Opinion
122974/02.
Decided on April 30, 2008.
The attorney for plaintiff in this action is Joseph Tacopina.
Mount Sinai is represented by Aaronson, Rappaport, Feinstein and Deutsch.
NYCHHC is represented by McAloon Friedman.
The City was represented by Corp. Counsel.
On October 28, 2001, plaintiff's decedent, Leonard Melfi, fell in his apartment, which was located in the Narragansett Hotel, a residential hotel in New York City. A neighbor heard yelling coming from the apartment and called an ambulance. According to the Ambulance Call Report prepared by the EMS workers, he was found "lying in apt, full of feces." The report indicated that he had fallen down in his apartment and was, inter alia, having difficulty breathing. It was also noted in the report that he had an elevated heart rate of 132 beats per minute, while in the care of the EMS workers. In addition to the information relating to his medical condition, the Ambulance Call Report contained Leonard Melfi's address, date of birth and social security number. The Ambulance Call Report also listed Joann Tedesco, a close friend of Leonard Melfi, as his next of kin, and contained Ms. Tedesco's telephone number.
Leonard Melfi was a playwright, whose plays have been produced both on and off Broadway. In addition to working in the theater, Leonard Melfi wrote movie screenplays and television scripts.
Leonard Melfi was taken by ambulance to the emergency room at Mount Sinai Hospital at approximately 1:55 p.m. The Ambulance Call Report, prepared by the EMS workers, was received by a staff member at Mount Sinai, who signed the report as the Hospital Receiving Agent. An Emergency Department, Patient Registration Form was prepared, at some point, after Leonard Melfi's arrival at the hospital, and contained the same pedigree information as the Ambulance Call Report, i.e., address, date of birth and social security number. Mount Sinai's Patient Registration Form also listed Joann Tedesco as Leonard Melfi's next of kin, and contained her telephone number. A triage assessment was performed, and the records indicate that, at that time, Leonard Melfi was still experiencing shortness of breath and was noted to, among other things, have an elevated heart rate. The triage records state that Leonard Melfi was disheveled in appearance and full of feces. It appears that no treatment was administered in triage. Notwithstanding, he was given acute priority, and sent to an acute area of the emergency department. It is noted that the triage records also contain Leonard Melfi's pedigree information.
Leonard Melfi was assessed by Dr. John Joseph Bruns, Jr., an attending physician, in the emergency room at Mount Sinai. He was found to be in respiratory distress, with edema, which is the swelling of the extremities. The emergency room records indicate that Leonard Melfi's heart rate was a very high 160 beats per minute, at the time. Dr. Bruns testified at his deposition that his preliminary diagnosis was congestive heart failure, as a result of, or a cause of, arterial fibrillation. Dr. Bruns also entertained the possibility of pneumonia and heart ischemia. He considered Leonard Melfi to be a critically ill patient. Dr. Bruns testified that he put a nonrebreather face mask on Leonard Melfi with the highest concentration of oxygen. The use of the nonrebreather face mask was documented in the emergency room records. According to Dr. Bruns, he administered Diltiazem to reduce Leonard Melfi's heart rate and "would typically" administer a dose of Lasix to get rid of extra body fluid. Dr. Bruns further testified that he would have probably given Leonard Melfi an antibiotic in case there was pneumonia. Notwithstanding Dr. Bruns testimony with respect to the administering of the aforementioned treatments, with the exception of the use of the nonrebreather mask, the emergency room records did not indicate that Leonard Melfi was provided with any of the other treatments discussed by Dr. Bruns at his deposition. Additionally, Dr. Bruns testified that nurses at Mount Sinai assisted in the emergency room treatment provided to Leonard Melfi, however, it does not appear that any nursing notes were generated in connection with such treatment.
Leonard Melfi eventually stopped breathing and became unresponsive. Dr. Bruns testified that he had a vague recollection of intubating the decedent and remembered performing Advanced Cardiac Life Support. These treatments were not noted in the medical records. Leonard Melfi expired in the emergency room at Mount Sinai on October 28, 2001 at 6:20 p.m., approximately four and one-half hours after his arrival. According to Dr. Bruns' testimony, immediately following Leonard Melfi's death, he made at least two attempts to contact the next of kin listed in the medical chart, i.e., Joann Tedesco, via telephone. Dr. Bruns was unable to reach Ms. Tedesco, stating that the telephone "kept ringing" and "there was no recording or ability to leave a message." It appears that no written record was created with respect to Dr. Bruns' attempt to contact Ms. Tedesco. Unable to contact Leonard Melfi's next of kin, Dr. Bruns informed other personnel at Mount Sinai who, according to Dr. Bruns, took over the responsibility of contacting Leonard Melfi's next of kin. Dr. Bruns could not remember specifically who he spoke with regarding this matter, but believes it was the charge nurse and a nursing administrator.
It is noted that the Billing Sheet filled out by Dr. Bruns in connection with the care provided to Leonard Melfi indicates that the only "procedures" administered were pulse oximerty, which, as testified to by Dr. Bruns, is a diagnostic tool, C.V.P. catheter placement, which was described as a "treatment procedure that allows for some diagnostic capabilities," and an electrocardiogram, also a diagnostic tool.
Mount Sinai's rules and regulations relating to notifying a family about the death of a family member specifically sets forth that it is initially a physician's responsibility to notify the next of kin of a patient's death. If the physician is unable to contact the next of kin, the physician is to notify the Clinical Nurse Manager/Nursing Administrator, who is required to make further efforts to contact the next of kin by making frequent phone calls, sending a telegram, and making a request of the New York City Police Department (hereinafter "NYPD") to visit potential residences for next of kin. If the Clinical Nurse Manager/Nursing Administrator is not successful with these aforementioned methods, and as a consequence, fails to locate a patient's next of kin, they are responsible for contacting the NYPD Missing Person's Unit. After the NYPD Missing Person's Unit is contacted, a "Request for Police Investigation — Deceased Patient (RFPI) Form" must be prepared by the hospital, in triplicate. One copy of that form remains with the body, one copy is to be kept at the hospital, and the original is to be forwarded to the Receiving City Mortuary with the body, the latter copy to be returned to the NYPD when the body is released from the mortuary to a "legally designated institution." According to an affidavit from the NYPD, submitted by plaintiff in opposition to Mount Sinai's motion, the NYPD was never contacted by Mount Sinai to conduct any investigation into the existence and whereabouts of Leonard Melfi's family, following his death. Furthermore, although the rules and regulations require the Nursing Administrator, at the appropriate care center, to maintain a log detailing the attempts made to contact a patient's next of kin, there are no records indicating that any efforts were made by anyone at Mount Sinai to contact Ms. Tedesco or to locate Leonard Melfi's family.
