Lewis v Lloyd

[*1] Lewis v Lloyd 2013 NY Slip Op 51286(U) Decided on August 7, 2013 Supreme Court, Kings County Battaglia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 7, 2013
Supreme Court, Kings County

Eileen Lewis by her Attorney-in-Fact, SHIRLEY CLEARDAWN-FORD, Plaintiff,

against

Janet Lloyd, Defendant.



5419/13



Plaintiff was represented by Stacy Jacob, Esq. Defendant was represented by Autumn Shoemaker, Esq.

Jack M. Battaglia, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on Plaintiff's motion for a preliminary injunction:

-Emergency Order to Show Cause

Emergency Affidavit in Support Summons and Verified Complaint

-Affirmation in Opposition to Emergency Order to Show Cause

Exhibits A-G

-Affirmation in Reply

Emergency Affidavit in Reply

Exhibits A-B

-Memorandum of Law in Support of Plaintiff's Emergency Order to Show Cause

Plaintiff was represented by Stacy Jacob, Esq. Defendant was represented by Autumn Shoemaker, Esq.

Plaintiff Eileen Lewis was the mother of Garth C. Lewis, who died on February 26, 2013 at the age of 67 years; defendant Janet Lloyd was the wife of Mr. Lewis at the time of his death. The Verified Complaint of Plaintiff by her attorney-in-fact Shirley Cleardawn-Ford alleges three "counts," designated "Wrongful Death," Spoliation of Evidence," and "Declaring the Fraudulent Marriage Illegal." The Summons and Verified Complaint were served with an Emergency Order to [*2]Show Cause dated March 25, 2013 of Hon. Kathy J. King. To date, the Verified Complaint has not been answered.

Plaintiff's motion seeks preliminary injunctive relief, among other things, enjoining Ms. Lloyd from cremating the body of Mr. Lewis or from removing his body from the funeral home where it was then held, and enjoining Ms. Lloyd "from preventing Plaintiff . . . from the right to approve the autopsy of the deceased by the State of New York to determine if Decedent Garth C. Lewis died of natural causes or whether his death was premature and brought on by other unnatural forces." Pending hearing of the motion, Ms. Lloyd is "restricted and enjoined from cremating the body of Decedent Garth C. Lewis."

In short, Plaintiff seeks to prevent the cremation of her late son because cremation would be against his wishes, and because it might destroy evidence as to the cause(s) of Mr. Lewis's death, which Plaintiff suspects include the intentional or negligent conduct of Ms. Lloyd; and Plaintiff seeks the autopsy to obtain evidence of the cause(s) of Mr. Lewis's death. Subsequent to the first return date, the parties advised the Court that, at Plaintiff's request, the medical examiner had taken possession of Mr. Lewis's body, and that an autopsy has been performed. To date, however, a report of the medical examiner has not been provided to the Court.

The Court determined that an evidentiary hearing was required, addressed to the question of whether the disposition of Mr. Lewis's remains should be directed by his mother or his wife. The Court is advised by Plaintiff's counsel that the medical examiner is holding Mr. Lewis's body pending the Court's determination and order.

Over two days the Court heard testimony from eight witnesses and received other evidence - - most importantly, video recordings of Mr. Lewis approximately a month before his death, made with his consent. Testifying for Plaintiff were her niece and attorney-in-fact Shirley Cleardawn-Ford; Rhonda Lewis, also a niece; Michelle Grotjahn, a friend of Mr. Lewis and cousin of defendant Janet Lloyd; Leah Cuevas, a tenant in a building owned by Mr. Lewis, and the person who made the video recordings with her cell phone; and Sterling Serrant, who assisted Ms. Cuevas in transferring the recordings from the phone to computer-readable discs. Testifying in addition to Defendant were two friends, Luther Roofe and Carmen Quamina. Plaintiff resides in a nursing home, and did not testify.

