In order for Plaintiffs to succeed on their motion, therefore, they must establish prima facie that plaintiff Shirley Major Mack is Joseph Mack's "surviving spouse," and that Defendants did not act "reasonably and in good faith" in disposing of Mr. Mack's body at the direction of defendant Regina Brown as "surviving spouse." Alternatively, Plaintiffs who are alleged to be the "issue" of Joseph Mack could show that they are one or more of the persons designated by the statute to control the disposition of his remains and that Ms. Brown is not the "surviving spouse," but neither Plaintiffs nor any of the Defendants takes any notice of the "issue" in their respective submissions on these motions.
Plaintiffs' burden may be complicated by long-standing authority that "[i]n so far as the widow is concerned, the law is clear that a wife from whom the decedent was separated does not have the right of a widow concerning his remains." ( Matter of Solomon, 196 Misc 2d 599, 600 [Sup Ct, Nassau County 2003] [ quoting Feller v Universal Funeral Chapel, 124 NYS2d 546, 550 [Sup Ct, NY County 1953].) At least one court has held that the term "surviving spouse" in the statute governing the disposition of remains incorporates this caselaw. ( See Maurer v Thibeault , 20 Misc 3d 631 , 634 [Sup Ct, Cortland County 2008].) But the question was not passed on by any appellate court before the statute was passed, and not all trial level courts agreed that a spouse separated from the decedent had no rights as to disposition of the decedent's remains ( see Matter of Estate of Barner, 50 Misc 2d 517, 520-23 [Surr Ct, Broome County 1966].) Also, it might well be that the Legislature intended to provide bright-line rules to be followed by those responsible for the disposition of remains, and that the purpose would be undermined by requiring an examination of the relationship between the decedent and the spouse.
In any event, none of the parties take any note of the question, and, therefore, do not address it. There is no evidence on any of the motions as to the relationship between Joseph Mack and plaintiff Shirley Major Mack, or that between Mr. Mack and defendant Regina Brown.
What has been said so far requires denial of Plaintiffs' motion. The motion is based exclusively on the contention that, since the marriage between plaintiff Shirley Major Mack and Joseph Mack had not been dissolved before his death, she is his "surviving spouse," and was entitled to determine the disposition of his remains. No showing is made, however, that any of Defendants was at fault at following the direction of defendant Regina Brown, who held a Certificate of Marriage naming her as Joseph Mack's wife. For this reason alone, the motion must be denied.
The Court must also note that Plaintiffs do not in any event establish prima facie that Shirley Major Mack is the surviving spouse of Joseph Mack.
"A marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living" unless the former marriage has been annulled or dissolved. ( See Domestic Relations Law § 6; Johnson v Johnson, 270 AD 811, 812 [2d Dept], aff'd 295 NY 477; Mc Carthy v Higgins, 2000 US Dist LEXIS 1296, * 4 [SDNY].) "[W]here, as here, two competing putative spouses have come forth with adequate proof establishing the existence of their respective matrimonies, the law presumes that it is the second marriage which is valid and that the first marriage was dissolved by death, divorce or annulment"; it is the first spouse's "burden to prove that the more recent marriage of decedent to [the second spouse] was invalid due to the continued existence of her own marriage to decedent." ( Matter of Gomez v Windows on the World, 23 AD3d 967, 969 [3d Dept 2005]; see also Matter of Seidel v Crown Indus., 132 AD2d 729, 730 [3d Dept 1987]; Matter of Estate of Bihanskyi, 55 AD2d 836, 837 [4th Dept 1976]; Fishman v Fishman, 48 AD2d 876, 877 [2d Dept 1975].)
"[T]he presumption in favor of the validity of the second marriage is a powerful one, requiring strong and satisfactory proof to the contrary from one who would attack it even though this might require the proof of a negative." ( Matter of Brown, 40 NY2d 938, 939 [internal quotation marks and citations omitted]; see also Lockhart v Hempstead General Hospital, 274 AD2d 378, 378 [2d Dept 2000].) "Minimally, this could have been accomplished via a search of court records in the county where decedent resided during the period between the two marriages." ( Matter of Seidel v Crown Indus., 132 AD2d at 730; see also Matter of Brown, 40 NY2d at 939; Matter of Gomez v Windows on the World, 23 AD3d at 970 ["record evidence indicating that no divorce action involving decedent or (the first spouse) has been commenced anywhere within New York City"]; Matter of Estate of Bihanskyi, 55 AD2d at 837 ["no affirmative proof was obtained with respect to the first marriage not being dissolved"]; Metropolitan Life Ins. Co. v Jackson, 896 F Supp 318, 321 [SDNY 1995].) "Once the presumption of validity which attaches to a second marriage has been overcome by sufficient evidence in the record, the burden of proving that the decedent was competent to enter the second marriage then shifts to the second [spouse]." ( Matter of Estate of Bihanskyi, 55 AD2d at 837.)