Following his death, a Certificate of Death form was completed by an emergency room physician other than Dr. Bruns. Leonard Melfi was then brought to the Mount Sinai morgue. Since the staff at Mount Sinai was unable to locate Leonard Melfi's next of kin, he was characterized as an "unclaimed body." According to the testimony of Calvin Keys, an employee of the Mount Sinai morgue, once the morgue is in possession of an unclaimed body, it becomes the responsibility of the morgue staff at Mount Sinai to complete the "Personal Particulars" portion of the Certificate of Death; typically this is completed by a funeral director. Notwithstanding the fact that the Mount Sinai records relating to Leonard Melfi contained his pedigree information, the "Personal Particulars" relating to the decedent, including but not limited to his address, date of birth and social security number, were all "unknown" according to the Certificate of Death. The Certificate of Death also indicated that the "Name of Informant" was "unknown" and that Leonard Melfi was to be buried in the City Cemetery.
It appears that the Certificate of Death was initially completed by a Dr. Thomas Nguyen. However, this Certificate of Death incorrectly stated that Leonard Melfi was an inpatient at the time of his death. Another Certificate of Death, which was ultimately filed with the Department of Health, was completed by a Dr. Carol Barsky, and correctly stated that Leonard Melfi died in the emergency room. It is noted that neither of these Certificates of Death indicated that Leonard Melif was attended to by Dr. Bruns, prior to his death.
In addition to the rules set forth above, Mount Sinai has specific rules and regulations in place that relate to the disposition of bodies with no next of kin. Where a body remains in the hospital morgue "unclaimed" for a period of 72 hours, the Morgue Supervisor is required to notify the Administrator of Pathology. The Administrator of Pathology is then required to communicate with the Care Center Director and complete a decedent follow-up form and forward it to the Care Center Director. Thereafter, under the direction of the Care Center Director, a decision is to be made with respect to the disposition of the body. If further efforts are needed to locate next of kin, the body is to be retained in the morgue at Mount Sinai while this is done. The hospital's rules and regulations further state that if "after 42 hours it is definitely established that there is no next of kin and every source has been exhausted in trying to ascertain this information . . . the Superintendent's Permission form is completed by the Care Center Director, authorizing a Hospital Post Mortem Examination after which the body is transferred to the City Mortuary." In the instant action it appears that Mount Sinai did not abide by its own rules and regulations.
The certificate of death was filed with New York City Department of Health (hereinafter "DOH") on November 21, 2001, setting forth that Leonard Melfi passed away in the emergency room at Mount Sinai Hospital on October 28, 2001. Again, the "Personal Particulars" relating to the decedent, according to the certificate of death, were all "unknown." DOH issued a burial permit in November of 2001 and on November 28, 2001, Leonard Melfi's body was transferred to the City Morgue, which at that time was located at Bellevue Hospital and operated by New York City Health and Hospitals Corporation (hereinafter "NYCHHC"). While at the City Morgue, students of Nassau County Community College's Mortuary Science Department were permitted to practice embalming on Leonard Melfi. It does not appear that any efforts were made at any time by the City Morgue to verify that the body of Leonard Melfi was "unclaimed." On or about December 20, 2001, the body of Leonard Melfi was transferred from the City Morgue to the City Cemetery located on Hart's Island, which is commonly referred to as Potter's Field. The City Cemetery is operated by New York City Department of Corrections (hereinafter "DOC"). Leonard Melfi was then buried in a large burial plot by inmates of Riker's Island with approximately 150 other unclaimed bodies. Admittedly, DOC would not have made any efforts to determine or contact the next of kin of an unclaimed body.
Thereafter, on or about February 2, 2002, Leonard Melfi's niece, Dawn Kosilla, a New York State Police Trooper, received a telephone message from the manager of the Narragansett Hotel, informing her that her uncle had passed away. It appears that the staff at the Narragansett Hotel began to grow concerned when they had not seen Leonard Melfi for quite some time, and began making inquiries at Mount Sinai. Upon learning of Leonard Melfi's passing, a hotel staff member was able to contact Ms. Kosilla, calling a telephone number contained in the hotel's records. After contacting the Narragansett Hotel, Ms. Kosilla and her father, John Melfi, who was Leonard Melfi's brother, were informed by somebody on the hotel staff that Leonard Melfi was taken to Mount Sinai Hospital on October 28, 2001, and passed away, on that date. Joann Tedesco was contacted by Leonard Melfi's family after they learned of his death. This was when she first became aware of his death. Ms. Tedesco advised them that she was never called by Mount Sinai informing her that Leonard Melfi had passed away.
After learning that Leonard Melfi had passed away, John Melfi made inquiries with Mount Sinai Hospital and the City Morgue to find out where his brother had been buried. According to John Melfi's deposition testimony, during his initial visit to Mount Sinai he was told by Laura Giles, a Mount Sinai employee, that she could not provide him with details about his brother's death or advise him as to where the body was located at that time, because the pertinent hospital records had been "signed out" by another employee, Isabelle Danvers, who was on vacation, at that time. John Melfi further testified, at his deposition, the following day he learned that Ms. Danvers was not on vacation and concluded that Ms. Giles intentionally lied to him in order to conceal Mount Sinai's wrongdoing. John Melfi eventually learned that his brother had been buried at Potter's Field.However, he stated that he was encountering great difficulty when he initially attempted to locate his brothers remains, and it was not until the media began assisting him, in the search, did he learn the exact whereabouts of the body. Leonard Melfi's body was exhumed and identified by his brother, John Melfi. His family was then able to have a wake, and a funeral for Leonard, as well as a burial in a family plot in a cemetery located in his hometown of Binghamton, New York.
Plaintiff, John Melfi, served a notice of claim upon defendants on or about May 2, 2002. Thereafter, on or about October 21, 2002, plaintiff commenced the instant action with the filing of a summons and complaint. The complaint asserts causes of actions against all defendants for medical malpractice, loss of sepulcher, fraudulent concealment and punitive damages. Discovery has been completed in this action, and it is now trial ready. Defendants New York City Health and Hospitals Corporation s/h/a Bellevue Hospital and Health and Hospitals Corporation and the City of New York s/h/a New York City Police Department, New York City Department of Corrections and New York City Department of Health respectively move to dismiss the action as asserted against them, pursuant to CPLR 3211 and CPLR 3212; and by separate motion, defendant Mount Sinai Hospital moves to dismiss any and all claims for punitive damages asserted in the complaint, as well as the fraudulent concealment claim, pursuant to CPLR 3016, CPLR 3211(a)(7) and CPLR 3212. Additionally, plaintiff presently moves for leave to amend the complaint, pursuant to CPLR 3025(b) and (c).
