Opinion
Index 12017-811195
06-13-2018
NICHOLAS TRBOVICH, JR., PAMELA TRBOVICH, Plaintiff's, v. KENNETH TRBOVICH, F, E. BROWN SONS FUNERAL HOME, INC., TIMOTHY J. GARDNER, .JOHN DOES 1-4, Defendants,
Joseph G. Makowski, Esq, Attorney for Plaintiffs Vincent E. Doyle, IE, Esq. Connors LLP Attorney for Defendant, Kenneth Trbovich Kimberly M. Thrun, Esq. Lewandpwski & Associates Attorney for Defendant, F.E. Brown Sons Funeral Home, Inc. and Timothy J, Gardner
Unpublished Opinion
Joseph G. Makowski, Esq, Attorney for Plaintiffs
Vincent E. Doyle, IE, Esq. Connors LLP Attorney for Defendant, Kenneth Trbovich
Kimberly M. Thrun, Esq. Lewandpwski & Associates Attorney for Defendant, F.E. Brown Sons Funeral Home, Inc. and Timothy J, Gardner
MEMORANDUM DECISION
Donna M. Siwek, J.
Defendant Kenneth Trbovich ("Kenneth") seeks an order of this Court dismissing the complaint in its entirety and the defendants F.E. Brown Sons Funeral Home, Inc. and Timothy: J. Gardner ("Brown defendants") have also moved, to dismiss plaintiffs' complaint pursuant to CPLR §3211. Plaintiff opposes: both motions.
Oral argument on these motions was heard on January 1 ]', 2018. thereafter, the parties agreed to avail themselves of court sponsored mediation, and the Court reserved decision on the .defendants* motion while the parties investigated the possibility of resolution by attending ADR mediation conducted by Hon. Eugene F. Pigotr, Jr. We were apprised on June 8, 2Q18 that the matter is not settied and that Judge Ptgott has declined to extend any further efforts to mediate this matter.
This action was commenced by the plaintiffs with the filing of a Summons with Notice on August, 1-1, 2(317, at which, time the plaintiffs moved by Order to Show Cause for a preliminary injunction and temporary restraining order (See Doyle Exhibit "B"). On August 11, 2017, plaintiffs' Order to Show Cause with temporary restraining order was granted (See Doyle Exhibit "C"). The Court granted an Amended Order to Show Cause with temporary restraining order later on the evening of August 11, 2017 (See Doyle Exhibit "D"). Thereafter on August 14, 2017, Kenneth served a Demand for Complaint (See Doyle Exhibit "E") and on September 6, 2017j.plaintiffs-filed an Amended Summons (See Doyle, Exhibit "F"), Second Amended Summons (See Doyle Exhibit "G") and Verified Complaint (See Doyle Exhibit "H').
Kenneth Trbovich asserts that the Complaint fails to state a legally viable claim against him for negligent or intentional emotional distress or prima facie tort and should be dismissed. Moreover, he argues that based upon the documentary evidence, there is no viable claim: against him. Lastly, Kenneth argues that he is shielded from liability pursuant to New York Public Health Law §4201(6). Similarly, the Brown defendants argue that the plaintiffs' complaint fails to state a cause of action for negligent or intentional infliction of emotional distress, and & prima facie tort.
The facts are set forth in the Affidavits of Kenneth D. Trbovich and Nicholas Trbovich ("Nick, Jr.")- Kenneth and Nick Jr. were two of five children of Dr. Nicholas Trbovich ("Dr. Trbovich")who passed away on August 8, 2017. By written document dated November 14, 2012, Dr. Tibovich made provisions relative to the disposition of his remains at the time of his death and appointed Kenneth as his agent with respect to control and disposition of his remains (See Appointment, of Agent to Control Disposition of Remains attached to Kenneth Trbovich Affidavit, Exhibit "A", N.Y. Public Health Law §4201 [7]). The Appointment set forth two Special Directions, (1) that the wake take place at a funeral home in East Aurora, New York and (2) that Dr. Trbovich be buried across from his first wife in a family mausoleum in Lake View Cemetery (See Kenneth Trbovich Exhibit "A"). Dr. Trbovich also executed a will on May 10, 2013 (See Kenneth Trbovich Exhibit "B") naming the defendant and his brother Michael Trbovich as co-Executors of Dr. Trbovich's estate. Michael and Kenneth Trbovich have been appointed as co-Executors (See Exhibit “C").
"The wake took place at the Brown Funeral Home in Orchard Park (not East Aurora), ; but that is not a contested matter for purposes of this litigation.
