Opinion
Index No. 507317/2021 NYSCEF Doc. No. 83 Motion Seq. Nos. 34
06-27-2024
LANCE GREER and SHIRLEY GREER, Plaintiffs, v. NEW YORK-PRESBYTERIAN BROOKLYN METHODIST HOSPITAL and CITY OF NEW YORK, Defendants.
Unpublished Opinion
PRESENT:; HON. GINA ABADI. J.S.C.
DECISION ORDER
GINA ABADI. J.S.C.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:
Papers
NYSCEF Numbered
Notice of Motion/Cross Motion/Order to Show Cause and Affidavits (Affirmations) Annexed;
38-51, 53-72
Opposing Affidavits (Affirmations)
75-78
Reply Affidavits (Affirmations)
81, 82
Other
Upon the foregoing papers and after oral argument, defendant the City of New York (the City) moves, motion sequence 3, for an order: 1) pursuant to CPLR § 3211(a)(7) dismissing the complaint of plaintiffs Lance Greer and Shirley Greer (plaintiffs or Mr. Greer Mrs. Greer) and any and all cross-claims against the City or, in the alternative, 2) pursuant to CPLR 3212 granting the City summary judgment and dismissing any and all claims and cross-claims against it. Defendant New York-Presbyterian Brooklyn Methodist Hospital (Methodist Hospital) ijioves, motion sequence 4, for and order, pursuant to CPLR § 3212, granting summary judgment dismissing plaintiffs' claims.
Background and Procedural History
On June 28, 2020, at approximately 5:34 p.m., an ambulance responded to a call for an unresponsive female, plaintiffs' 23-year-old daughter, Nia Greer (Nia), in an apartment located in Brooklyn. Nia was ta ten to Methodist Hospital in cardiac arrest and passed away at 6:46 p.m. Methodist Hospital contacted plaintiffs and informed them of Nia's death. Plaintiff arrived at the hospital) where they got to see their daughters' body and met with the hospital chaplain on duty, Rabbi Spritz. Both plaintiffs testified that they informed Rabbi Spritz that they did not want an autopsy performed on Nia's body. Mr. Greer testified that he called Methodist Hospital the next morning around 8 or 9 a.m. to determine the whereabouts of Nia's body. He was eventually directed to contact the Office of the Chief Medical Examiner (OCME), The record indicates that in reporting Nia's death to the OCME. Methodist Hospital filled out and submitted an OCME Clinical Summary7 Worksheet, which contained a prompt asking the author "Objection to Autopsy?" Dr. Sahrish Ekram marked the response box indicating that there was no objection to autopsy. See NYSCEF Doc. No. 49, at 21-22. Dr. Ekram also marked "ads"in response to a form question asking, "Is this death the result of a recent or old injury, accident, suicide, homicide, assault, or therapeutic complication". Id.
Mr. Greer testified that he spoke to someone from OCME at approximately 10:30-11:00 a.m. on June 29, 2020, and was informed that OCME had performed an autopsy oh his daughter. It is undisputed (hat the OCME case file did not indicate that the family had relayed any objection to an autopsy being performed by OCME.
Plaintiffs subsequently) commenced this action with the filing of a summons and verified complaint on March 26, 2021. On April 22. 2021. Methodist Hospital filed an answer. On May 11, 2021, (he City filed an answer with cross-claims. Discovery, including plaintiffs' depositions and the depositions of witnesses produced on behalf of each defendant were completed, Plaintiffs filed note of issue and certificate of readiness on October 23, 2023, and the fallowing timely motion ensued.
Plaintiffs previously filed an amended notice of claim as agamst the City defendant on October 19, 2020.
The City's Motion
The City moves to dismiss the complaint and any cross-claims pursuant to CPLR § 3211 (a) (7), or, alternatively pursuant to CPLR § 3212 for summary judgment dismissing any and all claims and cross-claims against the City. In their complaint, plaintiffs allege that the City violated their right of sepulcher by negligently and/or intentionally performing an autopsy on decedent's remains despite the plaintiffs' objection to an autopsy. The City argues that plaintiffs' complaint should be dismissed as they failed to plead and cannot prove that the City owed them a special duty. Next, the City contends that it is entitled to summary judgment on its defense: of governmental function immunity. Finally, the City argues that plaintiffs' allegations of intentional and negligent conduct on the part of the City must be dismissed as they are not supported by evidence in the record.