A. Defendant Mount Sinai Hospital
Defendant Mount Sinai seeks dismissal of any and all claims for punitive damages asserted in the complaint, as well as the fraudulent concealment claim. First, with respect to plaintiff's medical malpractice cause of action, Mount Sinai argues that it cannot be held liable to plaintiff for punitive damages based upon the acts of its employees absent proof of complicity on its part. Mount Sinai also argues that the alleged malpractice does not rise to the level of reprehensible behavior to support punitive damages. Plaintiff opposes this portion of Mount Sinai's motion, arguing that issues of fact exist with respect to both Mount Sinai's complicity and whether the alleged malpractice is sufficiently egregious to support an award for punitive damages. Therefore, according to plaintiff, dismissal of plaintiff's claim for punitive damages relating to the medical malpractice cause of action is not warranted.
Punitive damages in medical malpractice actions are recoverable where a defendant's conduct is wantonly dishonest, grossly indifferent to patient care, or malicious and/or reckless. See Schiffer v. Speaker , 36 AD3d 520 [1st Dept. 2007]; see also Graham v. Columbia-Presbyterian Medical Center, 185 AD2d 753 [1st Dept. 1992][Court denies summary judgment with respect to a punitive damages claim in an action for medical malpractice because issue of fact existed as to whether the defendant doctor's actions were aggravated beyond mere negligence]; Sultan v. King's Highway Hospital Center, 167 AD2d 534 [2d Dept. 1990][Court held that punitive damages in a medical malpractice action were recoverable where a defendant's conduct constitutes gross negligence]. Courts have held that where the evidence can demonstrate that a defendant fails to render medical assistance to a patient in need of emergency treatment, and, in effect, abandons such a patient, punitive damages may be awarded. See Graham v. Columbia-Presbyterian Medical Center, supra; Sultan v. King's Highway Hospital Center, supra.
In Sultan v. King's Highway Hospital Center, supra, plaintiff sought to recover punitive damages against defendant hospital, alleging that the hospital refused to examine, treat or admit his wife when she arrived at the hospital's emergency room. Plaintiff was informed by a nurse at the hospital that they were at full capacity and that his wife would have to be transferred to another hospital. It was alleged that the decedent was transferred to another hospital without receiving any treatment, despite suffering from an acute cardiac event at the time. Decedent passed away the following day at the facility to which she had been transferred. It was held that issues of fact existed as to whether the defendant's failure to admit her in light of her need for immediate medical attention was, inter alia, reckless, and warranted an award of punitive damages.
Similarly, in Graham v. Columbia-Presbyterian Medical Center, supra, the Appellate Division, First Department, reversed a Trial Court's decision that granted partial summary judgment dismissing claims for punitive damages in a medical malpractice action. In Graham, it was alleged that plaintiff's decedent was experiencing, inter alia, significant bleeding and a drop in blood pressure following a surgical procedure. Despite the decedent's unstable condition the surgeon who performed the procedure left the hospital to go home. The decedent's condition continued to worsen and the surgeon was telephoned at home. Approximately three and one-half hours after receiving this telephone call the surgeon returned to the hospital and performed a further surgery to stop the bleeding. Notwithstanding, the decedent passed away the following day. Plaintiff alleged that the death was caused by the surgeon's failure to stop the blood loss in a timely manner. The Court found that the surgeon's conduct in that case, just like the conduct of the defendant hospital in Sultan, "amounted to a failure to render assistance to a patient in need of emergency treatment" and concluded that an issue of fact existed with respect to whether the actions of the surgeon "were so intentional, malicious, outrageous, or otherwise aggravated beyond mere negligence' as to support an award for punitive damages." Id., citing McDougald v. Garber, 73 NY2d 246; Montemurro v. Dodick, 160 AD2d 690 [2d Dept. 1990].
In the present case, plaintiff alleges that Mount Sinai was grossly negligent and/or reckless in failing to provide medical assistance to Leonard Melfi, despite his need for emergency treatment. The Court finds that plaintiff has submitted sufficient evidence to support such allegations for the purpose of defeating that portion of Mount Sinai's motion for partial summary judgment dismissing plaintiff's claims for punitive damages in connection with the medical malpractice cause of action. Plaintiff relies heavily on the Mount Sinai medical records, which indicate that Leonard Melfi was brought to Mount Sinai via ambulance because he was having difficulty breathing, and experiencing an elevated heart rate. The records further indicate that a triage assessment was performed in the emergency room, at which time Leonard Melfi was still experiencing shortness of breath and an elevated heart rate. Notwithstanding, no medical treatment was administered to Leonard Mefli in triage, rather he was given acute priority, and sent to an acute area of the emergency department. The medical records indicate that the only treatment administered thereafter was the use of a non-rebreather mask, which plaintiff argues was not effective. According to plaintiff, the lack of treatment administered to decedent, as evidenced by the medical records, demonstrates that Mount Sinai was grossly negligent and reckless in the failing to provide emergency medical care to decedent while he was known to be in distress, and that such failure ultimately led to his death. Although, Dr. Bruns testified at his deposition as to treatments that he recollects performing on Leonard Melfi immediately prior to his death, such testimony merely raises a triable issue of fact as to whether punitive damages may be imposed.
Mount Sinai further argues that it cannot be held liable to plaintiff for punitive damages in connection with plaintiff's medical malpractice cause of action, even if the Court finds that the alleged acts of medical malpractice could support an award of punitive damages, because such damages may not be imposed upon an employer based upon the acts of employees absent proof of complicity on the employer's part. The Court of Appeal, in Loughry v. Lincoln First National Bank, 67 NY2d 369, set forth that: "[w]hile the decision to award punitive damages in any particular case, as well as the amount, are generally matters within the discretion of the trier of fact, there is a threshold issue: punitive damages can be imposed on an employer for the intentional wrongdoing of its employees only where management has authorized, participated in, consented to or ratified the conduct giving rise to such damages or deliberately retained the unfit servant." see also Sultan v. King's Highway Hospital Center, supra, [affirming Trial Court's denial of defendant hospital's motion to strike so much of plaintiff's complaint as sought punitive damages against it finding that issues of fact existed as to whether hospital could be liable for punitive damages under the "complicity rule"]; Harrell v. Champlain Enterprises Inc., 222 AD2d 876 [3d Dept. 1995][plaintiff permitted to amend complaint to seek punitive damages from defendant employer where evidence supports claim that defendant knew of the pattern of irresponsibility of its employees and either condoned such behavior or failed to correct it]. Basically, under the "complicity rule," an employer will only be liable for punitive damages "when a superior officer, in the course of his employment, orders, participates in, or ratifies the outrageous conduct." Loughry v. Lincoln First National Bank, supra. Addressing the meaning of the term "superior officer," the Court of Appeals has stated: "[t]he term superior officer' obviously connotes more than an agent, or ordinary' officer or employee vested with some supervisory or decision-making responsibility. Indeed, since the purpose of the test is to determine whether an agent's acts can be equated with participation by the employer, the term must contemplate a high level of general managerial authority in relation to the nature and operation of the employer's business."