At the time of Dr. Trbovich's deaths Kenneth made arrangements with co-defendant F.E. Brown Sons Funeral Home for awake and funeral. Defendant Gardner, acting on behalf of F, E. Brown, arranged, to provide, the various sendees in connection with disposition of the remains of Dr. Trbovich and relied on the representations of Kenneth that he was entitled to arrange for the disposition of Dr. Trbovich's remains. Kenneth alleges that Nick Jr. was .estranged .from his father, and that estrangement is highlighted by his father's will. The will provides "1 have made no provision in this my Last Will and Testament for my son Nicholas, Jr. and. his descendants for reasons which I deem sufficient," (See Trbovich Exhibit "B"). It is alleged that the estrangement between Nick Jr. and his father rose put of a dispute over the family business, Servotronics. According to Kenneth, for the last five years of his life, Dr. Trbpvich did not speak with Nick Jr. and requested that Nick Jr. not contact him.
In opposition to the motion, Nick Jr. acknowledges1 that he was estranged from his-brother Kenneth as the result of long-standing business disputes. At the time of his father's death, Nick Jr. maintains mat he was not invited to the wake and his name was intentionally omitted from his father's obituary published in the Buffalo News on August 10, 2017. Nick Jr. also alleges that conversations took place between his attorney, Randy Oppenheimer and one of Kenneth Trbovich's attorneys, Michael Lennon, relative to his attendance at the wake. Nick Jr. maintains that Kenneth's attorney-proposed that if Nick Jr. .would sign a, waiver of his rights against his father's estate, Kenneth Would consider permitting Nick Jr. to attend the wake.. Nick Jr. then commenced this action seeking an order to permit his attendance at the wake. Nick Jr. claims that "due to the extreme emotional distress that 1 was suffering as a result of defendant Kenneth Trbovich's actions, I was required to consult with my physician, who prescribed increased medication to relieve my anxiety. I remain on this, medication to date." (See Affidavit of Nicholas Trbovich, Jr. at.¶5).
Less than two hours before the wake was to begin,, plaintiffs presented to the Court, an Order to Show Cause seeking temporary relief. Specifically, plaintiffs, requested a temporary restraining order prohibiting Kenneth Trbovich, together with his agents, servants and employees from directly or indirectly barring,, interfering, hindering or prohibiting the plaintiffs from attending Dr. Trbovich's wake which was to be held between the hours of 6:00 p.m. to 10:00 p.m. at the F.E. Brown Sons Funeral Home, Inc.. The Court provided an opportunity for Kenneth's attorney, Michael Lennon, Esq., to be heard on the matter. It was represented to the Court by plaintiffs' attorney, Joseph Makowski that Nick Jr. was not totally estranged from his father and that he was distraught over his father's passing-and. wanted to attend the wake. The Court was never apprised that Kenneth had been designated the agent to control disposition of remains pursuant to Public. Health Law §4201 (7), however, Mr. Lennon contested NickJr.'s allegation that he had any relationship with his father and argued it was appropriate for Kenneth to bar the plaintiffs from the wake. Given the exigency of the circumstances, the Court temporarily enjoined and restrained Kenneth, "his agents, servants and employees from, barring, hindering, interfering or prohibiting Nicholas Trbovich, Jr. and members of his family, from attending the wake of Nicholas Trbovich, Sr.. oh Friday, August 11, 2017 at F.E. Brown Sons Funeral Home, Inc. between 5:00 p.m.and 6:00 p.m." The wake was scheduled between 6:00 p.m. and 10:00 p.m. The Court's TRO envisioned providing plaintiffs an opportunity to attend the wake before the scheduled arrival of other family members and guests at 6:00 p.m. Additionally, plaintiffs' counsel, as requested by the Court, agreed to accompany plaintiffs to the wake to ensure they abided by the one-hour restriction and so as to avoid any further family strife.
