Lewis v New York & Presbyt. Hosp.

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Lewis v New York & Presbyt. Hosp. 2017 NY Slip Op 30588(U) March 23, 2017 Supreme Court, New York County Docket Number: 151707/2015 Judge: Lucy Billings Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 03/29/2017 10:57 AM 1] NYSCEF DOC. NO. 72 INDEX NO. 151707/2015 RECEIVED NYSCEF: 03/29/2017 ' -.n ...... SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46 --------------------------------------x Index No. r51707/20i5 ANDREA LEWIS, Plaintiff .. DECISION AND ORDER - against NEW YORK AND PRESBYTERIAN HOSPITAL also known as NEW YORK PRESBYTERIAN WEILL CORNELL and/or NEW YORK PRESBYTERIAN - UNIVERSITY HOSPITAL OF COLUMBIA AND CORNELL, Defendant ---------------------~~-~~------------x LUCY BILLINGS, J.S.C.: Plaintiff moves to compel defendant's answers to plaintiff's interrogatories, which defendant has refused to. answer ·in reliance on C.P.L.R. § 3130(1) 's provision that, in an action, to recover damages for personal injury based solely on claims of negligence, plaintiff may not both serve interrogatories on and 1. conduct a deposition of defendant. . Defendant insists that . plaint.iffis action to recover damages for personal injury is based solely on claims of negligence. I. THE BASIS FOR PLAINTIFF'S ACTION The basis for plaintiffis action is defendant's alleged deprivation of her right to control and dispose of her child's body a_fter her child died at defendant hospital, refen:;ed ·to as the right of sepulcher. Shipley v. City of New York, 25 N.Y.3d 645,. 653 (2015); Rugova v. City of New York, 132 A.D.3d 220, 229 (1st Dep't 2015); Melfi v. Mount Sinai Hosp., 64 A.D.3d 26, 31. lewis.180 1 2 of 6 0 [*FILED: NEW YORK COUNTY CLERK 03/29/2017 10:57 AM 2] INDEX NO. 151707/2015 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 03/29/2017 (1st Dep't 2009); Estate of Scheuer, 10 A.D.3d 272, 274-75 (1st Dep't 2004). As defendant concedes, the complaint claims defendant not only was negligent, but also was "reckless'' and· engaged in "unlawful actions" in losing or wrongfully disposing of the child's remains. Aff. in Opp'n of Ryan T. Cox Ex. A ~,77. Such unlawful actions may include a violation of New York Public Health Law (PHL) § 4201, which as defendant further concedes imposes requirements for the disposition of a deceased's remains and recognizes plaintiff's right to the immediate possession of her deceased child's remains and to control over their disposition. PHL § 4201(2) (a) (iv). See Rugova v. City of New York,, 132 A.D.3d at 229; Melfi v. Mount sl.nai Hosp., 64 A.D.3d at 31; Estate of Scheuer, 10 A.D.3d at 274-75. such unlawful actions also may include a violation of 10 N.Y.C.R.R. ~ 405 (f) (9), which requires .that a dead body be delivereq to only a licensed funeral director or unde.rtaker or that person':s agent. While a violation of a statute establishes rieglig~nce, violation of.a regulation constitutes evidence of negl~gence, defendant's culpability may be more than negligence. Defendant may have recklessly, as plaintiff specifically alleges': or. intentionally violated the law. a:r:id a ev~n As defendant concedes even further, to recover based on the deprivation of her right of sepulcher, plaintiff may show that defendant "unlawfully" interfered with that right through defendant's neglect ,or its other "wrongful act." Mack v. Brown, 82 A.D.3d 133, 137-38 (2d Dep't 2011) .. See Tinney v. City of New York, 94 A.D.3d 417, 417lewis.180 2 3 of 6 [*FILED: NEW YORK COUNTY CLERK 03/29/2017 10:57 AM 3] NYSCEF DOC. NO. 72 INDEX NO. 151707/2015 RECEIVED NYSCEF: 03/29/2017 18 (1st Dep't 2012). Interference with the right of sepulcher is thus not dependent on:any showing of negligence. kin are . entitled to The decedent's next of immediate possession of the decedent's remains regardless of the reasonableness of defendant'i coridu6t. Plaintiff need only show that she was a next of kin entitled to the remains and that defendant interfered with he~ the remains contrary to any authorization by her. possession of Tinney v. City of New York, 94 A.D.3d at 417-18; Melfi v. Mount Sinai Hosp., 64 A.D.3d at 31; Estate of Scheuer, 10 A.D.3d at 274-75. II. C; P. L. R .. § 313 0 ( 1) DOES NOT GOVERN PLAINTIFF'S ACTION. Plaintiff's claims.that defendant violated her statutory right and acted recklessly place this action outside 3130(l)'s scope. Kimball v. Normandeau, 83 A.D.3d 152~, (4th Dep't 2011); Samide v. Roman Catholic Diocese of 16 A.D.3d 48?, 483 (2d Dep't 2005). solely on negligence. C.