Loughry v. Lincoln First National Bank, Id.
Based on the foregoing, the Court finds that an issue of fact exists with respect to whether Dr. Bruns may be considered a "superior officer" of Mount Sinai for the purposes of equating his conduct with participation by the hospital, and provide a basis for the imposition of punitive damages. It is clear that the nature of Mount Sinai's business is to provide medical care to patients at the facility. Further, based upon the testimony of Dr. Bruns, it is also clear that he had the most authority of any of the health care professionals that were seeing patients in the emergency room at the time Leonard Melfi was transported there by ambulance. As the evidence demonstrates that Dr. Bruns was the physician in charge of providing medical care to emergency room patients, this Court finds that issues of fact exist as to whether such authority amounted to "general managerial authority in relation to the nature and operation of the employer's business." See, Loughry v. Lincoln First National Bank, supra.
The Court recognizes that punitive damages are not awarded for the purpose of compensating a plaintiff for an injury or a loss, but "serve the societal purposes of punishing and deterring the wrongdoer, as well as others, from similar conduct in the future"; if a jury finds that the evidence supports plaintiff's theory that Leonard Melfi was abandoned by Dr. Bruns and the staff at Mount Sinai, despite their knowledge that he was in desperate need of emergency treatment, the societal purpose of punishing the wrongdoer and deterring such conduct in the future will be well served. A jury could appropriately find that an award of punitive damages in the instant case would advance the goal of deterring such conduct by motivating Mount Sinai, as well as other health care facilities, to be more cognizant of the needs of patients arriving at their facilities in need of immediate medical care.
With respect to plaintiff's cause of action for a violation of plaintiff's right of sepulcher, Mount Sinai similarly argues that it cannot be held liable to plaintiff for punitive damages based upon the acts of its employees absent proof of complicity on its part. Mount Sinai further argues that the alleged tortious conduct does not rise to the level of reprehensible behavior to support punitive damages in connection with the sepulcher cause of action. Plaintiff opposes this portion of Mount Sinai's motion, arguing that issues of fact exist with respect to both Mount Sinai's complicity and whether the alleged tortious conduct is sufficiently egregious to support an award for punitive damages. Therefore, according to plaintiff, dismissal of plaintiff's claim for punitive damages relating to its sepulcher cause of action is not warranted.
A cause of action for damages for a violation of the right of sepulcher seeks to recover damages for the emotional injuries flowing from a defendant's alleged unwarranted delay in notifying a plaintiff of the death of a family member, and the interference with the families' right to the possession of the remains. See Gostowski v. Roman Catholic Church, 262 NY 320; Plunkett v. Downtown NYU Hospital , 21 AD3d 1022 [2d Dept. 2005]; Nesbit v. Turner , 15 AD3d 552 [2d Dept. 2005]. "The law is well settled that the surviving next of kin have a 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." Lott v. State of New York, 32 Misc 2d 296 [NY Ct. Cl. 1962]. Punitive damages may be awarded in connection with such a cause of action. See Plunkett v. Downtown NYU Hospital, supra; Liendo v. Long Island Jewish Medical Center, 273 AD2d 445 [2d Dept. 2000]; Liberman v. Riverside Memorial Chapel, 225 AD2d 283 [1st Dept. 1996]. However, as stated above, to warrant an award of punitive damages, the evidence must demonstrate that a defendant's conduct was beyond that of mere negligence. Punitive damages may be awarded only where a defendant's conduct is shown to be outrageous, malicious, fraudulent or where it is demonstrated that there was such a conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton. See Liberman v. Riverside Memorial Chapel, supra.
In the instant action, plaintiff has submitted sufficient evidence to demonstrate that there was such a conscious and deliberate disregard of the interests of others on the part of Mount Sinai in failing to contact Leonard Melfi's next of kin, following his death, and in setting in motion a series of unfortunate events, that such conduct may be called wilful or wanton. The Ambulance Call Report prepared by the EMS workers that brought Leonard Melfi to Mount Sinai was received by a staff member at Mount Sinai, as indicated by the signature of the Hospital Receiving Agent, on the report. This report contained his address, date of birth and social security number and listed Joann Tedesco, a close friend, as his next of kin, and contained Ms. Tedesco's telephone number. An Emergency Department, Patient Registration Form was generated at some point after Leonard Melfi's arrival at the hospital, containing the same pedigree information as the Ambulance Call Report, including information indicating that Joann Tedesco was Leonard Melfi's next of kin, and also containing her telephone number. Triage records created in the emergency room also contain Leonard Melfi's pedigree information. According to Dr. Bruns testimony, immediately following Leonard Melfi's death, he made at least two attempts to contact Joann Tedesco, via telephone. Dr. Bruns was unable to reach Ms. Tedesco, stating that the telephone kept ringing and "there was no recording or ability to leave a message." Joann Tedesco was contacted by Leonard Melfi's family after they learned of his death, and she advised them that she never received a call from Mount Sinai informing her that he had passed away.
