Opinion
Index No. 603804/19 Motion Seq. No. 02
01-13-2022
COLLEEN FLYNN, KATHLEEN M. BUCZAK FISHER and STEPHEN BUCZAK, Plaintiffs, v. PINELAWN CEMETERY, A NEW YORK NOT-FOR-PROFIT CORPORATION d/b/a PINELAWN MEMORIAL PARK AND ARBORETUM, Defendants.
Unpublished Opinion
Motion Date 10/22/21
SHORT FORM ORDER
HON. RANDY SUE MARBER, Justice.
Papers Submitted:
Notice of Motion...............................................x
Affirmation in Opposition............................x
Reply Affirmation......................................x
Upon the foregoing papers, the motion by the Defendants, PINELAWN CEMETERY, A NEW YORK NOT-FOR-PROFIT CORPORATION d/b/a PINELAWN MEMORIAL PARK AND ARBORETUM ("Pinelawn"), seeking an Order, pursuant to CPLR § 3212, granting it summary judgment dismissing the complaint of the Plaintiffs, COLLEEN FLYNN ("Flynn"), KATHLEEN M. BUCZAK FISHER ("Fisher") and STEPHEN BUCZAK ("Buczak"), is decided as provided herein.
In this action, the Plaintiffs seek to recover damages for the alleged improper burials of Rudolph Buczak and Dorothy Buczak. The Plaintiffs are siblings and the children of Rudolph and Dorothy Buczak.
Rudolph Buczak passed away on May 17, 2012. His wife, Dorothy Buczak, passed away on October 22, 2017. Prior to their passing, on or about May 16, 2006, Rudolph and/or Dorothy Buczak purchased a double crypt plot from Pinelawn designated as Crypt 228, Spaces 2DD upper/lower, Plot 0, Range 19, Block No. 5, Section No. 50, Garden of West Fountain in the Alfred D. Locke Division of Pinelawn ("Crypt 228").
Rudolph Buczak was buried on May 21, 2012 in the lower vault of Crypt 226 in the Alfred D. Locke Division of Pinelawn ("Crypt 226"). The Plaintiffs allege that they were in attendance at Rudolph's burial and witnessed him being lowered into a pre-dug grave space. The Plaintiff, Fisher, alleges that, although her father's crypt space was not numbered at the time of his burial, she did make note of its location with reference to a nearby tree and based upon the frequency of her visits at the gravesite for nearly eight (8) years following his death. According to sworn testimony of Fisher, Rudolph Buczak was buried in Crypt 226, not Crypt 228.
Dorothy Buczak was buried on October 25, 2017 in the upper space of Crypt 228. Her casket was cherry wood with a brass nameplate. On November 2, 2017, about one week after Dorothy's burial, Fisher visited her mother's gravesite and documented that Crypt 228 still had not yet been re-sodded. At that time, Fisher also noticed that Rudolph's footstone was at the location of Crypt 226, and Dorothy's freshly dug grave with a temporary marker was at the location of Crypt 228. Fisher then advised the Vice President of Pinelawn that the marker for her mother's crypt was at the wrong location since Rudolph and Dorothy were supposed to be buried in the same crypt. In response, while Pinelawn offered to exhume both graves immediately, the Plaintiffs elected not to do anything at that time and instructed Pinelawn that it did not have their approval to further investigate.
On August 3, 2018, at the request of the Plaintiffs, Crypt 226 and Crypt 228 were disinterred. The disinterment of Crypt 226, the location of Rudolph's footstone, revealed a completely vacant lot. The disinterment of Crypt 228 (Upper) revealed Dorothy's casket which was removed and found to be in relatively good condition with her brass nameplate still affixed thereto. However, according to the Plaintiffs, the location and identification of Rudolph's interment site could not be confirmed because the casket in Crypt 228 (Lower) was in poor condition, could not be raised, and did not have any brass nameplate affixed thereto.
It is undisputed that the Plaintiffs were at their parents' respective funerals and observed both burials. It is also undisputed that there was no actual mishandling of Rudolph's body or Dorothy's body.
It is the Plaintiffs' belief that Rudolph Buczak was buried in the wrong location (Crypt 226) and subsequently removed from plot 226 sometime between the fall of 2016 and the spring of 2017. The Plaintiffs assert that the disinterment was to confirm where Rudolph Buczak was buried, however, no such information could be confirmed. The Plaintiffs further posit that certain statements made by Brian Groblewski, Vice President of Sales and Marketing for Pinelawn, and certain conduct on the part of Pinelawn and its agents, have led them to believe that Rudolph's casket was moved from Crypt 226 after his burial.