On a motion to dismiss for failure to state a cause of action under CPLR § 3211 (a) (7). "the pleading is to be afforded a liberal construction." Marinelli New York Methodist Hosp., 205 A.D.3d 710, 711 (2d Dept 2022), quoting Leon v Martinez, 84 N.Y.2d 83, 87 (1994) citing CPLR § 3026. The court must '"accept the facts as alleged in [a] complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal Kefalas v Pappas, 226 A.D.3d 757 (2d Dept 2024), quoting Leon, 84 N.Y.2d at 87-88; see Connaughton v Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 141 (2017). It is appropriate to dismiss a complaint "'if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery.'" Franklin D. Nastasi Trust v Bloomberg, L.P,, 224 A.D.3d 804, 808 (2d Dept 2024), quoting Connaughton. 29 N.Y.3d at 142; see Nassau Operating Co.. LLC v DeSimone, 206 A.D.3d 920, 925 (2d Dept 2022).
"Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it 'should only be employed when there is no doubt as to the absence of triable issues of material fact.'" Koi was v Kirchoff, 14 A.D.3d 493, 493 (2d Dept 2005), citing Andrey Pomeroy, 35N.Y.2d 361.364 (1974); see Sucre v Consolidated Edison Co. of N.Y., Inc,, 184 AD3 d 712, 714 (2d Dept 2020). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate absence of any material issues of fact," Sanchez v Ageless Chimney Inc., 219 A.D.3d 767, 768 (2d Dept 2023), quoting Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 (186); Winegrad v New York Univ. Med, Ctr.. 64 N.Y.2d 851, 853 (1985). I
Once a moving party has made a prima facie showing of its entitlement to summary judgment, the burden shifts to the opposing party to produce admissible evidence to i establish the existence of material issues of fact which require a trial for resolution. See Gesuale v Campanelli & Assoqs., 126 A.D.3d 936, 937 (2d Dept 2015); Garnham in &Han Real Estate Brokers v Oppenheimer, 148 A.D.2d 493., 494 (2d Dept 1989). Failure to make such a showing requires denial pf the motion, regardless of the sufficiency of the opposing papers. See Winegrad, 64 N.Y.2d at 853; Wittenberg v Long Is. Power Auth., 225 A.D.3d 730 (2d Dept 2024); Skrok v Grand Loft Corp., 218 A.D.3d 702 (2d Dept 2023).
The City argues that plaintiffs have failed to plead that a special duty of care was owed to them. In this regard, the City asserts that no general tort duty is owed by the City to an individual person in the performance of its governmental functions. Specifically, the City maintains that the decision to perform autopsies is a public governmental function and that plaintiffs fail to plead, let alone demonstrate, that the City' owed them a special duty that differs from that owed to the public at large. The City contends that plaintiffs have failed to allege facts demonstrating that; they engaged in direct contact with the QCME, that led to an affirmative promise to take other action on their behalf; that any governmental actor had knowledge that inaction under these circumstances would lead to harm; or that plaintiffs reasonably and objectively relied on such a promise to their detriment.
In opposition, plaintiffs argue that their action against defendants is rooted in Public Health Law § 4210-c (1) &(2J. In this regard, they assert that OCME's performance of the autopsy was not the basis for their negligence claim, rather it was OCME's failure to perform its duty to confer with the plaintiffs to determine if there were any objections to the autopsy prior to performing same. As plaintiffs objected to the performance of the autopsy, they contend that OQME was required by Public Health Law § 4210-c (5) to institute a special proceeding) to seek the court's intervention to perform the autopsy notwithstanding the plaintiffs'| objection. Plaintiffs maintain that informing plaintiffs of the death, noting their objection to an autopsy and instituting a special proceeding to override such objection are ministerial functions that create a special duty on the City's part. Plaintiffs point out float they specifically cite to Public Health Law § 4210-c in their complaint and thus contend that the City's failure to obtain plaintiffs' consent as required j was properly plead and thus there is no basis for dismissal of their complaint.