Unable to contact Leonard Melfi's next of kin, Dr. Bruns testified that he informed other personnel at Mount Sinai, who, according to Dr. Bruns, took over the responsibility of contacting Leonard Melfi's next of kin. Dr. Bruns could not remember specifically who he spoke with regarding this matter, but believes it was the Charge Nurse and a Nursing Administrator. Despite Mount Sinai's specific rules and regulations relating to the notification of a patient's next of kin following their death, there is no indication that such rules were followed. When a physician is unable to contact the next of kin, the Clinical Nurse Manager/Nursing Administrator is required to make further efforts to contact them by methods such as frequent phone calls, a telegram, and a request to the NYPD to visit potential residences for next of kin. Although the rules and regulations require the Nursing Administrator at the appropriate care center to maintain a log detailing the attempts to contact a patient's next of kin, there are no records to indicate that any efforts were made by anyone at Mount Sinai to contact Ms. Tedesco or to locate Leonard Melfi's family. Furthermore, if the Clinical Nurse Manager/Nursing Administrator fails to locate a patient's next of kin, they are required by the hospital's own rules and regulations to contact the NYPD Missing Person's Unit to conduct a police investigation. It is undisputed that NYPD was never contacted by Mount Sinai to conduct any investigation into the existence and whereabouts of Leonard Melfi's family following his death. Unfortunately, had the NYPD been contacted to conduct an investigation, they would have most likely commenced that investigation at Leonard Melfi's home, the Narragansett Hotel, where they would have easily been able to obtain the contact information for his niece, State Police Trooper Dawn Kosilla. Such failures on the part of the staff of Mount Sinai exhibit a conscious and deliberate disregard of its own rules and regulations, and a conscious and deliberate disregard of the interests of Leonard Melfi's next of kin; the conduct may be called wilful or wanton and support an award of punitive damages in connection with the cause of action for a violation of plaintiff's right of sepulcher.
To make matters worse, when the death certificate was completed the "Personal Particulars" relating to the decedent, including but not limited to his address, date of birth and social security number, were all entered "unknown," despite the fact that all of this information was contained in the Mount Sinai medical records. The death certificate also indicated that the "Name of Informant" was "unknown." The failure on the part of Mount Sinai to simply transcribe Leonard Melfi's "Personal Particulars" on his death certificate not only stripped him of his identity, but facilitated the unfortunate chain of events that were yet to unfold. Such conduct on the part of Mount Sinai further evidences Mount Sinai's conscious and deliberate disregard of the interests of Leonard Melfi's next of kin, as well as its total disregard of its own rules and regulations relating to the disposition of bodies with no next of kin, which, if followed, would have led to further efforts to locate Leonard Melfi's next of kin.
Mount Sinai also argues that it cannot be held liable to plaintiff for punitive damages in connection with plaintiff's sepulcher cause of action based upon the acts of its employees absent proof of complicity on its part. However, as set forth above, this Court finds that an issue of fact exists with respect to whether Dr. Bruns may be considered a "superior officer" of Mount Sinai for the purposes of equating his conduct with participation by the hospital, and provide a basis for the imposition of punitive damages. Furthermore, as discussed in the facts above, Mount Sinai has somewhat extensive procedures in place with respect to notifying a family about the death of a family member and the release of an "unclaimed" body. Mount Sinai's rules and regulations specifically set forth the responsibilities of the physicians, Clinical Nurse Manager/Nursing Administrator, the Morgue Supervisor, the Administrator of Pathology, the Care Center Director and the Superintendent of the hospital as they relate to these procedures. The evidence submitted in opposition to Mount Sinai's motion indicates that no such procedures were carried out in this case. The evidence not only raises questions of fact as to whether management at Mount Sinai, i.e., physicians, Clinical Nurse Manager/Nursing Administrator, the Morgue Supervisor, the Administrator of Pathology, the Care Center Director and the Superintendent of the hospital, failed to ensure that its policies were being followed, but whether they failed to satisfy their own duties as expressly set forth in the rules and regulations. Mount Sinai points out that Judge Kaye, in Loughry, supra, "declared" that "[i]n this state, the question has long been settled: an employer is not punished for malicious acts in which it is not implicated." However, based upon the evidence in the instant action, every level of management is implicated in the wrongdoing.
Mount Sinai further argues that plaintiff's claim for punitive damages in connection with the medical malpractice claim should be dismissed because plaintiff improperly asserted a punitive damages cause of action in its complaint, rather than seeking such damages as part of a cognizable claim for gross negligence in connection with the alleged malpractice. It appears that plaintiff presently seeks to amend his complaint to properly plead a cause of action for gross negligence as asserted against Mount Sinai in connection with the alleged acts of medical malpractice, and seeks punitive damages in connection with that cause of action. It is noted that plaintiff improperly sought leave to amend his complaint in his opposition papers, rather than cross-moving for such relief. Thereafter, apparently upon learning of this technical defect, plaintiff made a motion for such relief. Mount Sinai argues, that this motion too is defective in several respects. Notwithstanding, as such defects have resulted in no prejudice to Mount Sinai, and it was afforded ample opportunity to be heard on the merits of the relief sought, and did, in fact, oppose plaintiff's motion to amend, such defects will be disregarded. See CPLR § 2001.
A demand for punitive damages does not amount to a separate cause of action for pleading purposes, and, thus, plaintiff's cause of action for punitive damages is improper. See. Grazioli v. Ecompass Ins. Co. , 40 AD3d 696 [2d Dept. 2007]; Royal Globe Ins. Co. v. Chock Full O'Nuts Corp., 86 AD2d 315 [1st Dept. 1982]. Accordingly, plaintiff's cause of action for punitive damages must be dismissed.
CPLR 3025(b) sets forth, in pertinent part that, leave to amend a pleading "shall be freely given upon such terms as may be just. . . ." Notwithstanding, "where the amendment is sought after a long delay, and a statement of readiness has been filed, judicial discretion in allowing the amendment should be discreet, circumspect, prudent and cautious'." Cseh v. New York City Transit Authority, 240 AD2d 270 [1st Dept. 1997]; see also Countrywide Funding Corp. v. Reynolds , 41 AD3d 524 [2d Dept. 2007]["where an application for leave to amend is sought after a long delay and the case has been certified as ready for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent, and cautious'"]; Comsewogue Union Free School Dist. v. Allied-Trent Roofing Systems Inc. , 15 AD3d 523 [2d Dept. 2005]["when leave [to amend] is sought on the eve of trial, judicial discretion should be exercised sparingly"]. The decision whether to grant leave to amend a pleading is left to the discretion of the trial court, and in exercising such discretion the court is to consider "how long the amending party was aware of the facts upon which the motion was predicated, whether the amendment is meritorious, and whether a reasonable excuse for the delay was offered." Romeo v. Arrigo, 254 AD2d 270 [2d Dept. 1998]; Rose v. Velletri, 202 AD2d 566 [2d Dept. 1994]. Although plaintiff has been aware of the facts upon which the motion was predicated upon since the commencement of the action, Mount Sinai has not demonstrated that they will suffer any prejudice if plaintiff is permitted to amend the complaint to properly plead a cause of action for gross negligence in connection with the alleged acts of medical malpractice. Furthermore, as discussed supra, an issue of fact exists with respect to whether the alleged acts of medical malpractice may support an award of punitive damages, and, thus, it cannot be argued that this amendment is devoid of merit. Accordingly, plaintiff is permitted to amend his complaint to properly plead a cause of action for gross negligence as asserted against Mount Sinai in connection with the alleged acts of medical malpractice, and seek punitive damages in connection with that cause of action.
