Opinion
82 A.D.3d 672 922 N.Y.S.2d 274 Dana BAILEY, Plaintiff-Appellant, v. BENTA'S FUNERAL HOME, INC., Defendant-Respondent. No. 2011-02537 Supreme Court of New York, First Department March 31, 2011
Bernard H. Fishman, New York, for appellant.
Law Office of Crisci, Weiser & Huenke, New York (David Weiser of counsel), for respondent.
GONZALEZ, P.J., FRIEDMAN, MOSKOWITZ, FREEDMAN, ROMÁN, JJ.
Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered on or about February 25, 2010, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff alleges that her mother died on February 3, 2007 and was supposed to be cremated a few days thereafter. The mother's ashes were to be placed by defendant in an urn in preparation for a memorial service that was held on February 9, 2007. However, on or about February 27, 2007, plaintiff discovered that there were no ashes in the urn. When she notified defendant of this, defendant told plaintiff that " it had mislaid the ashes," but that the ashes would now be delivered to her. Plaintiff would not accept delivery because she was unsure they were her mother's remains. According to the complaint, defendant " carelessly lost the ashes" and was now attempting to deliver " any ashes to plaintiffs in an attempt to cure its negligence."
Losing, or improperly dealing with, the remains of a deceased person gives rise to a cause of action by the deceased's next of kin ( see Shipley v. City of New York, 80 A.D.3d 171, 177, 908 N.Y.S.2d 425 [2010]; Melfi v. Mount Sinai Hosp., 64 A.D.3d 26, 31, 877 N.Y.S.2d 300 [2009] ). However, merely causing doubt in the plaintiff's mind regarding whether particular ashes are those of her loved one, without more, is not actionable ( see Stahl v. William Necker, Inc., 184 A.D. 85, 91-92, 171 N.Y.S. 728 [1918] ).
Defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the subject ashes were not lost and that, upon learning of the mistake, it attempted to deliver the ashes to plaintiff who refused to accept such delivery. In opposition, plaintiff failed to raise a triable issue of fact, and her assertion that further discovery is necessary, is not sufficient to defeat the summary judgment motion ( see e.g. Oates v. Marino, 106 A.D.2d 289, 291-292, 482 N.Y.S.2d 738 [1984] ).