Certain facts are not disputed. Mr. Lewis and Ms. Lloyd were introduced in February 2011 by Michelle Grotjahn, who testified that she thought Ms. Lloyd could assist Mr. Lewis and Plaintiff, both of whom had health issues. In May 2011, Ms. Lloyd's husband was killed in Jamaica, and she returned there, and remained until September 2011. Mr. Lewis and Ms. Lloyd were married on January 30, 2012; he was 66, she was 46. They had known each other less than a year when they married, and they were married for little more than a year when Mr. Lewis died on February 26, 2013.

Plaintiff's witnesses testified consistently and credibly to a pattern of behavior on Ms. Lloyd's [*3]part characterized by isolation of Mr. Lewis from his family and friends, and control over his personal and financial affairs. Nonetheless, as noted above, there is no dispute that Mr. Lewis suffered with health problems, including hypertension, diabetes, incontinance, limited mobility, and a heart condition. Although Mr. Lewis may very well have been intimidated by Ms. Lloyd - - understandably in light of Ms. Lloyd's behavior as observed from the video recordings, there is no evidence that he was ever physically restrained, or was ever physically prevented from using his phone.

The most compelling evidence is the video recordings made by Leah Cuevas, supported by her testimony. The recordings are divided into 14 segments, 13 of which were made on January 25, 2013, and one on January 19, 2013. The segments are labeled by Ms. Cuevas as follows: Abuse; Nervous Fake Tears; Did Not Feed Him; Divorce Wanted; Forced Power of Attorney; Keep Lease and Pay Him; Marriage for Green Card; Unaware of Policy; Need Help; No Receipts/Con-Woman; Pressure; Rent Payment; Unaware of What He Signed; and Insurance. Subjective and rhetorical flourishes aside, these characterizations are fairly descriptive of what the recordings show. Although it is clear to the Court that Ms. Cuevas does not like Ms. Lloyd, and now as her tenant, in fact at least, has some interest in the matter, it is just as clear to the Court that Ms. Cuevas liked Mr. Lewis and was genuinely concerned about, what she perceived to be, his treatment by Ms. Lloyd. With a proper foundation, as was provided, Ms. Cuevas's video recordings are admissible as evidence. (See Zegarelli v Hughes, 3 NY3d 64, 69 [2004].)

Ms. Lloyd and her witnesses testified essentially in contradiction to Plaintiff's witnesses as to the allegations of abuse, neglect, isolation, and control. In addition, whereas Plaintiff's witnesses testified that Mr. Lewis wished to be buried at a cemetery where his late sister is interred, Ms. Lloyd testified that he wished to be cremated. A further discussion of the evidence appears below, after a review of the applicable law.

Public Health Law § 4201 "identifies, in descending priority, those persons who shall have the right to dispose of a decedent's remains." (See Mack v Brown, 82 AD3d 133, 138 [2d Dept 2011] [citing Public Health Law § 4201(2)(a)].) "Highest priority is given to the person designated in a written instrument . . . executed by the decedent . . . , duly witnessed, and accepted by the designee in a form substantially similar to the template" set forth in the statute. (See id. [citingPublic Health Law § 4201(2)(a)(i) and § 4201(3)].) In the absence of a written instrument of designation, the surviving spouse or domestic partner is at the top of the list of persons who have the right to dispose of the remains. (See Public Health Law § 4201[2][a][ii].) Subject to a documentary requirement, the statute provides protection to cemetery organizations, crematories, and funeral firms that act "reasonably and in good faith to carry out the directions of a person who represents that he or she is entitled to control of the disposition of remains." (See Public Health Law § 4201[7].)