In support of its motion, defense counsel asserts that "this entire lawsuit involves the misplacement of a footstone on Crypt 226 as opposed to Crypt 228 and nothing more." It is the Defendant's position that the only error on the part of Pinelawn was the location of Rudolph's footstone at Crypt 226 instead of Crypt 228; that Plot 226 had never been opened prior to the exhumation on August 3, 2018; that between November 2, 2017 and August 3, 2018, Rudolph's casket was not moved from space 226 to space 228; and that plot 228 was not opened between October 25, 2017 and August 3, 2018. Further, according to the Defendant, there was no nameplate affixed to the bottom casket when Crypt 228 was exhumed because, according to the Defendant's records, the family did not purchase a nameplate for Rudolph. While this fact is disputed by the Plaintiffs, no evidence has been proffered to the contrary.
In their complaint, the Plaintiffs assert five causes of action: Count I asserts a claim for negligence and seeks damages for emotional distress and physical and physiological injuries; Count II asserts a claim for negligent infliction of emotional distress ("NIED"), stemming from the negligent mishandling of a corpse; Count III asserts a claim for tortious interference with a body/common law right of sepulcher; and Counts IV and V assert causes of action for intentional infliction of emotional distress ("IIED") and the tort of outrage, respectively. The Defendant now seeks dismissal of all claims arguing that there are no issues of fact with respect to any of the Plaintiffs' claims; and further, that Counts IV and V should also be dismissed on the additional ground that they are time-barred.
Legal Analysis:
It is well established that a party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Weingrad v New York Univ. Med.Ctr., 64 N.Y.2d 851, 853 [1985]; Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]; Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). Absent such a showing, the motion will be denied, irrespective of the sufficiency of the opposing proof (see Northside Sav. Bank v. Sokol, 183 A.D.2d 816 [2dDept. 1992]; Liberty Taxi Mgt. Inc. v. Gincherman, 32 A.D.3d 276 [1st Dept. 2006]). Alternatively, to defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact (CPLR § 3212 [b]; Vermette v. Kenworth Truck Co., 68 N.Y.2d 714 [1986]; Forrest v. Jewish Guild for the Blind, 309 A.D.2d 546 [1st Dept. 2003]).
Negligent Infliction of Emotional Distress and the Common Law Right of Sepulcher:
A cause of action for negligent infliction of emotional distress generally requires plaintiff "to show a breach of duty owed to her which unreasonably endangered her physical safety, or caused her to fear for her own safety" but an "exception permits recovery for emotional harm to a close relative resulting from negligent mishandling of a corpse" (Schultes v Kane 50 A.D.3d 1277 [3d Dept. 2008], citing Johnson v. State of New York, 37 N.Y.2d 378, 382 [1975]; Graber v. Bachman, 27 A.D.3d 986, 987 [2006]; Miller v. Chalom, 269 A.D.2d 37, 40 [2000]).
To maintain a claim for NIED, there must be allegations of conduct "so extreme in degree and outrageousness in character as to go beyond all bounds of decency, so as to be regarded as atrocious and utterly intolerable in a civilized community."
"The common-law right of sepulcher affords the deceased's next of kin an absolute right to the immediate possession of a decedent's body for preservation and burial ... and damages may be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent's body" (Gutnick v Hebrew Free Burial Society for the Poor of the City of Brooklyn, 198 A.D.3d 880,155 N.Y.S.3d 565,567-568 [2dDept. 2021], citing Shipley v. City of New York, 25 N.Y.3d 645, 653 [2015] [internal quotation marks omitted]; Turner v. Owens Funeral Home, Inc., 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 [citations omitted]; see Fox v. Mark, 181 A.D.3d 560, 564). "The right itself is less a quasi-property right and more the legal right of the surviving next of kin to find solace and comfort in the ritual of burial" (Shipley v. City of New York, 25 N.Y.3d at 653; Fox v. Mark, 181 A.D.3d at 564; Martin v. Ability Beyond Disability, 153 A.D.3d 695, 697).
"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 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" (Turner v. Owens Funeral Home, Inc., 189 A.D.3d at 912-913, quoting Green v. Iacovangelo, 184 A.D.3d at 1200).