Mount Sinai further seeks dismissal of plaintiff's fraudulent concealment cause of action, arguing that not only did plaintiff fail to adequately state a cause of action, on the ground that this cause of action was not pled with the required particularity, but there is no evidence to support a fraudulent concealment claim. Mount Sinai contends that plaintiff's complaint, with respect to the fraudulent concealment cause of action, contained bare conclusory allegations, unsupported by facts relating to the alleged fraud. As a result, Mount Sinai argues, plaintiff failed to satisfy the requirements of CPLR § 3016 (b), which require that such a cause of action be pled with particularity. In response to this argument, plaintiff moved to amend the complaint to include detailed factual allegations to support the fraudulent concealment cause of action. As this Court agrees with Mount Sinai that sufficient evidence does not exist to support a fraudulent concealment claim, that portion of Mount Sinai's motion seeking dismissal of plaintiff's fraudulent concealment cause of action is granted, and that portion of plaintiff's motion to amend the complaint to include detailed factual allegations to support the fraudulent concealment cause of action is denied.
In an action to recover for fraud, the plaintiff must prove a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury. See generally Lama Holding Co., v. Smith Barney Inc., 88 NY2d 413; see also PJI 3:20, Intentional Torts — Fraud and Deceit [2d Edition 2008]. According to plaintiff, once he learned of his brother's death, he visited Mount Sinai to inquire as to the whereabouts of his brother's remains. Plaintiff alleges that during this visit to Mount Sinai he was told by Laura Giles, a Mount Sinai employee, that she could not provide him with details about his brother's death or advise him as to where the body was located because the pertinent hospital records had been "signed out" by another employee, Isabelle Danvers, who was on vacation, at that time. Plaintiff contends that the evidence demonstrates that Ms. Danvers was not on vacation and that Ms. Giles intentionally lied to John Melfi in order to conceal Mount Sinai's wrongdoing. Plaintiff further contends that John Melfi relied on Ms. Giles misrepresentation to his detriment, and, as a result, suffered pecuniary injury, which consisted of the costs of making telephone calls and traveling expenses. Although this Court finds that there is sufficient evidence to create issues of fact with respect to whether Ms. Giles made a misrepresentation of fact which she knew to be false for the purpose of inducing John Melfi to rely upon it, there is no evidence demonstrating that John Melfi relied on this misrepresentation to his detriment as alleged by plaintiff. The record does not demonstrate, even when viewed in the light most favorable to plaintiff, that John Melfi suffered any pecuniary injury as a result of the alleged misrepresentation.
Plaintiff also seeks to amend his complaint to add causes of action for intentional infliction of emotional distress and negligent infliction of emotional distress as asserted against Mount Sinai. However, the causes of action for the intentional and negligent infliction of emotional distress that plaintiff seeks to assert are duplicative of plaintiff's right of sepulcher cause of action, and, thus, are not permitted. See Leonard v. Reihardt, 20 AD3d 510 [2d Dept. 2005][the Court held that a cause of action alleging intentional infliction of emotional distress should be dismissed where it was duplicative of another tort cause of action brought by plaintiff]; Wolkstein v. Morgenstern, 275 AD2d 635 [1st Dept. 2000]["[g]enerally, a cause of action for the infliction of emotional distress is not allowed if essentially duplicative of tort or contract causes of action"]. As stated above, a cause of action for damages for a violation of the right of sepulcher seeks to recover damages for the emotional injuries flowing from a defendant's alleged unwarranted delay in notifying a plaintiff of the death of a family member, and the interference with the families' right to the possession of the remains. Similarly, the causes of action for intentional infliction of emotional distress and negligent infliction of emotional distress that plaintiff presently moves to add to his complaint, also seek to recover damages for emotional injuries sustained as a result of Mount Sinai's alleged violation of plaintiff's right of sepulcher. Therefore, this Court finds the infliction of emotional distress causes of action to be duplicative of the sepulcher cause of action, and denies that portion of plaintiff's motion to amend the complaint to assert these causes of action, as such an amendment would be unnecessary and inappropriate. See Spitzer v. Schussel, 2008 NY Slip Op. 01022 [1st Dept., Feb. 5, 2008].
B. New York City Health and Hospitals Corporation
Defendant NYCHHC presently moves to dismiss the entire action as asserted against it. At the outset it is noted that plaintiff has withdrawn all causes of action as against NYCHHC, except the sepulcher cause of action. With respect to that cause of action, NYCHHC seeks dismissal on grounds that plaintiff failed to file a timely notice of claim. NYCHHC further argues that summary judgment is warranted with respect to the sepulcher cause of action because (i) it was required by statute to offer the "unclaimed" remains of Leonard Melfi to a teaching institution, and (ii) it was under no duty to locate Leonard Melfi's next of kin and, as a governmental entity, it cannot be held liable for its discretionary decision not to locate them.
NYCHHC first argues that the sepulcher cause of action, as asserted against it, should be dismissed for a failure on the part of plaintiff to timely file a notice of claim. According to NYCHHC a cause of action for the loss of sepulcher could not have arisen after December 20, 2001, the date on which NYCHHC transferred decedent's body to DOC to be buried in the City Cemetery. Therefore, it is argued that the notice of claim filed on May 2, 2002, more than 90 days after the claim arose, was untimely. NYCHHC points out that plaintiff has never sought leave to file a late notice of claim, and because the statute of limitations has run the Court is now without discretion to grant such a motion. In opposition, plaintiff argues that the loss of sepulcher cause of action accrued when the family learned of decedent's burial in Potter's Field, in February of 2002, and, thus, notice of claim served on NYCHHC on May 2, 2002, was timely.