Public Health Law § 4210-c (f) states: in the absence of a compelling public necessity, no dissection or autopsy shall be performed: over the objection of a surviving relative or friend of the deceased that such procedure is contrary to the religious belief of the decedent, or, if there is otherwise reason to believe that a dissection or autopsy is contrary ad the decedents religious beliefs. Section 4210-c (2) states that for the purposes of this section, compelling public necessity shall mean: (i) that the dissection or autopsy is essential to the conduct of a criminal investigation of a homicide, as defined in section 125.00 of the penal law; (ij) that discovery of the cause of death is necessary to meet an immediate and substantial threat to the public health and that a dissection or autopsy is essential to ascertain the cause of death, or; (iii) that the need for a dissection or autopsy is established in accordance with subdivision five of this section.
§ 4210-c (5) states: Whenever and coroner or medical examiner shall deem it necessary to perform an autopsy over the objection of a surviving relative or tried that such autopsy is contrary to the religious beliefs of the deceased, or where there is otherwise reason to believe that a dissection or autopsy is contrary to the decedents religious beliefs, in circumstances not provided for in subparagraphs (i) and (ii) of paragraph (a) of subdivision two of this section, he may institute a special proceeding, without fee, in the supreme court or county court for an order authorizing such autopsy, Such proceeding shall be instituted as soon as practicable, brought on by an order to show cause on notice to the next of kin or friend, or if none is known to the petitioner, then to sup party as the court may direct, returnable at the earliest possible time.
Plaintiffs further contend that government immunity is inapplicable here as OCME's actions were not discretionary. Thus, plaintiffs maintain that absent a "compelling public necessity, OCME was required to contact plaintiffs and ascertain if there were any objections to an autopsy and, if so, to institute: the proper judicial proceedings prior to performing an autopsy over plaintiffs' objections. Plaintiffs argue that the City has failed to make a prima facie showing of the lack of a special duty or governmental immunity to warrant summary judgment dismissing their claims.
In reply, the City notes that plaintiffs do not dispute that an objection to autopsy Was never relayed to OCME by Methodist Hospital, The City asserts that plaintiffs are trying to manufacture a non-existent ministerial duty owed by the City to confirm with plaintiffs as to any objection to autopsy; and that this duty negates OCME's discretionary duty to determine when an autopsy is necessary. The City reiterates its argument that OCME has no ministerial duty to obtain consent before performing the governmental function of conducting an autopsy. Moreover, the City argues that Public Health Law § 4210-c is only applicable when the medical examiner has been made aware of an objection to autopsy. Here, it is undisputed that OCME was not informed of any objection to the performance of an autopsy on plaintiffs' daughter. In support of this argument the City points to Rugova v City of New York (132 A.D.3d 220 [1st Dept 2015]). wherein the court rejected the argument that a cause of action lies for failure to obtain consent where, as here, no objection to autopsy had been conveyed to the OCME.