Here, the Plaintiffs cannot maintain a claim for violation of their common-law right of sepulcher since there is no evidence that the Defendant interfered with the Plaintiffs' right to "immediate possession" of their father's body. Indeed, the deposition testimony unequivocally establishes that the three children were present at their father's funeral and had no interference of their right to find "solace and comfort in the ritual of burial". To the extent that the Plaintiffs are seeking damages for the purported wrongful disinterment of their father based on the belief that his casket was moved from the wrong crypt to the correct crypt following his burial, such a cause of action is not viable in New York. There are Appellate Division decisions where actions predicated upon a cause of action for wrongful disinterment have been dismissed (See Brandenburg v St. Michael's Cemetery, 92 A.D.3d 631 [2d Dept. 2012]; Schultes v Kane, 50 A.D.3d 1277 [3rd Dept 2008]; Estate of LaMore v Sumner, 46 A.D.3d 1262 [3d Dept. 2007]; Unz v. Greenfield Cemetery, 234 A.D.2d 360 [2d Dept 1996]; Olin v Torf, 126 A.D.2d 252 [3d Dept 1987]).
In Brandenburg, the Appellate Division, Second Department affirmed the lower court's dismissal of decedent's wife's claim for emotional distress where the cemetery's failed to obtain consent of the decedent's family before disinterring the decedent's body from the wrong crypt and relocating the body to the correct crypt. The Appellate Division held that the cemetery's violation of its statutory duty to obtain such consent did not give rise to a cause of action for emotional distress where the decedent's body always remained in the casket and was not mishandled or in any way desecrated during the process of removal from one crypt to the other (Brandenburg, 92 A.D.2d at 633).
In Estate of Lamore, supra, another case involving wrongful disinterment and relocation of a dead body without the family's consent, the Appellate Division, Third Department found that there were no allegations that the decedent's body, which remained encased in the burial vault, was mishandled in any way during the disinterment or reinterment. Moreover, the Court held that there were no special circumstances that might reasonably be characterized as an act of desecration or otherwise give rise to "an especial likelihood of genuine and serious mental distress" (46 A.D.3d at 1264).
In an age-old case entitled Gostkowski v R. C. Church of Sacred Hearts of Jesus and Mary, 262 N.Y. 320 [1933], the plaintiff's wife had been buried and subsequently relocated to another plot at the direction of the head of the cemetery, a local priest. In that case, outrageous conduct was found where the body was disinterred without consent and the priest, who evidently had an overwhelming dislike for Polish people, was verbally abusive to the decedent's family.
In the matter of Massaro v O'Shea Funeral Home, 18 months after the decedent was placed in a casket and the body was interred in mausoleum at the cemetery, the decedent's granddaughter noticed noxious odor coming from the mausoleum. As a result, the decedent's casket was disinterred in the presence of the family, and it was discovered that the casket was cracked and its contents leaking. The casket was then sealed and replaced in the mausoleum. In that case, the Appellate Division, Second Department found, "the fact that [plaintiff] has not sought any medical treatment or psychological counseling for his alleged injuries...does not necessarily preclude his recovery", because "[i]n a case such as this, 'there exists an especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious'" (Massaro, 292 A.D.2d 349, 351 [2d Dept. 2002]). The Court also referenced cases where such special circumstances exist, noting:
Although a cause of action involving the mishandling of a corpse generally "requires a showing of interference with the right of the next-of-kin to dispose of the body" (Roach v Stern, 252 A.D.2d 488, 491; see, Darcy v Presbyterian Hosp., 202 NY 259), the next-of-kin may also recover where one "improperly deals with the decedent's body" (Lott v State of New York, 32 Misc.2d 296, 297 [claimants entitled to recover where the decedent's body, inter alia, "was physically manhandled by means of an unauthorized embalming and the application of cosmetics, both in direct violation of the religious beliefs of the deceased and her family" (supra at 298)]; see, Gostkowski v Roman Catholic Church of Sacred Hearts of Jesus & Mary, 262 NY 320 [the plaintiff allowed to recover where his deceased wife's body was exhumed from plot without his authorization]; Thompson v Duncan Bros. Funeral Homes, 116 Misc.2d 227 [the decedent's mother recovered damages for emotional injuries resulting from the defendant's negligent handling and embalming of her son's body]; Carter v Malojf, 251 A.D.2d 979).