The parties have not cited, and this Court has not found, any case dealing with the precise issue of when the time to file a notice of claim, or to commence an action for that matter, begins to run when there is an alleged failure to notify the next of kin of the passing of a family member. For the following reasons, this Court finds that the time to file a notice of claim where there is such an alleged violation of the right of sepulcher begins to run when the decedent's family learns of such interference. First, as a violation of the right of sepulcher in the instant action involves the interference with a families right to the immediate possession of a decedent's body for preservation and burial, it is clear that such violation is not a singular event, such as a motor vehicle accident or a slip and fall, but involves the ongoing interference with the right to the possession of the remains of a deceased family member. Cf. Jensen v. City of New York, 288 AD2d 346 [2d Dept. 2001][alleged misreading of dental comparison performed by county morgue "was a singular act of negligence from which all potential damages arose." ]. The violation does not cease until a family is advised of the death and is able to take possession of the remains of the deceased. The injury, in such cases, does not simply occur on the date on which a deceased family member is mishandled or improperly buried, but continues until the family of the decedent is notified of the death and takes possession of the body, permitting them to provide a proper burial. Based upon the continuing nature of the wrongdoing in this case, it would not be appropriate to have a plaintiff's time to file a notice of claim running while a violation of the right of sepulcher is ongoing. Such a rule may result in a plaintiff having his time to file a notice of claim run despite the fact that the interference on the part of the defendant has yet to cease, a result that this Court does not find acceptable as it may, in effect, reward a defendant where the period of delay in notifying a family about the death of a loved one is greater than the period in which the family has to timely file a notice of claim. Such a result defies logic.
Further, because the violation of a right of sepulcher often involves a failure on the part of the defendant to timely notify a family of the passing of a family member, a plaintiff, in such a case, is, of course, not immediately aware of a defendant's failure to timely notify them of same. As the defendant's conduct is not immediately apparent to a plaintiff, the time in which to file a notice of claim in such a case should begin to run only when the wrongdoing has been discovered, such as in a medical malpractice case in which a foreign object is discovered in the body of a patient ( see CPLR § 214-a), and cases where injury is sustained due to the latent effects of exposure to toxic substances ( see CPLR § 214-c). The Court acknowledges that this type of discovery accrual is an exception to the general rule that a limitations period begins to run at the happening of an event from which the damages flow. See Kitonyi v. Albany County, 128 AD2d 1018. Notwithstanding, under the particular facts of the instant case the plaintiff should not be foreclosed from a judicial remedy simply because they were not alerted of the death of a loved one within 90 days from the date on which his body left the City Morgue. Accordingly, the notice of claim filed on May 2, 2002, was timely.
NYCHHC further argues that summary judgment is warranted with respect to the sepulcher cause of action because (i) it was required by statute to offer the "unclaimed" remains of Leonard Melfi to a teaching institution, and (ii) it was under no duty to locate Leonard Melfi's next of kin and, as a governmental entity, it cannot be held liable for its discretionary decision not to locate them. NYCHHC argues that pursuant to Public Health Law § 4211(1) it was required to offer Leonard Melfi's "unclaimed" body to certain enumerated teaching institutions. Therefore, according to NYCHCC, it can not be held liable to plaintiff for violation of the right of sepulcher for permitting the students of Nassau County Community College's Mortuary Science Department to practice embalming on Leonard Melfi's corpse. Public Health Law § 4211(1) basically sets forth that unclaimed cadavers shall be delivered to schools for study. Notwithstanding, section (3)(c) of Public Health Law § 4211 expressly states that "[n]o body of a deceased person shall be delivered or released to, or received by, any university college or school . . . if the deceased person is known to have a relative whose place of residence is known or can be ascertained after reasonable and diligent inquiry." [emphasis added].
Based upon the evidence submitted by the parties in connection with the instant motions, this Court finds that a question of fact exists as to whether Leonard Melfi's relatives could have been located and notified of Leonard's passing, if the staff at the City Morgue at Bellevue Hospital had conducted a reasonable and diligent inquiry as to the residences of his relatives as set forth by Public Health Law § 4211 (3)(c), thereby preventing using his corpse in a practice setting. Again, the evidence demonstrates that a call or visit to Leonard Melfi's home, the Narragansett Hotel, would have revealed the contact information for Leonard Melfi's niece, State Trooper Dawn Kosilla. Furthermore, a call to Joann Tedesco, the next of kin listed by Leonard Melfi on the Mount Sinai medical records, also may have led the staff at the City Morgue at Bellevue Hospital to some contact information for Leonard Melfi's relatives. The Court acknowledges the fact that the "Personal Particulars" relating to Leonard Melfi, including his address, date of birth and social security number, were all listed as "unknown" on the Certificate of Death completed by Mount Sinai. However, this would not preclude a jury from finding that a reasonable and diligent inquiry was required by the staff at the City Morgue at Bellevue Hospital to confirm that Leonard Melfi's body was, in fact, "unclaimed," especially since there is no indication that a police investigation had been performed.
NYCHHC further argues that the City Morgue was under no duty to locate Leonard Melfi's next of kin, and, thus, any decision made by the staff at the City Morgue was a discretionary act, for which a governmental entity such as the morgue has governmental immunity. However, based upon the finding that issues of fact exist as to whether Public Health Law § 4211 (3)(c) required the staff at the City Morgue to conduct an inquiry as to the location of Leonard Melfi's next of kin, this Court disagrees. Again, the statute requires that "[n]o body of a deceased person shall be delivered or released to, or received by, any university college or school . . . if the deceased person is known to have a relative whose place of residence is known or can be ascertained after reasonable and diligent inquiry." The question of whether the whereabouts of Leonard Melfi's next of kin could have been ascertained by the staff at the City Morgue after a "reasonable and diligent inquiry," and, thus, whether they were under such a duty to conduct such an inquiry is a question of fact that is to be determined by a jury. Accordingly, NYCHHC's motion is denied to the extent that it seeks dismissal of plaintiff's sepulcher cause of action.
C. City of New York s/h/a New York City Police Department, New York City Department of Corrections and New York City Department of Health
Defendant New York City (s/h/a the NYPD, the DOC and the DOH) presently move to dismiss the entire action as asserted against it. Plaintiff has withdrawn all causes of action as they relate to any tortious conduct on the part of the NYPD. With respect to the DOH and the DOC, plaintiff has withdrawn all causes of action as they relate to these entities, except the sepulcher cause of action. With respect to that cause of action New York City seeks dismissal on the ground that plaintiff failed to file a timely notice of claim. The City further argues that summary judgment is warranted with respect to the sepulcher cause of action because neither the DOH nor the DOC were under a duty to locate Leonard Melfi's next of kin and, as governmental entities, neither could be held liable for their discretionary decisions not to locate them.
Similar to the argument made by NYCHHC, the City argues that the sepulcher cause of action, as asserted against it based upon the alleged failures on the part of the DOH and the DOC should be dismissed for a failure on the part of plaintiff to timely file a notice of claim. However, as set forth above, this Court finds that under the facts of this case the time to file a notice of claim began to run when the decedent's family learned of his death, and, as a result, the notice of claim filed by plaintiff herein was timely. Notwithstanding, because neither the DOH nor the DOC were under a duty to locate Leonard Melfi's next of kin and, as governmental entities, neither could be held liable for their discretionary decision not to locate them, dismissal of the complaint, as asserted against the City, is warranted.