~.L.R. § 1522.,-23 ~rooklyn, Her action is not :predicated LaJoy v. State of New York, 48 A.D.3d 1022,, 1023 (3d Dep't 2008); Friedler v. Palyompis, 24 A.D.3d 501, 502 (2d Dep't 2005). Moreover-, even if the complaint were predicated solely on negligence, ~efendant has not shown how or why plaintiff's interrogatories seeking what happened to her child's remains, according to whose decisions, under what authority; and the timing of those occurrences are unduly burdensome in cqnjunction with a deposition. Kimball v. Normandeau, 83 A.D.3d at 1523;. LaJoy v. State of New York, 48 A.D.3d at 1023; Samide v. Roman lewis.180 3 4 of 6 [*FILED: NEW YORK COUNTY CLERK 03/29/2017 10:57 AM 4] INDEX NO. 151707/2015 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 03/29/2017 ·"' Catholic Diocese of Brooklyn, 16 A.D.3d at 483. In fact, many of plaintiff's interrogatories need not have been posed in that form, but might have been propounded in a form unimpede;d by C.P.L.R. § 3130(1). Her requests for the bases or fact'ual elements of defendant's affirmative defenses and for the laws: defendant relies on for legal authority to dispose of her child's reµiains, for example, well might have been propounded in a· demand for a bill of particulars. to defendant, Her requests for (1) authorizations (2) policies, procedures, manuals, and instructional materials for defendant's staff, pla~ntiff, (3) notices to and (4)_ communications with governmental agencies regarding the disposition of the child's remains, for example~ well might have been propounded in a request for produstion of documents. III. CONCLUSION Consequently, within 20 days after entry of this 9rder, defendant shall respond to plaintiff's First Set of Interrogatories dated July 24, 2015. C.P.L.R. §§ 3124, 3133. 1 Upon service 1 of a notice of defendant's deposition, defendant. also shall appear for a deposition. C.P.L.R. §§ 3107, 3124. If defendant fails to respond timely to any interrogatory, the issue about which the interrogatory inquires shall ,be resolved in plaintiff's favor. C.P.L.R. § 3126(1); Baldwin v. ' Gerard Ave., LLC, 58 A.D.3d 484, 485 (1st Dep't 2009); ,Weissman v. 20 E. 9th St. Corp., 48 A.D.3d 242, 243 (1st Dep't 2008); I Spector v. Spector, 18 A.D.3d 380, 381 (1st Dep't 2005); lewis.180 4 5 of 6 ~ongo v. [*FILED: NEW YORK COUNTY CLERK 03/29/2017 10:57 AM 5] NYSCEF DOC. NO. 72 INDEX NO. 151707/2015 RECEIVED NYSCEF: 03/29/2017 Armor El. Co, 307.A.D.2d- 848, 849 (1st Dep't 2003). For example, if the unanswered interrogatory asks what happened to the child's remains, the issue will be determined that defendant unlawfully interfered with plaintiff'i right to the remains. If the unanswered interrogatory asks who decided what happened .to the child's remains, th~ issue will be determined that defendant decided how the remains would be controlled and disposed of. If the unanswered interrogatory asks under what authority defendant interfered with plaintiff's possession of the child's remains or decided what happened to.them, the issue will be determined that defendant acted without authority. If defendant fails to appear \ for its depo~ition, the issue of defendant's liability ,shall be determined in plaintiff's favor. C.P.L.R. § 3126(1) and {3); i Loeb v. Assara N.Y. I L.P., 118 A.D.3d 457, 457 (1st D~p't.2oi4); Youni Gems Corp. v. Bassco Creations Inc., 70 A.D.3d 454, 455 (1st Dep't 2010); AWL Indus., Inc. v. QBE Ins. Corp., 65 A.D.3d \ 904, 905 (1st Dep't 2009). DATED: March 23, 2017 LUCY BILLINGS, J.S.C. lewis.180 5 6 of 6

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