Opinion
1559/09.
Decided December 15, 2010.
Brian M. Limmer, Plaintiff Pro Se, Mineola, NY.
Beth J. Limmer, Plaintiff Pro Se, Mineola, NY.
Steward H. Friedman, Esq., Attorney for Defendants, Lake Success, NY.
This motion by the defendants Gutterman's Inc. and Steven Kanowitz for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint against them is granted to the extent provided herein.
The plaintiffs in this action seek to recover damages for the alleged mishandling of the plaintiff Brian Limmer's mother's funeral as well as the defendants' alleged conduct in the aftermath thereof which the plaintiffs allege entailed an inappropriate, unprofessional attempt to compensate them for the their negligent handling of the funeral. They allege that the defendants' conduct violated the standards promulgated by the National Funeral Directors' Association for Funeral Homes and Directors insofar as they provide that "members have an ethical obligation to serve each family in a professional and caring manner, being respectful of their wishes and confidences, being honest and fair in all dealings with them. . ."
The plaintiffs allege that the defendants negligently supervised and conducted the plaintiff Brian Limmer's mother's funeral procession from Gutterman's Inc.'s funeral home in Rockville Centre to the cemetery on February 15, 2006. More specifically, they allege that the defendants were negligent in hiring an independent contractor inexperienced in funeral affairs to transport Mr. Limmer's mother's corpse due to defendants' overbooking. That, they allege, caused the car transporting Mr. Limmer's mother's corpse to depart the funeral home prematurely and resulted in a substantial delay in theirs' as well as others' departure from the funeral home after the hearse transporting Mr. Limmer's mother left. The plaintiffs allege that they were waiting behind the wrong hearse for a period of time pursuant to defendants' instructions until the plaintiffs discovered the error. They additionally allege that defendants' employee then mistakenly instructed them to follow another hearse which again was the wrong one. These things combined allegedly culminated in the plaintiffs arriving at the decedent's grave side funeral service late. The plaintiffs allege that Brian experienced extreme emotional distress because he had reason to fear that he would miss his mother's internment at the cemetery, since the defendants allegedly never advised him that the service would be delayed until he arrived. The plaintiffs allege that they as well as others in attendance in fact missed a part of the decedent's grave side service.
The plaintiffs further allege that as a result of the defendants' negligence, a dispute over the defendants' bill arose. They allege that despite knowing about Mr. Limmer's emotionally sensitive and physically frail state, the defendants conducted themselves in an insensitive fashion, for instance, by paying a visit to Mr. Limmer's home in an attempt to resolve the bill while he was sitting shiva; by telling him that they had been told he gets lost easily; by asking whether he takes money off his clients' bill when he is late for court; and, by threatening to file a grievance against him as a practicing lawyer during the telephone conversation of February 21, 2006. The plaintiffs allege that telephone conversation ultimately caused Mr. Limmer to severely injure his back when after a contentious conversation with the defendant Steven Kanowitz, he sprang from his chair and turned causing lumbar injury to his back which required surgery. The plaintiffs allege that the defendants' handling of the funeral and the ensuing fee dispute was outrageous, unprofessional, insensitive, uncaring and in contravention of the Code of Conduct of the National Funeral Directors' Association.
As for Mr. Limmer's injuries, the plaintiffs allege that he not only sustained an injury to his back but in addition, to date, "[he] is still being treated for grief syndrome and post traumatic stress disorder as a result [of the] defendant's conduct and [that] the physical injury and its manifestations is permanent."
As and for their first cause of action, the plaintiffs seek to recover for negligent malpractice and breach of contract. They allege that the defendants deviated from commonly accepted Funeral Home and Funeral Director standards and failed to conduct the funeral service and internment of the decedent properly. As and for their second cause of action, the plaintiffs seek to recover for negligence. They allege that "the defendants . . . were careless, reckless and/or negligent with respect to the management, maintenance, supervision and/or control of its respective business, officers and responsibilities causing the defendants to fail to provide the plaintiff with a Funeral Service and internment in a professional manner thereby causing the plaintiff to become injured and damaged [and] [t]hat the acts and/or omissions of the defendants . . . was/were the proximate cause of plaintiff's injuries and damages. . ." As and for their third cause of action, the plaintiffs seek to recover for negligent infliction of emotional distress. And as for their fourth cause of action, the plaintiff Mrs. Limmer seeks to recover for loss of consortium. The plaintiff Brian Limmer seeks to recover for his injuries which include "physical pain, mental anguish and psychological disturbance" for all causes of action.