Plaintiffs offer no affirmative proof that would rebut the presumption of validity that attaches to Joseph Mack's marriage to defendant Regina Brown. The Verified Complaint is not verified by plaintiff Shirley Major Mack, and even though generally a verified pleading might be used as an affidavit ( see CPLR 105 [u]), there is no showing here that the person who signed the Verified Complaint, one of Mr. Mack's "issue," has personal knowledge as to the status of his marriage to Shirley Major Mack. The Verified Complaint, moreover, says nothing about annulment or divorce; rather it alleges only in conclusory fashion that "at the time of the alleged marriage" between Joseph Mack and defendant Brown, he was "still legally married" to Shirley Major Mack. Although "Shirley Mack" submits a Supplemental Affidavit, it only addresses an allegation by defendant Robinson that all Plaintiffs attended the funeral service, and says nothing about the status of her marriage to Mr. Mack.
Plaintiffs have, therefore, failed to make a prima facie showing that they are entitled to judgment as a matter of law. Since Plaintiffs show neither that plaintiff Shirley Major Mack was Joseph Mack's surviving spouse nor that Defendants were negligent in disposing of his remains at the direction of defendant Regina Brown, their motion must be denied.
Turning to Defendants' respective motions, any one of them may shift the burden to Plaintiffs by evidence in admissible form that prima facie Regina Brown is the surviving spouse of Joseph Mack, or even if she is not, that prima facie Defendant acted reasonably and in good faith in following her direction in dealing with Mr. Mack's remains.
Defendant New York Methodist Hospital establishes both. In light of the "strong public policy favoring the validity" of the marriage between Mr. Mack and Regina Brown ( see Matter of Seidel v Crown Indus., 133 AD2d 731), the Certificate of Marriage between Mr. Mack and Ms. Brown is sufficient to carry Defendant's burden on this motion. Although Ms. Brown did not appear on the pending motions, she served a verified Answer to the Verified Complaint, in which she asserts, "I have a certificate of marriage from the City of New York Office of the City Clerk License Number B-2007-1007, dated Nov, 5, 2007," and the record on these motions includes a copy of a marriage certificate bearing that number.
Methodist Hospital also establishes prima facie that it acted reasonably and in good faith in delivering Mr. Mack's body to defendant Robinson. Defendant submits the Affidavit of Maria De Dilectus, Managing Director of the Admitting Department, and the affidavit of Esther Mercado, Associate Director of Nursing, who were involved in releasing Mr. Mack's body to defendant Robinson, and who render admissible as evidence certain related documents. Most important among the documents in evidence is a Funeral Director's Statement of Authority, in which defendant Robinson "certified" that it had been authorized to take charge of the remains of Joseph Mack by Regina Mack, his wife.
The New York City Health Code provides:
"When a death . . . occurs in a hospital, the person in charge shall deliver the remains immediately upon demand . . . to a funeral director or undertaker who presents . . . a certificate that he has been authorized to take charge of the remains by the next of kin defined in § 205.01." (24 RCNY Health Code Reg § 205.19.)
The term "next of kin" is defined in the cited regulation as "the person or persons, in the following order of priority, who are available . . . to give instructions regarding the disposal of a decedent's remains"; "[t]he spouse or the domestic partner" is listed first in priority. ( See 24 RCNY Health Code Reg § 205.01 [d].)
The Court holds that a hospital's compliance with the quoted Health Code regulation establishes prima facie that it has acted reasonably and in good faith in releasing a decedent's remains.
The Court notes that it is not aware of any decision in which the presumption of validity of the second of two marriages has been applied, or in which the quoted Health Code regulation has been applied, on a loss of sepulcher claim. Nor is the Court aware of any reason why one or the other should not apply on a loss of sepulcher claim. Consistency as to the existence of juridical relationships and the consequences that attend those relationships is essential to the proper functioning of civil society.