Here, the Defendant also claims that dismissal is warranted due to Plaintiffs' failure to seek any medical treatment or psychological counsel for their alleged injuries. However, contrary to the facts in Massaro, in this matter, there are no special circumstances that would demonstrate "an especial likelihood of genuine and serious mental distress". Rather, the Plaintiffs merely believe that their father's casket was relocated from Crypt 226 to Crypt 228 at some point after the burial. These facts, standing alone, do not rise to the level of special circumstances as described in the foregoing cases. There was no interference with the Plaintiffs' right to immediate possession of the dead body, nor was the decedent's body physically manhandled or mishandled by any means.
There is also no evidence in the record of any malice or wanton conduct on the part of the Defendant, Pinelawn, such that the Plaintiffs would be entitled to recover damages. Nor is there any claim of intentional or negligent mishandling of the bodies during the disinterment that was performed at the behest of the Plaintiffs. Even viewing the facts in a light most favorable to Plaintiffs as the non-moving parties, there is no material issue of fact regarding their claims for NIED or the common-law right of sepulcher. As such, Counts II and III for NIED and the common-law right of sepulcher must be dismissed.
Negligence:
Relying on Johnson v State of New York, supra, counsel for the Plaintiffs argues that the negligence claim should survive based on the Defendant's negligence in placing Rudolph's footstone at the wrong gravesite. It is argued that the improper placement of the footstone, as conceded by the Defendant, caused misinformation to be conveyed to the Plaintiffs, who for over six years traveled to the cemetery to grieve at their father's gravesite.
The Plaintiffs' reliance on Johnson is misplaced. In that case, the Court found that a plaintiff who was misinformed that a family member passed away was entitled to recover for that harm, and only if supported by objective manifestations of that harm. In Johnson and its progeny, misinformation regarding the death of a family member (i.e. wrongfully told that the decedent died or belatedly informed of the death), has commonly been recognized as an actionable claim for which family members may recover. Unlike Johnson, here, the Plaintiffs were never misinformed by anyone regarding their parents' death. As previously noted, the Plaintiffs were present at their parents' respective funerals and witnessed the burials.
The cases relied upon by the Plaintiffs' attorney in opposition to the Defendant's motion are similarly distinguishable from the circumstances presented here. For instance, in Prescott v Turner, 15 A.D.3d 557 [2d Dept. 2005], the body of a Brinell Prescott was delivered to the funeral service of a different person by the name of Bernice Cassano; and Brinell Prescott was interred in a plot designated for Bernice Cassano. The body of Brinell Prescott was later exhumed and identified by the Prescott family, who had to make other arrangements which delayed the funeral. Under those circumstances, the Court found that a question of fact exists as to whether the defendants were negligent in allegedly unlawfully interfering with the plaintiffs' right to the possession of the body of Brinell Prescott for preservation and burial (Prescott, 15 A.D.3d at 558); see also Nesbit v Turner, 15 A.D.3d 552 [2d Dept. 2005]).
Likewise, in Henderson v Kingsbrook Jewish Med. Ctr., 91 A.D.3d 720 [2d Dept. 2012], there was a delay in releasing the decedent's body to the funeral home the plaintiffs chose following the death, despite the plaintiffs' inquiries and efforts to obtain an earlier release. The Court found that the plaintiffs' complaint stated a viable cause of action alleging a violation of their right of sepulcher (91 A.D.3d at 721). To the contrary, here, no such circumstances exist.
In finding that the Plaintiffs have not proffered enough evidence to sustain their negligence claim, the Court does not mean to minimize the impact of visiting a grave believed to be their father's that was later learned to be vacant and understands that the Plaintiffs feel that they have been aggrieved. Nevertheless, however, the simple fact remains that New York law does not appear to permit recovery solely for emotional damages under the circumstances presented here. Accordingly, the Defendant's motion for summary judgment as to Count I for negligence, is granted.
Intentional Infliction of Emotional Distress and Tort of Outrage:
The Court finds, based on the particular circumstances of this case, the Defendant's conduct does not rise to the level of "extreme and outrageous conduct", and as such, Counts IV and V cannot be maintained.
Accordingly, it is hereby
ORDERED, that the motion by the Defendant, seeking an Order, pursuant to CPLR § 3212, granting it summary judgment dismissing the complaint of the Plaintiffs, is GRANTED, and the Complaint is hereby DISMISSED.
This constitutes the decision and Order of this Court.