The law is well settled that "a municipality bears no liability for the negligent performance by its agents of governmental functions, absent the existence of a special relationship between the injured party and the municipality." Balsam v. Delma Engineering Corp., 90 NY2d 966; see also Levy v. State, 262 AD2d 230 [1st Dept. 1999]["[a] governmental entity acting with discretionary or reasoned judgment is immune from negligence suits"]. As set forth by the Court of Appeals, in Pelaez v. Seide , 2 NY3d 186:" [a] public employee's discretionary acts — meaning conduct involving the exercise of reasoned judgment — may not result in the municipality's liability even when the conduct is negligent.' To impose liability, there must be a duty that runs from the municipality to the plaintiff. We recognize a narrow class of cases in which a duty is born of a special relationship between the plaintiff and the governmental entity. When such a relationship is shown — and it is plaintiff's burden to establish it — the government is under a duty to exercise reasonable care toward the plaintiff." quoting, Lauer v. City of New York, 95 NY2d 95. A "special relationship" is found where (1) the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) the municipality voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) the municipality assumes positive direction and control in the face of a known blatant and dangerous safety violation. See Pelaez v. Seide, supra.
In the instant action it is undisputed that the DOH and the DOC are governmental entities. Further, it does not appear that plaintiff disputes the fact that the alleged wrongdoing on the part of these entities was perpetrated in the performance of their respective governmental functions, i.e., the issuance of burial permits (DOH) and the operation of the City Cemetery (DOC). Plaintiff, however, argues, "governmental immunity" does not apply in this instant action because the failures on the part of the DOH and DOC in identifying the remains as Leonard Melfi, and contacting his next of kin, were not discretionary acts of public employees, but were "ministerial" in nature because of duties imposed upon them by common law and statutory law. The plaintiff also argues that the DOH and the DOC violated a statutory duty enacted for the benefit of a particular class, and plaintiff herein is one of the class for whose particular benefit the statute was enacted. Therefore, according to plaintiff, liability may be imposed even if the alleged failures on the part of the DOH and the DOC were a result of discretionary acts involving the exercise of reasoned judgment. Both of these arguments set forth by plaintiff relating to this issue involve the question of whether the DOH and/or DOC had a duty imposed upon them to identify the remains at issue herein as that of Leonard Melfi and make efforts to contact his next of kin. The Court finds that no such duty existed.
In order to sustain liability against a municipality, and recover from the public purse, "the duty breached must be more than that owed to the public in general." Lauer v. City of New York, 95 NY2d 95. Liability will not be imposed upon a municipality "in performing a public function absent a duty to use due care for the benefit of a particular person or class of persons." As discussed above, the right of sepulcher existed at common law giving the next of kin a right to the immediate possession of a decedent's body for preservation and burial and permits an award of damages against any person who unlawfully interferes with that right or improperly deals with the decedent's body. See Gostowski v. Roman Catholic Church, 262 NY 320; Lott v. State of New York, 32 Misc 2d 296 [NY Ct. Cl. 1962]; Plunkett v. Downtown NYU Hospital , 21 AD3d 1022 [2d Dept. 2005]; Nesbit v. Turner , 15 AD3d 552 [2d Dept. 2005]. This common law right, and the resulting duty it imposes, have been defined by the Courts, and are owed to the public, in general. This duty does not rise to the level required to sustain liability against a municipality. Plaintiff points out that New York has enacted Public Health Law § 4200, which statutorily directs that every body of a deceased person in the State of New York "shall be decently buried or incinerated within a reasonable time after death." However, this statute cannot be read to impose a duty on DOH and/or DOC to identify the remains at issue herein as that of Leonard Melfi, and make efforts to contact his next of kin.
Plaintiff also points to several portions of the NYC Health Code, as well as Public Health Law § 4141, and argues that such sections impose a duty upon the DOH to conduct an investigation and locate Leonard Melfi's next of kin. However, a review of these sections reveal that no such duty has been imposed upon the DOH. It is noted that plaintiff's allegations of wrongdoing as against the DOH and the DOC raise questions that would require a jury to assess the reasonableness of the respective decisions of these governmental entities, and, thereby, second-guess considered legislative-executive decisions, with respect to how these entities function. Plaintiff seeks to have a jury assess the prudence of the governmental decision to not require the DOH to investigate the accuracy of death certificates or to locate a deceased's next of kin prior to issuing a burial permit, as well as question the lack of rules that would require the DOC to conduct an investigation with respect to the identity of bodies sent to the City Cemetery for burial, and attempt to locate the next of kin of these bodies. The very purpose of governmental immunity is to avoid such second guessing. See Balsam v. Delma Engineering Corp., supra. To permit recovery as against the DOH and DOC, this Court would be enlarging the responsibility of these entities.
Based on the foregoing, it is hereby
ORDERED that the motion by defendant New York City Health and Hospitals Corporation s/h/a Bellevue Hospital and Health and Hospitals Corporation to dismiss the action as asserted against it, pursuant to CPLR 3211(a)(7) and CPLR 3212, is denied to the extent that it seeks dismissal of the sepulcher cause of action, and granted in all other respects; and it is further
ORDERED that the motion by defendant Mount Sinai Hospital to dismiss any and all claims for punitive damages asserted in the complaint, as well as the fraudulent concealment claim, pursuant to CPLR 3016, CPLR 3211(a)(7) and CPLR 3212, is granted only with respect to the fraudulent concealment claim asserted against it in the complaint, and denied in all other respects; and it is further
ORDERED that the motion by the City of New York s/h/a New York City Police Department, New York City Department of Corrections and New York City Department of Health to dismiss the action as asserted against it, pursuant to CPLR 3211 and CPLR 3212, is granted in its entirety; and it is further
ORDERED that the motion by plaintiff for leave to amend the complaint, pursuant to CPLR 3025(b) and (c), is granted only to the extent that he may assert a cause of action for gross negligence against Mount Sinai in connection with the alleged acts of medical malpractice, and seek punitive damages in connection with that cause of action; and it is further
ORDERED that counsel for all parties are to appear before the court on May 5, 2008, at 9:30am, at 100 Centre Street, room 1306, Part 40D, for jury selection. Dated: 4/30/2008J.S.C. Check one: FINAL DISPOSITION NON-FINAL DISPOSITION Check if appropriate: DO NOT POST REFERENCE