Upon his arrival at F.E. Brown Sons Funeral Home at 5:00 p.m. on August 11, 2017, defendant Timothy Gardner, on behalf of F.E. Brown Sons Funeral Home, Inc., and private security guards (which plaintiffs allege were hired by Kenneth) denied Nick Jr. access to die funeral home. According to Nick Jr.'s attorney, Mr. Makowski, Orchard Park police informed him and the plaintiffs that they would arrest the plaintiffs if they attempted to walk onto" the property of Brown Funeral Home. According to Makowski, the funeral home did not fee! they were bound by the Court order. Plaintiffs' counsel presented a second. Order to. Show Cause to the court thereafter, which was signed later that night with more specific language enjoining Kenneth Trbovich, Ms agents, servants, and employees, including but not limited to F.E. Brown Sons Funeral Home, Inc., together with its agents, servants and employees, including Timothy J. Gardner, Paul Lyons, James. Ryan and Theresa Imhof from barring, hindering, interfering or prohibiting. Nick Jr. and members of his family to attend the wake of Dr. Trbovich between 8:30 p, m. and 9:30 p.m. and directed that Nick Jr. and: his wife and their attorney could attend the wake of Dr. Trbovich between the hours of 8:30 and 9:30 p.m. that evening. Nick Jr. was refused entry alter the second Order as well. Plaintiff alleges that he was denied access to the funeral home and was threatened with arrest should he attempt to enter me funeral home premises. He asserts that the defendants' conduct was extreme and outrageous, causing him to suffer severe emotional distress and that he feared for his physical safety when he was denied access.
The second Order to Show Cause was signed, at my residence only after phone calls by the Court to the funeral home went unretumed, notwithstanding assurances by a-funeral home employee that a call to the court Would be forthcoming;
Plaintiffs complaint sets forth causes of action for intentional infliction of emotional distress, negligent infliction of emotional distress, prima facie tort and loss of consortium.
Legal Standard
In determining whether a complaint fails to state a cause of action under CPLR §3211(a)(7), the Court must accept the facts as alleged in the complaint as true and accord: the plaintiff the benefit of every possible inference. We must liberally construe the allegations and determine if the four corners of the. complaint and submissions in opposition to, the motion fit into any cognizable theory. See, 511 West 232nd Owners Corp. v. Jennifer Realty. Co., 98 N.Y.2d 144 (2002); Leon v. Martinez, 84N.Y, 2dS3 (1994); (the issue is whether plaintiffs have a cause of action); Carlson v. American International Group, Inc., 130 A.D.3d 1479 (4th Dept. 2010); Gilewicz v. Buff Gen. Psych., 118 A.D.3d 1298 (4, h Dept. 2014).
I. Public Health Law §4201(7).
The Brown defendants rely on NY Public Health Law §4201(7) which provides that "No...funeral director..-, or funeral firm shall beheld, liable for actions taken reasonably and in good faith to carry out the written directions of a decedent as stated in a. will or in a written instrument executed pursuant to this section." N.Y.Pub: Health Law §4201
It is undisputed that Dr. Trbovich executed an appointment of an agent (Kenneth) to control the disposition of his remains. We agree the Brown defendants relied upon the directions of Kenneth in making the arrangements. Therefore, we find that the Public Health Law shields the Brown, defendants for any claims relating to the disposition of Dr. Trbovich's remains. Mack v. Brown, 82 A.D.3d 133, 919N.Y.S.2d 166 (2dDept. 2011). In addition, as noted below, the Brown defendants are entitled to dismissal of plaintiffs' claims for failure to state a cause of action for intentional and negligent infliction of emotional distress and prima facie tort.
II. Intentional Infliction of Emotional Distress.
In order to establish a cause of action for intentional infliction of emotional distress, the plaintiff must allege extreme and, outrageous conduct; an intent, to cause, or disregard of a substantial probability of causing severe emotional distress; a causal connection between the conduct and -'the- injury; and severe emotional distress. Chanko v. American Broadcasting Cos., 27N.Y.3d46 (2016); Howell y New York Post Co. Inc., 81 N.Y.2dll5 (1993); N.Y, PJI3:6 Comment at p. 61, It is well settled .that "liability has been found only where the. conduct has been so outrageaus in character, and so extreme in degree, so as to go beyond all possible bounds of decency to be regarded as atrocious, and Utterly intolerable in acivilized community." Id; Murphy v, American Home Prods. Corp., 58 N.Y.2d 293 (1983); Kondo-Dresssr v, Buffalo Public Schools, 1.7 A.D, 3d 1.114 (4, th Dept 2005). The question of whether the alleged conduct is outrageous is, in die first instance, a matter for the Court to decide. Rocco v. Town of Smithtown, .229 A.D.2d 1034 (4, th Dept. 1996); Boyle v. Caledonia-Muntford CSD, 140 A.D.3d 1619 (4thDept 2016). In Chanko,, the Court of Appeals held that the defendant's action in filming a patient's medical treatment and death in a hospital emergency room without consent and then broadcasting a portion of the footage as part of a documentary series about medical trauma was not so extreme and outrageous, as to support a cause of action by the patient's family members for intentional infliction of emotional distress. The Court noted that despite a pleading, which addressed all of the required elements of the cause 6f action, a motion to dismiss, will be granted where die conduct does not meet the "exceedingly high legal standard" for outrageous conduct. Id., "The element of outrageous conduct has been characterized as vigorous and difficult to satisfy, designed to filter out trivial complaints and assure that the claim of severe emotional distress is genuine." N.Y. PJI 3;6 Comment at p. 63, Chanko, supra. "Even conduct considered to be reprehensible, by mOst people and offensive has been found insufficient as a matter of law.
