Coto v Mary Immaculate Hosp.

[*1] Coto v Mary Immaculate Hosp. 2009 NY Slip Op 52665(U) [26 Misc 3d 1205(A)] Decided on December 11, 2009 Supreme Court, Queens County Flug, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 11, 2009
Supreme Court, Queens County

Sonia Coto, etc.

against

Mary Immaculate Hospital



10515 2006



Defendant Attorney:

Jodi Ritter, Esq.

Wilson, Elser, Moskowitz, Edelman and Decker, LLP

3 Garnet Drive

White Plains, NY 10604-3407

Plaintiff Attorney:

Christopher J. Albee, Esq.

Salzman & Winer, LLP

305 Broadway, Suite 1204

New York, NY 10007

Corporation Counsel

89-17 Sutphin Boulevard

Jamaica, NY 11435

Jeff Casey, Esq.

Phyllis Orlikoff Flug, J.

Upon the foregoing papers it is ordered that the motion is denied.

Plaintiff seeks damages relating to the failure of MIH to promptly notify plaintiff of the death of her brother, Roger Coto (decedent). MIH moves for summary judgment in its favor on the grounds that its efforts to locate the decedent's next of kin were reasonable and sufficient under the circumstances and that plaintiff did not suffer any emotional harm or alternatively, any [*2]emotional harm that plaintiff did suffer was not caused by MIH's actions. Plaintiff opposes the motion.

It is well settled that "the surviving next-of-kin have the right to the immediate possession of the 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, 297 [1962]; see Nesbit v Turner, 15 AD3d 552, 553 [2005]; see Gostkowski v Roman Catholic Church, 262 NY 320 [1933]; Darcy v Presbyterian Hosp. in the City of NY, 202 NY 259 [1911]; Massaro v O'Shea Funeral Home, 292 AD2d 349 [2002]; Klumbach v Silver Mount Cemetery Assn., 242 App Div 843 [1934], affd 268 NY 525 [1935].) 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," the next-of-kin may also recover where "one improperly deals with the decedent's body." (Massaro v Charles J. O'Shea Funeral Home, Inc., supra at 351.)

In decisions affecting this type of action, the courts are not primarily concerned with the extent of the physical mishandling or injury to the body per se, but rather how such improper handling or injury affects the feelings and emotions of the surviving kin. The rule was succinctly stated by the court in Sworski v Simons (208 Minn 201, 205 [1940]): "The cause of action is primarily for mental suffering caused by improper dealing with and not the injury to the dead body."

A hospital's efforts to notify a decedent's next-of-kin must be "reasonable and sufficient under the circumstances." (Torres v State, 34 Misc 2d 488 [NY Ct Cl 1962]). A hospital's rules and regulations will be taken into account to determine whether it breached its standard of care (see generally Estate of Finn v City of New York, 76 Misc 2d 388 [Sup Ct App Term, 1973]). Here, MIH submits that its efforts were reasonable and sufficient under the circumstances.

On January 1, 2004, the decedent was found by the New York City Fire Department EMS officials on 178th Street and Jamaica Avenue in Queens County. He was admitted to MIH and died the next day. Per procedure, MIH hospital staff looked through decedent's clothing to make an inventory of items in his possession; other than his clothing, only a silver watch was found. The decedent was unresponsive and thus unable to provide the name or phone number of his next-of-kin to hospital personnel. Since MIH staff were not provided with a telephone number to contact decedent's family, per MIH policy, the nurse notified the police department. MIH relied on the police to contact the decedent's family.

On January 3, 2004, according to MIH procedure, MIH contacted the Medical Examiner's Office. MIH hospital procedure requires a call to the Medical Examiner's Office if a patient dies within 24 hours of being admitted to the hospital. A medical investigator accepted decedent's case. The Medical Examiner's Office was notified that MIH had not be able to contact the decedent's next-of-kin. This is confirmed by notations on all Medical Examiner's forms submitted in support of the motion. The forms, which were completed per MIH procedure and [*3]included with the body when it was handed over to the Medical Examiner (ME) in the area, indicated that the decedent's family had not been notified of his death. MIH submits that, having accepted the decedent's case with this knowledge, the ME's office was thereafter responsible for contacting his family as the decedent was no longer in the hands of MIH, which allegedly only had the body for one day after the decedent's death and was not responsible for burying the body. MIH further submits that the ME's office was responsible for "identifying" the body, via family member or friend, before burying it yet took no efforts to try to contact the decedent's next-of-kin during the two (2) months it had possession of the body, or to contract the police department to see if it had contact with the family, knowing they would be the last entity to attempt to reach the family and to have possession of the body before it would be buried. MIH submits, therefore, that it did all it was required to do during the short period of time it had possession of the decedent's body and that it's efforts were reasonable under the circumstances.

In opposition, however, plaintiff submits that the MIH face sheet shows that decedent was admitted on January 1, 2004 at 9:30 A.M. and that it reflects that MIH knew decedent's full name, his address, his date of birth and his social security number. The face sheet reveals that decedent was not transferred to the ME's office until January 4, 2004. The address shown on the face sheet was the same as decedent's sister, the plaintiff, yet no one at MIH took the time to call information to ascertain a telephone number. Plaintiff further argues that an internet computer search would have revealed information about decedent based on his date of birth and social security number. Furthermore, plaintiff argues, no one from MIH even bothered to mail a letter to the known address during the three-day time during which decedent was at MIH or during the months following their release of his body to the ME. Nor did MIH attempt to visit the nearby residence to obtain information. As per MIH records, all that was done was that on January 2, 2004, a medical resident wrote at 2:56 P.M., "Nursing supervisor ... to contact family." The next day, on January 3, 2004 at 2:30 P.M., another resident writes that the ME has accepted the case. No attempts at obtaining a telephone number were made; no telegrams to the address on file were sent.

Viewing the evidence in the light most favorable to the plaintiff (Branham v Loews Orpheum Cinemas, Inc., 8 NY3d 931 [2007]), the court finds that MIH made no attempt to notify the next-of-kin and thus their actions were not reasonable under the circumstances. Accordingly, the motion for summary judgment is denied.

Dated: December 11, 2009

J.S.C.