"The common-law right of sepulcher affords the decease'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." Marinelli v New York. Methodist Hosp., 205 A.D.3d 710, 711-712 (2d Dept 2022). quoting Shipley v City of New York, 25 N.Y.3d 645, 653 (2015) (internal quotation marks omitted); see Gutnick v Hebrew Free Burial Socy. for the Poor of the City of Brooklyn, 19 8 A.D.3d 880, 882 (2d Dept 2021); Turner v Owens Funeral Home. Ine., 189 A.D.3d 911, 912 (2d Dept 2020); Cansev v City of New York, 185 A.D.3d 894, 895 (2d Dept 2020); Green v Iacovangelo, 184 A.D.3d 1198, 1200 (4th Dept 2020). "Interference can arise either by unauthorized autopsy, or by disposing of the remains inadvertently, or . . . by failure to notify next Of kin of the death.'' Melfi v Mount Sinai Hosp., 64 A.D.3d 26, 39 (1st Dept 2009) (citations omitted); see Gutnick, 198 A.D.3d at 882; Cansev, 185 A.D.3d at 895: Fox. v Mark, 181 A.D.3d 560, 564 (2d Dept 2020). "To establish a cause of action for interference with the right of sepulcher, [a] plaintiff must establish that: (1) plaintiff is) the decedent's next of kin; (2) plaintiff had a right to possession of the remains; (3) defendant interfered with plaintiff s right to immediate j possession of the decedent's body; (4) the interference was unauthorized; (5) plaintiff was aware of the interference; and (6) the interference caused plaintiff mental anguish." Gutnick, 198 A.D.3d at 882, quoting Turner v Owens Funeral Home, Inc.. 189 A.D.3d at 912-913; Green, 184 A.D.3d at 1200. The court finds that the pity is entitled to summary judgment dismissing plaintiffs claim alleging that the City) violated their right of sepulcher by negligently and/or I intentionally' performing an autopsy on their deceased daughter despite their objection, i Here, based on the documentation transmitted to OCME from Methodist Hospital, and the testimony from the OCME witnesses, it is undisputed that OCME was never informed that plaintiffs had any objection Ito an autopsy. In addition, there was: no unauthorized interference with plaintiffs' fight to immediate possession of their daughter's body.
Moreover, OCME is authorized to perform an autopsy where, as here, a person "in apparent health" dies suddenly (see NY City Charter § 557 [f]), and the medical examiner had no indication that plaintiffs' family had raised an objection to the performance of an autopsy. See Rugova, 132 A.D.3d at 226-227; see also Shipley, 25 N.Y.3d at 653 (holding that a medical examiner's decision td conduct an autopsy constitutes a discretionary act "meaning that his conduct involved the exercise of reasoned judgment that may not result in the [City's] liability even [if] the conduct [was] negligent") (internal citations and quotations omitted).
The court finds no merit to plaintiffs' assertion that OCME had a special duty to confer with the plaintiffs to determine if there were any objections to the autopsy. "Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general." McClean v City of New York, 12 N.Y.3d 194, 203 (2009). To establish a voluntarily assumed special duty, a plaintiff must demonstrate: "'(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge On the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the i municipality's affirmative undertaking.'" Howell v City of New York, 39 N.Y.3d 1006, 1008-1009 (2022). quoting Ferreira v City of Binghamton, 38 N.Y.3d 298. 312-313 (2022) (citations omitted).
Here, the City did not owe a special duty to plaintiffs and the court declines to impose one. There was no contact between plaintiffs and OCME in which an action or promise to act at plaintiffs' behest occurred which they detrimentally relied upon. Id. OCME was not required to obtain plaintiffs' consent to perform the autopsy inasmuch as there was no indication that any objection to an autopsy had been raised, Or did OCME have any reason to believe that an autopsy would be objectionable on religious grounds. See Rugova, 132 A.D.3d at 226-227; Juseinoskiy N.Y. Hosp. Med. Ctr. of Queens, 18 A.D.3d 713, 714-715 (2d Dept 2005); Banks v United Hosp., 215 A.D.2d 623, 624 (1st Dept 2000); Harris-Cunningham v Medical. Exam., 261 A.D.2d 285, 285 (1st Dept 1999) (noting that while Public Health Law § 4214 imposes an affirmative duty on hospitals to seek consent before performing autopsies, there is no similar affirmative duty on the part of the City's Medical Examiner to obtain such consent). Moreover, all of the witnesses deposed on behalf of the OCME testified that the autopsy would have been performed, even if OCME had been aware of plaintiffs' objections, in order to rule out foul play, as decedent was an otherwise healthy 23 year old) who died unexpectedly. See NYSCEF Doc No. 51, Dr. Pasquale-Styles EBT at 40-42; NYSCEF Doc No. 50, Dr. Mahabir's EBT at 29-33; and NYSCEF Doc No. 67, Dr. Coleman's EBT at 24-25. Finally, OCME was not subject to the requirement under Public Health Law § 4210-c (5), to seek judicial intervention to overcome plaintiffs' objection to the performance of an autopsy as it was not even aware that such objection existed. See Harris-Cunningham, 261 A.D.2d at 285-286. Plaintiffs fail to raise a triable issue of fact iif opposition to the City's demonstration of its entitlement to summary judgment dismissing: plaintiffs' complaint in its entirety as asserted against the City. See Juseinoskiy New York Hosp. Med. Ctr. of Queens, 45 A.D.3d 643, 644 (2d Dept 2007); Harris-Cunningham, 261 A.D.2d at 285-286. Accordingly, the City's motion is granted and plaintiffs' claims qs asserted against the City are dismissed.
