Shipley v City of New York
Annotate this CaseDecided on March 14, 2012
Supreme Court, Richmond County
Andre Shipley and Korisha Shipley, Plaintiff[s],
against
The City of New York and the Office of The New York City Medical Examiner, Defendant[s].
101114/06
Plaintiff's counsel
Anthony Galante, Esq.
Ameduri, Galante & Friscia
471 Bement Avenue
Staten Island, New York 10310
Defendant's Counsel
Sheila M. Rossi, Esq.
Corporation Counsel for the City of New York
100 Church Street
New York, New York 10007
John A. Fusco, J.
The following papers numbered 1 to 2 were marked fully submitted on the 20th day of January, 2012:
PapersNumbered
Notice of Motion by Defendant[s] with supporting Papers and Exhibits
[dated December 6, 2011]..................................................................... .1
Affirmation In Opposition by Plaintiff[s]
[dated January 19, 2012] . ..2
______________________________________________________________________________
Defendant City of New York (sued as The City of New York and the Office of The New York City Medical Examiner) has moved to set aside the directed verdict on liability and the jury verdict on damages. Defendant requests that the directed verdict be set aside due to plaintiffs' failure to prove a prima facie case, or, in the alternative, setting aside the [*2]jury verdict on damages due to plaintiffs' failure to prove damages attributable to the defendant's failure to provide notification and directing judgment as a matter of law for defendant; or, alternatively, ordering a new trial on liability, as the directed verdict was in error and deprived the defendant of a fair trial and/or a new trial on damages on the ground that the damages awarded exceeded reasonable compensation.
Plaintiffs brought this action to recover for emotional injuries. Plaintiffs' son, Jesse Shipley, died on January 9, 2005 in an automobile accident. An autopsy was performed on January 10, 2005 at the Richmond County Mortuary with the consent of his father. Dr. Stephen de Roux, the Acting Deputy Chief Medical Examiner, determined that the cause of death was multiple blunt impacts to the head. On that day, the body of Jesse Shipley was released to the funeral home. The funeral services were had, and the remains were interred in a Roman Catholic Cemetery on January 13, 2005.
In March 2005, a group of students from Port Richmond High School took a field trip to the Richmond County Mortuary. The students were given a tour and at one point, entered a room with various human tissue specimens in jars. The students noted one jar in particular held a human brain in a solution marked with a label bearing the name of Jesse Shipley. It seems that when that body was released, the brain was (now obviously) not released as well. Dr. de Roux, who completed the autopsy, retained the brain for later examination, without notifying the plaintiffs. Dr. de Roux later explained that he retained brains until he had enough to make the trip to Staten Island worthwhile for Dr. Hernando Mena, who examined that tissue. The plaintiffs' daughter, who had survived the crash which killed her brother, heard of the sad coincidence and told her parents.
On March 9, 2005, Dr. Jennifer Schott and Dr. Mena examined the plaintiffs' child's brain and concurred with the conclusion of Dr. de Roux. On March 17, 2005, plaintiffs obtained a temporary retraining order preventing the City of New York from modifying or altering the brain. The brain was later returned to the plaintiffs and buried with the child's body.
On March 31, 2006, plaintiffs and their daughter instituted the within action seeking to recover for the emotional injuries suffered as a result of the mishandling of the plaintiffs' child's brain. Among other allegations, the plaintiffs alleged that the brain was placed on display without authorization, and that defendants had interfered with their right of sepulcher by interfering by not notifying them of the retention and allowing them to bury their son with all his body parts.
At the close of discovery, defendants moved for summary judgment to dismiss the action on the grounds that Shannon Shipley lacked capacity to bring suit for emotional injuries, the plaintiffs did not state a claim that the brain was on unauthorized display, and that the plaintiffs failed to state a cause of action for the right of sepulcher. The Supreme Court granted the motion as to Shannon Shipley and denied it as to plaintiffs. An appeal ensued, and the Appellate Division, Second Department, granted the motion on the issue of Shannon Shipley's standing, modified the decision by granting that portion of the motion to dismiss the complaint that claimed unauthorized display of the brain and denied the remainder. In the examination of the motion, Justice Mastro, writing for the majority, found that:
"[a] claim based on a violation of the right is designed to compensate the next of kin for the emotional suffering and mental anguish which they experience from the interference with their ability to properly bury their decedent. The likelihood of emotional injury is deemed so inherently genuine in such cases that neither proof of the plaintiffs' accompanying physical harm nor of a specific medical diagnosis and course of treatment is essential to a successful prosecution of the claim.
Accordingly, while the medical examiner has the statutory authority to exercise his or her discretion to perform an autopsy in certain cases, and to remove and retain bodily organs for further examination and testing in connection therewith, he or she also has the mandated obligation, pursuant to Public Health Law § 4215[1]and the next of kin's common-law right of sepulcher, to turn over the decedent's remains to the next of kin for preservation and proper burial once the legitimate purposes for the retention of those remains have been fulfilled. This latter duty is not only ministerial in nature but is clearly for the benefit of, and is owed directly to, the next of kin. Furthermore, it may be satisfied in the present context by the simple act of notifying the next of kin that, while the body is available for burial, one or more [*3]organs have been removed for further examination. In this manner, the next of kin may make an informed decision regarding whether to bury the body promptly without the missing organs and then either accept the organs at a later date or authorize the medical examiner to dispose of them, or alternatively, to wait until such time as the organs and body can be returned to them together, in as complete a condition as is reasonably possible, for burial or other appropriate disposition by the next of kin.