Since Plaintiffs point to no evidence that would establish a triable issue as to the reasonableness or in good faith of the conduct of New York Methodist Hospital, its motion must be granted whether Mr. Mack's surviving spouse is plaintiff Shirley Major Mack or defendant Regina Brown.
Neither defendant Robinson nor defendant Green-Wood makes a prima facie showing on their respective motions that it acted reasonably and in good faith in handling Mr. Mack's body. Although an attorney's affirmation may serve as the vehicle for submitting evidence otherwise in admissible form, a writing that is not otherwise admissible does not become evidence merely by its attachment to an attorney's affirmation. Neither the so-called "verification" of defendant Robinson's President, nor the Affidavit of defendant Green-Wood's crematory manager, is sufficient to render admissible as evidence the documents attached to the respective attorney's affirmation. (As to defendant Robinson, although framed as a CPLR 3211 motion to dismiss, the motion is based upon the submitted documents; on its face, the Verified Complaint is sufficient to state a cause of action.) In any event, as previously noted, there is no dispute on this motion that Robinson and Green-Wood acted at the direction of Regina Brown, which is what the documents purport to show.
Even assuming the admissibility of the documents, neither Robinson nor Green-Wood makes any showing that it acted reasonably and good faith in handling Mr. Mack's body if Ms. Brown was not the person authorized to direct its disposition. Unlike New York Methodist Hospital, whose conduct was governed by a specific Health Code Regulation, neither Robinson nor Green-Wood has directed the Court's attention to any similar regulation that would establish a standard of care to govern its conduct, nor does either point to any appropriate professional standard or custom in the trade. In the absence of such evidence, the Court is not prepared to hold on this record that, as a matter of law, a funeral home or cemetery/crematory acts reasonably and in good faith when it acts at the direction of person who presents a copy of a marriage certificate.
Defendant Robinson and Green-Wood, however, like defendant Methodist Hospital, establish prima facie by reason of the presumption as to validity of the second marriage that defendant Brown is the surviving spouse of Mr. Mack. The question becomes, then, whether Plaintiffs have raised a triable issue with sufficient evidence that she is not. That Plaintiffs have not submitted sufficient evidence to rebut the presumption for the purpose of a prima facie showing on their motion does not mean that the same evidence is not sufficient to raise a triable issue in opposition to an adversary's motion. ( See American Honda Fin. Corp. v Progressive Cas. Ins. Co., 290 AD2d 850, 852-53 [3d Dept 2002]; Ocean Diagnostic Imaging, Inc. v Utica Mut. Ins. Co., 6 AD3d 131 [A], 2005 NY Slip Op 50081 [U], * 2 [App Term, 2d Dept 2005].)
Had any disclosure at all taken place directed to the question of "surviving spouse" status, the Court might well grant Defendants' respective motions. But there has been no disclosure at all, and the first of this round of motions was made less than two months after service of the Verified Complaint. The Court again notes that the record of the marriage between Mr. Mack and Regina Brown is not certified by the City Clerk, and notes discrepancies between the Certificates of Marriage Registration for the two marriages as to the date and place of Mr. Mack's birth. Also, the certificate for the Mack/Majors marriage states, "Groom was married 0 time(s) before; Bride was married 0 times(s) before," the certificate for the Mack/Brown marriage says nothing about any prior marriage. Courts have considered statements made on a second-marriage application as probative on a question as to which of two marriages is to be recognized. ( See Matter of Seidel v Crown Indus., 132 AD2d at 311-12; Matter of Estate of Bihanskyi, 55 AD2d at 837-38; Fishman v Fishman, 48 AD2d at 877.) Moreover, there is no evidence as to the relationship between Mr. Mack and Ms. Brown for purposes of the cited caselaw that disqualifies a surviving spouse, which might benefit other next of kin if applicable.
The motion of defendant New York Methodist Hospital is granted to the extent that the Verified Complaint as against it is dismissed. To the extent that its motion seeks dismissal of "any and all cross-claims" (Notice of Cross-Motion), it is denied, since movant has made no showing with respect to any cross-claim.
Plaintiffs' motion, and the motions of defendant "Robert Benjamin Funeral Home" and defendant "Green-Wood Cemetery Mausoleum Crematory," are denied, with leave to renew after appropriate disclosure directed to the question of "surviving spouse" status, which shall proceed expeditiously and be completed before any other disclosure.