The defendant seeks summary judgment dismissing the plaintiff's complaint. Succinctly put, they allege that their alleged misconduct did not proximately cause the plaintiff Mr. Limmer's back injury.
"On a motion for summary judgment pursuant to CPLR 3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." Sheppard-Mobley v King , 10 AD3d 70 , 74, aff'd. as mod., 4 NY3d 627, citing Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers." ( Sheppard-Mobley v King, supra, at p. 74; Alvarez v Prospect Hosp., supra; Winegrad v New York Univ. Med. Ctr., supra). Once the movant's burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact. ( Alvarez v Prospect Hosp., supra, at p. 324). The evidence presented by the opponents of summary judgment must be accepted as true and they must be given the benefit of every reasonable inference. (See, Demishick v Community Housing Management Corp., 34 AD3d 518, 521, citing Secof v Greens Condominium, 158 AD2d 591).
The defendants' motion will be permitted despite its tardiness. The defendants have established good cause for their delay.( Richardson v JAL Diversified Management , 73 AD3d 1012 , citing Brill v City of New York , 2 NY3d 648 ; McArdle v 123 Jackpot, Inc. , 51 AD3d 743 ; Sclafani v Washington Mut. , 36 AD3d 682 ).
In seeking summary judgment, the defendants maintain that "this is an action arising out of alleged injuries sustained by the plaintiff, at his law office, on or before February 21, 2006' which allegedly occurred at the conclusion of his telephone conversation with the defendant Steven Kanowitz." More specifically, the defendants note that "at the conclusion of [that] telephone conversation . . ., plaintiff hung up the phone and then inexplicably stood straight up from his chair [and] that as a result, he sustained injuries which required lumbar surgery." In seeking dismissal of the complaint in its entirety, the defendants maintain that "the plaintiff's actions were not foreseeable" and that they "had no legal duty to the plaintiff with respect to the phone call."
In urging dismissal of the complaint in its entirety, the defendants have mischaracterized and inexplicably limited the totality of the claims advanced by the plaintiffs' in their complaint. The conduct by the defendants which the plaintiffs challenge here goes far beyond the phone call of February 21, 2006 and more importantly, the plaintiffs' damages are not limited to Mr. Limmer's back injury. As the defendants' motion to dismiss the complaint in its entirety is predicated upon this mischaracterization and erroneous limitation of the plaintiffs' claims and damages, dismissal of the complaint in its entirety does not lie.
Turning to the merits, while the defendants maintain that "the plaintiffs' causes of action in their complaint are not actionable," the defendants have not established that the plaintiffs' substantive claims lack merit. There are, inter alia, clearly issues of fact regarding the defendants' conduct of Mr. Limmer's mother's funeral as well as their conduct in the aftermath. Similarly, while the defendants maintain that "the plaintiff's injury came about only after he made the unilateral decision to jump out of his chair, after hanging up the telephone with Mr. Kanowitz over a business dispute," additional injuries have in fact been alleged in the complaint which have not been addressed here.
Nevertheless, the defendants are correct that the defendants may not recover damages for Mr. Limmer's back injury. (See, Buchholz v Trump 767 Fifth Avenue, LLC , 5 NY3d 1 ; Martinez v Lazaroff, 48 NY2d 819; Guida v 154 West 14th St. Co., 13 AD2d 695, aff'd, 11 NY2d 731).
"To establish a prima facie case on the issue of causation, a plaintiff must show that the defendant's act was a substantial cause of the events which produced the injury." ( Mack v Altmans Stage Lighting Co. Inc., 98 AD2d 468, 470, citing Derdiarian v Felix Contracting. Corp., 51 NY2d 308, 315; Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 520; Sewar v Gagliardi Brothers Service, 69 AD2d 281, 289, aff'd 51 NY2d 752. Restatement, Torts 2d, § 431; 1 NY PJI 2:70).