Here, plaintiffs' allegations of outrageous conduct relate to/the omission of the plaintiff s name from an obituary printed in the Buffalo News on August 10, 2017, Kenneth's alleged conduct in requesting that Nick Jr, execute a waiver of rights to his father's estate, in exchange for his consideration to he permitted to attend the wake, and the refusal to permit Nick Jr, to. attend the wake despite court orders instructing both Kenneth and employees of the defendant RE. Brown to permit Nick Jr.'is entry into, the wake (See complaint atJ54).
We find that plaintiff s complaint fails to state a cause of action for intentional infliction of emotional, distress. None of plaintiffs' allegations rise to the exceedingly high standard necessary to state a claim for intentional infliction of emotional distress. In reaching our determination, we are guided by the First Department's decision m Plaza v.. Estate of Wisser, where the Court considered a claim of intentional Infliction of emotional distress based on the defendant's conduct in preventing the plaintiff from attending the decedent's funeral. The Wisser Court wrote -"while these allegations reflect conduct Which may have caused distress, and anxiety to plaintiff, they can hardly be said to allege conduct which is. so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a-civilized community," Citing, Howell v. New York Post Co., 81 N.Y.2d 115, 122, quoting Murphy v. American Home Prods, Corp., 58 N.Y. 2D 293 (1983).
We further find the Supreme Court, Kings County's reasoning in Scher v.. Sober instructive. There, the Court determined that "defendant's failure to advise plaintiff of decedent's funeral arrangements is not so extreme in degree as to go beyond all possible bounds of decency. Thus, even accepting the truth of plaintiffs allegations regarding what defendants did or failed to do, the underlying conduct was not so shocking and outrageous that it exceeded all reasonable bounds of decency," Scher at 1134. For the foregoing;reasons, the plaintiffs' first cause of action alleging intentional infliction of emotional distress against all of the defendants is dismissed.
III. Negligent Infliction of Emotional Distress.
The Fourth Department requires the same showing of "outrageous conduct" required to establish a claim for intentional infliction, of emotional distress to state a claim for negligent infliction of emotional distress. Deak v. Bach Farms, LLC, 34 A.D.3d 1212 (4*h Dept. 2006). "A cause of action for either intentional or negligent infliction of emotional distress must be supported by proof 'of conduct by a defendant that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious; and utterly intolerable in a civilized community. Deak supra, citing Dillon v. City of New York, 26\ A.D.2d 34, 41 (P1 Dept. 1999); see also, Harville v. Lowville Cent. Seh, DM, 245 A.D.2d 11.06 (4* Dept. 1997); Rocco v. Town of Smithtown, 229 A, D.2d 1034 (4, thDept. 1996); Sclar v Fayetteville-Manlius School Dist., 300. A.D.2d 11IS (4, th Dept. 2002). As noted above, the plaintiffs have failed to allege the type of outrageous conduct that would, support a claim for either intentional or negligent infliction of emotional distress.
To the extent that plaintiff argues that in addition to outrageous conduct, he has alleged a breach of duty to him which unreasonably endangered his physical safety or caused him to fear for his own safety, sufficient to withstand the defendants' motions to dismiss, we disagree. Only upon a showing of sufficiently outrageous conduct will the Court consider the question of a breach of duty and whether the defendants' conduct unreasonably endangered plaintiffs physical safety or cause him to fear for his. physical safety. Harville, supra.
Moreover, while there are exceptions to the rule requiring risk or fear of physical safety (e.g. claims involving the right of sepulcher, the mishandling pf a corpse and autopsy errors), the circumstances under which recovery May be had for a claim of negligent infliction of emotional distress for purely emotional harm are extremely limited. See, e.g. Graber v. Baehman. The common law right of sepulcher gives next of kin the absolute right to immediate possession of decedent's body for preservation and burial, and permits damages against those who unlawfully interfere with the right or improperly deal with decedent's body. No such violation is alleged by the plaintiffs herein, nor does plaintiff allege a special duty owed to him. There is no allegation in the complaint that Kenneth owed Nick Jr. a cognizable duty to allow him to attend a private wake service. As the appointed agent, by his father to control matters associated, with the disposition of his remains, Kenneth's duty was to carry out this appointment consistent with his father's directions.