Methodist Hospital's Motion
Methodist Hospital moves tor sum maty judgment dismissing plaintiffs' claims as asserted against it: arguing thatjit did not depart from accepted standards of care by failing to notify OCME of the plaintiffs' objection to autopsy . Methodist Hospital asserts that plaintiffs' own self-serving testimony to the contrary does not refute the fact that the: relevant hospital and OCME records affirmatively reflect that plaintiffs had no objection to an autopsy. In addition, Methodist Hospital maintains that whether or not plaintiffs had objected to an autopsy while at Methodist Hospital is moot, as the facts and the applicable law all reflect that OCME would have exercised its authority to perform the decedent's autopsy over objection. Thus, they contend that there is no causal connection between Methodist Hospital's alleged failure to convey plaintiffs' objection to an autopsy to OCME and the fact that an autopsy [was performed. In support of this argument, Methodist Hospital points to the deposition testimony of the three OCME doctors, each of whom testified that since it was possible that foul play was involved as the decedent was an otherwise healthy young wonjan, an autopsy would have been performed even over the objection of a family member. See NYSCEF Doc No. 51, Dr. Pasquale-Styles EB T at 40-42; NYSCEF Doc No. 50. Dr. Mahabir's EBT at 29-33; and NYSCEF Doc No. 67, Dr. Coleman's EBT at 24-25. Methodist Hospital also asserts that an OCME investigator, Mr. Esquivak spoke with plaintiff prior to the autopsy and that they understood that the decision to perform an autopsy was at OCME's discretion.
In opposition,, plaintiffs! argue that Methodist Hospital failed to establish its burden for summary judgment. First, they assert that Methodist Hospital incorrectly relies on the medical malpractice standard and fails to even address their claim that Public Health Law § 4210-c was violated. Moreover, plaintiffs contend that Methodist Hospital has not established entitlement to summary judgment under a medical malpractice standard as they failed to submit an expert affidavit establishing a lack of departure from the standard of 1 care. Plaintiffs note that they both testified that they had explicitly told Rabbi Spitz, a Methodist Hospital employee,! that they did not want an autopsy performed for religious: purposes and because their daughter would not have wanted an autopsy performed. They point out that Rabbi Spitz was precluded from testifying due to his failure to appear for deposition. Plaintiffs argue that they informed Rabbi Spitz of their objection to autopsy, and that their objection was not noted in the records that were transmitted to OCME. Thus, plaintiffs maintain that this establishes Methodist Hospital's negligence in failing to note j their explicit objection to the performance of an autopsy. Plaintiffs further argue that the submission of the Metropolitan Hospital record, which indicates that plaintiffs did not object to the performance of an autopsy, does not establish prima facie entitlement to summary' judgment dismissing plaintiffs' claims. Specifically, they note that there is no evidence in the record that plaintiffs ever spoke with Dr. Sahrish Ekram, who is listed as the person who completed the documents sent over by Methodist Hospital to OCME related to decedent, which stated that there was no objection to the autopsy. Moreover, plaintiffs argue that Methodist Hospital has not established that plaintiffs tailed to notify Methodist Hospital of their objection to jin autopsy. In addition, plaintiffs contend that Methodist Hospital misrepresents the OCME Investigative report as it does not state whether or not an objection why received prior to the performance of the autopsy but merely states that
Mr. Esquivel "explained the OCME policy and procedure and they are aware that the decision to autopsy the decedent is at the discretion of the assigned pathologist," See NYSCEF Doc No. 77.