In ascertaining whether the defendant's conduct constitutes a substantial factor in bringing about the harm of which the plaintiff complains, consideration should be given to (1) the aggregate number of factors involved which contribute towards the harm and the effect which each has in producing it, (2) whether the defendant has created a continuous force active up to the time of harm, or whether the situation was acted upon by other forces for which the defendant is not responsible, and (3) the lapse of time. Mack v Altmans Stage Lighting Co. Inc., supra at p. 470-471.
"The foreseeability that is indigenous to negligence is not always the same as the foreseeability relevant to causality, since the latter essentially is to be viewed as of the time when the damage was done while the former relates to the time when the act or omission occurred." ( Sewar v Gagliardi Brothers Service, supra at p. 759, [concurring opinion of Fuchsberg, J.]; see also, Monahan v Weichert, 82 AD2d 102, 108). "Thus, while the fact that a defendant did not foresee the precise manner in which the accident occurred will not excuse liability, if, with the benefit of hindsight, it appears highly extraordinary that defendant's act should have brought about the harm, the act will not be considered a proximate cause" ( Mack v Altmans Stage Lighting Corp., supra at p. 471, citing Derdiarian v Felix Contracting Corp., supra at p. 315; Ventricelli v Kinney System Rent A Car, 45 NY2d 950, 952; Restatement, Torts 2d, § 435).
"The chain of causation, once established, may still be broken by an intervening act. Again, foreseeability furnishes a rough gauge" ( Mack v Altmans Stage Lighting Corp., supra at p. 471). "A defendant remains liable for all normal and foreseeable consequences of his acts." ( Mack v Altmans Stage Lighting Corp., supra at p. 471; Nallan v Helmsley-Spear, Inc., supra, at pg. 520-521; Parvi v City of Kingston, 41 NY2d 553, 560). However "an intervening act will constitute a superseding cause and will serve to relieve defendant of liability when the act is of such an extraordinary nature or so attenuates defendant's [conduct] from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant.'" ( Mack v Altmans Stage Lighting Corp., supra at p. 471, citing Kush v City of Buffalo, 59 NY2d 26, 33; Martinez v Lazaroff, supra; Rivera v City of New York, 11 NY2d 856).
"The risk reasonably to be perceived defines the duty to be obeyed." ( Palsgraf v Long Island R. Co., 248 NY 339). "Foreseeability of risk is an essential element of a fault-based negligence cause of action because the community deems a person at fault only when the injury-producing occurrence is one that could have been anticipated." ( Di Ponzio v Riordan, 89 NY2d 578, 583, citing Prosser and Keeton, Torts § 31 at 169-170 and n. 15 [5th ed]). "Further, although virtually every untoward consequence can theoretically be foreseen with the wisdom born of the event,' the law draws a line between remote possibilities and those that are reasonably foreseeable because [n]o person can be expected to guard against harm from events which are so unlikely to occur that the risk would commonly be disregarded." ( Di Ponzio v Riordan, supra at p. 583, quoting Prosser and Keeton, Torts § 31 at 170 and [5th ed]). "[C]onduct is considered negligent when it tends to subject another to an unreasonable risk of harm arising from one or more particular foreseeable hazards. ( Di Ponzio v Riordan, supra at p. 584, citing Restatement [Second], of Torts § 281, at 6). Accordingly, "[w]hen the person is harmed by an occurrence resulting from one of those hazards, the negligent actor may be held liable. In contrast, where the harm was caused by an occurrence that was not part of the risk or recognized hazard involved in the actor's conduct, the actor is not liable." ( Di Ponzio v Riordan, supra at p. 584, citing Restatement [Second] of Torts, § 281 at 6).
"Questions of foreseeability are for the court to determine as a matter of law when there is only a single inference that can be drawn from the undisputed facts." ( Pinero v Rite Aid of New York, Inc., 294 AD2d 251, 252, citing Pepic v Joco Realty, Inc., 216 AD2d 95).
The risks of the contentious volatile telephone conversation between the plaintiff Mr. Limmer and the defendant Steven Kanowitz on February 21, 2006 — particularly physical harm — was minimal and unforeseeable as a matter of law. The plaintiff's back injury was not proximately caused by the telephone conversation but rather by a sequence of events that could not reasonably have been foreseen or protected against by the defendants.
The defendants' motion is therefore granted to the extent that the plaintiffs' claim(s) to recover damages resulting from Mr. Limmer's back injury is dismissed.