The Court does not find that either the funeral home nor Kenneth owed Nick. Jr. a duty, and even if they did, there has been no allegation that the defendants' alleged breach of duty endangered die plaintiff s physical safety or caused him to fear for his or her own physical safety. Shepherd v. White Star Development Corp., 113 A.D.3d (4th Dept.2014) (Plaintiff sister of deceased employee, failed to state a claim for negligent infliction of emotional distress independent of emotional distress recoverable under a claim for loss of sepulcher after her brother died after failing into trash compactor with no recoverable body to bury because the defendants did not unreasonably endanger her physical safety or cause her to fear for her physical safety); Stonecfpher v. Bossuot-Lundy Funeral Home, Inc., 238 A.D.2d 946 (4t!l Dept. 2007) (negligent infliction, of emotional distress claim dismissed, funeral home's failure to inform plaintiff where her father was buried was not conduct that unreasonably endangered her physical safety), The Court also notes that despite the plaintiffs reliance on the Court's two Orders which directed that he be permitted to attend the wake, the Court concedes that a court order should not give rise to a duty where none otherwise exists. Defendant Kenneth's duty was to cany out his father's directives. While Kenneth may have owed his brother the moral or familial obligation to permit Nick Jr. to attend his father's wake, Kenneth owed him no legal duty to do so..
III. Prima Facie Tort.
With respect to plaintiffs' third cause of action alleging prima facie tort, we note that "the purpose of prima facie tort is to provide a. remedy for intentional and malicious actions that cause harm and for which no traditional tort provides a remedy; it is not to provide a "catch-all alternative" for every cause of action that is not independently viable. N, Y. PJI 3:7 Comment; Epifanl v. Johnson, 65 A.D.3d 224 (2d Dept. 2009). The elements of a. cause' of action for a prima facie tort: are the intentional infliction of harm; that results in special damages; without any excuse or justification; by an act or series of acts that would otherwise be lawful. Freihofer v. Hearst Corp., 65N.Y, 2d 135 (1985); Feiraro v. Finger Lakes Racing Ass 'n., Inc.-, 182 A, D.2d 1072 (4th Dept. 1992). The intent required is an intention to harm. Curiang v. Snozzi, 63N.Y.2d 113 (1984). "Actual malice, in the sense of malevolence or evil motive, rather than legal motive, is the key." N.Y. PJI 3:7 Comment at 89. "It is clearly the Hew York rule that there is no liability for prima facie tort unless malevolence is defendant's sole motive,, or as it is sometimes put, unless defendant acts from disinterested malevolence." N.Y, PJI 3:7 Comment at 89; Bums, Jackson, Miller. Summit & Spitzer v. Lindner, 59 N.Y.2d 314 (1983). Essential to pleading a cause of action for prima facie tort is pleading of special damages.. Curiano, supra, A general statement of damages is insufficient, Mancuso v. Allergy Assocs, of Rochester, 70 A.D3d 1499, 1501 (4th Dept .2010).
Plaintiffs' prima facie tort claim fails first because the plaintiffs intentional and negligent. infliction of emotional distress claims fail as a matter of law. Second, even if a viable tort claim were alleged, plaintiffs have failed to allege that Kenneth's sole purpose in refusing the plaintiff entry to the wake was to cause him harm or that the funeral home had the same motivation. Finally, the plaintiff has failed to allege special, damages with the required specificity. Mancuso, supra, (where complaint contains only general statement that plaintiff had damages in the. amount of less than $1 million, such round sums without any attempt at itemization must be deemed allegations of general damages). Accordingly plaintiffs' claim for prima facie tort is dismissed.
IV. Derivative Claim.
Given the plaintiff Kenneth Trbovich's inability to establish a cause of action for intentional infliction of emotional distress, negligent Infliction of emotional distress or prima facie tort, the derivative claim asserted on behalf of Pamela Trbovlch in the fourth cause of action is similarly dismissed. Kaismart v, Hernandez, 61 A.D.3d 565 (1st Dept. 2009),
This is the Decision of the Court. Submit Order and Judgment on notice.