Shipley v. City of New York, 80 A.D. 3 d 171, 176, 908 N.Y.S.2d 425 [2d Dept. 2010]. [citations omitted].
The Second Department concluded that the complaint allegation that the medical examiner returned the child's body to the plaintiffs without notice that he had retained their son's brain, stated a prima facie claim to recover for the right of sepulcher.
The matter was subsequently brought to trial before this Court. Plaintiffs presented proof that no notice was given to plaintiffs at the time of the release of the child's body that the Richmond County Mortuary had retained the brain. Plaintiffs also presented evidence that they were of the Roman Catholic faith and that the child's burial was not complete until he was buried whole. Plaintiffs showed that the Richmond County Mortuary had a special duty to these plaintiffs as the parents of the decedent. At the close of the trial on the issue of liability, plaintiffs moved for a directed verdict. The motion was granted since at trial, the allegations plead by plaintiffs in the complaint regarding the medical examiner's violation of their right to sepulcher as defined by the Appellate Division, Second Department were proven, and uncontradicted by defendant.
The Appellate Division decision was the law of the case at the time of trial before this tribunal. The law of the case doctrine prevents the relitigation of issues that were necessarily determined on the merits at an earlier stage of the matter. (see Brownrigg v. New York City Housing Authority, 29 AD3d 721, 722, 815 N.Y.S.2d 681 [2d dept. 2006]; Bellavia v. Allied Elec. Motor Serv., 46 AD2d 807, 361 N.Y.S.2d 193 [2d Dept. 1974]; Gay v. Farella, 5 AD3d 540, 772 N.Y.S.2d 871 [2d Dept. 2004].) The doctrine may be "ignored" in "extraordinary circumstances" such as a change in the law or a showing of new evidence which would affect the prior determination. (see Foley v. Roche,86 AD2d 887, 447 N.Y.S.2d 528[2d Dept. 1982] [holding that where the basis for a prior order had since been overruled by the Supreme Court of the United States and by the Court of Appeals, the law of the case doctrine can be ignored even though the prior order was from a higher court]; Politi v. Irvmar Realty Corp., 13 AD2d 469, 212 N.Y.S.2d 444 [1st Dept. 1961]; Barrett v. State Mut. Life Assur. Co., 58 AD2d 320, 322, 396 N.Y.S.2d 848, [1st Dept. 1977] affd. 44 NY2d 872, 407 N.Y.S.2d 478, 378 N.E.2d 1047,cert. den. 440 U.S. 912, 99 S. Ct. 1226, 59 L. Ed. 2d 461.)
In Shipley, the Appellate Division necessarily decided the law of the case when it took defendant's motion on appeal. Justice Mastro addressed the issue of plaintiffs' right to sepulcher and what elements would have to be proven. The law has not since changed nor was any new evidence presented which would have changed that decision. The elements were proven at trial, and the question became one of law and not fact. Thus, the directed verdict was appropriate.
Defendant also alleges that the matter was not necessarily decided such that it does not then become the law of the case. As to the former allegation, the motion made by defendant was one for summary judgment and thus once appealed, the merits of the claim were at issue, thus necessitating the examination of the relevant applicable rules. Therefore, this argument does not persuade this Court to set aside the directed verdict.
In the alternative of this Court declining to set aside the directed verdict, defendant requests that this court overturn the jury verdict on the issue of damages. After the directed verdict, the trial on damages began. Plaintiffs and defendants presented their case, and the jury returned a verdict totaling $500,000 for each plaintiff for their past pain and suffering. Defendant claims that the damages awarded exceeded reasonable compensation
The question of damages is squarely within the province of the jury. (see Iovine v. City of New York, 286 AD2d 372, 729 N.Y.S.2d 182 [2d Dept. 2001] [holding that the jury award of $10,000 for future pain and suffering was unreasonable where a formally active 59 year old pedestrian suffered permanent hip injuries as a result of a fall in a hole in defendant's sidewalk]). The amount of the jury award can be set aside only when it deviates materially from what would be reasonable compensation. (Lolik v. Big v. Supermarkets, 86 NY2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 [1995]; Gaetan v. New York City Transit Authority, 624 N.Y.S.2d 48, [2D Dep't 1995]). "The standard for making that determination [is] whether the evidence preponderates so greatly in the movant's favor that the jury could not have reached its conclusion on any fair interpretation of the evidence.'" (Sprung v. O'Brien, 168 AD2d 755, 755, 563 N.Y.S.2d 577 [3d Dep't 1990], quoting Frasier v. McIlduff, 161 AD2d 856, 858, 555 N.Y.S.2d 905 [3d Dept. 1990]; cited by Lolik).
The questions presented for this jury were whether the plaintiffs suffered an exacerbation of their emotional injuries as a result of defendants' actions and if so, what was the value of that injury. How a parent feels after his or her child's death is impossible to imagine, however, how that parent felt after he or she discovered that the child was buried without his body parts is almost incomprehensible. This jury decided this issue of exacerbation and then based on the evidence, decided the amount that their pain was worth. That decision was rational based on the facts at issue, and the amount was reasonable, if not low, and thus, the verdict of this jury will not be disturbed. (c.f. Emeagwali v Brooklyn Hosp. Ctr.60 AD3d 891, 876 N.Y.S.2d 123, 2009 NY Slip Op. 02318 [2d Dept. 2009])
Defendant's remaining contentions do not otherwise persuade this court. Therefore, the motion is denied.
This constitutes the Order of the Court.
Dated:March 14, 2012E N T E R
_______________________________
Hon. John A. Fusco
Justice of the Supreme Court
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