In reply, Methodist Hospital asserts that the records indicate there was no objection i to the autopsy conveyed by plaintiffs to Methodist Hospital as evidenced by the hospital records. Next, Methodist Hospital reiterates its: contention that plaintiffs were aware that the decision to autopsy was within the discretion of OCME.
Methodist Hospital's motion is denied as it has failed to make a prima facie demonstration of entitlement to summary judgment dismissing plaintiffs' claims as j asserted against Methodist Hospital. Specifically, Methodist Hospital has failed to eliminate all triable issues of fact regarding whether its negligence caused or contributed to plaintiffs' claimed injuries. Here, both plaintiffs have testified that they explicitly i informed Methodist Hospital employee. Rabbi Spitz, that they did not want an autopsy performed on their deceased daughter. Methodist Hospital has failed to produce either Rabbi Spitz or Dr. Elkam for a deposition, or submit an affidavit from either, refuting plaintiffs' testimony in this regard. Thus, plaintiffs' refuted testimony creates a question of fact regarding Methodist Hospital's negligence and precludes its entitlement to summary judgment dismissing plaintiffs claims. While it is possible based on the testimony of the OCME doctors, that an autopsy would have been performed on decedent notwithstanding plaintiffs' objection, here it appears that plaintiffs were not given the opportunity to have their objections relayed to OCME, which may have triggered the requirement under Public Flea I th Law § 4210-c (5) to seek judicial intervention to override plaintiffs' objection to the autopsy on religious grounds. The court notes that Methodist Hospital asserts that plaintiffs were aware that the decision to perform an autopsy was at the discretion of OCME. In this regard, Methodist Hospital points to the deposition testimony of the doctors and to the OCME Investigation Report, prepared by OCME investigator, Mr. Esquivel, in which he states that he spoke With plaintiffs and that ''they are aware that the decision to autopsy the decedent is at the discretion of the assigned pathologist." See NYSCEF Doc No. 77. However, Mr. Greer's testimony indicates that the first time he spoke with someone at OCME was after the autopsy had already commenced and was nearly complete. See NYSCEF Doc No. at 62-63. Indeed, the OCME Case Notes indicate that a call was placed from OCME to plaintiffs at 9:25 a.m. on .Tune 29, 2020, but the line just rang and there was no answering machine. The next entry in the Case Notes documents a call received from Mr. Greer at 10:54 a.m., attempting to determine the status of the case and decedent's whereabouts and indicates that he was upset after finding out that an autopsy had been performed without the family's permission. See NYSCEF Doc No. 49. Thus, contrary to Methodist Hospital's assertion, there is nothing in the record documenting that plaintiffs were informed, prior to the performance of the autopsy, that said autopsy would be performed at the discretion of the Medical Examiner and over plaintiffs' objections,
Accordingly. Methodist Hospital's motion is denied as there are triable issues of fact as to the liability of the hospital based upon the alleged negligence of hospital personnel. See Juseinoski v N.Y.Hosp. Med. Ctr. of Queens, 18 A.D.3d 713, 715 (2d Dept 2005).
Conclusion
To the extent not specifically addressed herein, the parties' remaining contentions and arguments were considered and found to be without merit and/or moot.
Accordingly, it is
ORDERED that the City's motion for an order granting summary judgment dismissing plaintiffs' claims as asserted against the City is granted and said claims are dismissed, and it is further
ORDERED that Methodist Hospital's motion for an order granting summary' judgment dismissing plaintiffs' claims as asserted against it is denied, and it is further
ORDERED that the action is severed and continued against the remaining defendant Methodist Hospital, the action (as severed) is transferred to the Non-City Part, and the caption is amended accordingly, and it is further
ORDERED that remaining parties shall still appear for their scheduled pre-trial conference in the City Trial Readiness Part on July 30, 2024 at 10:00 a.m.
This constitutes the decision, order, and judgment of the court.