Prior to the passage of Public Health Law §4201, which was prompted by the events of September 11, 2001 and its aftermath (see Mack v Brown, 83 AD3d at 138), the right to dispose of deceased persons' remains was established and governed - - and to a great extent still is - - by a complex of common law, statutes, and regulations, including the common-law right of sepulcher. [*4](See id; Melfi v Mount Sinai Hosp., 64 AD3d 26, 31-39 [1st Dept 2009]; see also, for example, Public Health Law §§ 4200, 4210; 24 RCNY Public Health Code Reg. §§ 205.01, 205.19, 205.37.) "New York jurisprudence has long recognized the interest of a decedent's next of kin in the remains of their decedent, and infringement of that interest repeatedly has been acknowledged to be actionable." (Henderson v Kingsbrook Med. Ctr., 91 AD3d 720, 720 [2d Dept 2012] [quoting Shipley v City of New York, 80 AD3d 171, 177 [2d Dept 2010].)

Prior to passage of Public Health Law § 4201, "a decedent's wishes [would] be taken into account when a dispute erupt[ed] over the ultimate disposition of remains and, in some cases, given effect over the objections of family members." (See Booth v Huff, 273 AD2d 576, 577 [3d Dept 2000].) Thus, it has been said that "the wishes of the decedent as they have been expressed either in language or action must be given great weight and prevail over those of a spouse and children, even if there were no estrangement." (See Matter of Solomon, 196 Misc 2d 599, 600 [Sup Ct, Nassau County 2003]; see also Feller v Universal Funeral Chaper, 124 NYS2d 546, 550 [Sup Ct, NY County 1953].)

"[I]f a husband and wife [were] living together at the time of death of the former, the widow's right to possession of the dead body for the purposes of preservation and burial [was] a right in the widow paramount to that of the next of kin." (See Foley v Phelps, 1 AD 551, 554 [1st Dept 1896]; see also Gostkowski v Roman Catholic Church, 237 AD 910 [2d Dept], aff'd 262 NY 320 [1933]; but see Butler v Butler, 91 AD 327, 329-30 [1st Dept 1904].) But, "[i]n so far as the widow is concerned, the law is clear that a wife from whom the decedent was separated [did] not have the right of a widow concerning his remains." (See Matter of Solomon, 196 Misc 2d at 600 [quoting Feller v Universal Funeral Chaper, 124 NYS2d at 550]; but see Matter of Estate of Barner, 50 Misc 2d 517, 520-23 [Surr Ct, Broome County 1966].)

Since passage of Public Health Law § 4201, at least one court has held that, "[a]lthough the statute does not define surviving spouse,' there is no indication that the Legislature intended to change the meaning of that term as established by prior case law, which held that it does not encompass those who were separated or estranged from their partners at the time of death." (See Maurer v Thibeault, 20 Misc 3d 631, 634 [Sup Ct, Cortland County 2008]; see also Cohen v Marcus L. Bianconi Funeral Home, Ltd., 2012 NY Slip Op 52491 [U] [Sup Ct, Nassau County 2012].)

It is arguable that, to the extent that one of the purposes of Public Health Law § 4201 is to provide bright-line rules to be followed by those responsible for the disposition of human remains, it would be undermined by recognizing any exception to the right of the surviving spouse that would require an examination of the spouse's relationship with the decedent. In enacting Public Health Law § 4201, "[t]he Legislature could not have intended for cemeteries, crematories, and funeral homes possessed of duly-authorized authorizations, death certificates, and related documentation, . . . to cross-examine grieving widows or widowers, children, parents, siblings or others to confirm the validity of the familial or personal status claimed under the Public Health Law, or to conduct independent investigations of such persons to protect themselves from potential liability." (See Mack v Brown, 82 AD3d at 141.) And so, the Second Department has broadly interpreted the statutory [*5]immunity for persons acting "reasonably" and in "good faith" in handling remains (see Public Health Law § 4201 [1]) so as to place the burden of proof on those who would dispute immunity. (See Mack v Brown, 82 AD3d at 139-42.)

Particularly in light of such immunity, there is nothing in the statute that would preclude a judicial determination, before a decedent's remains have been interred or cremated, of the appropriate person(s) to control disposition. Indeed, where a marriage is void ab initio, the survivor would not be "a surviving spouse authorized to control the disposition of the decedent's remains." (See Mack v Brown, 82 AD3d at 140-41.) This Court, therefore, agrees that, at least where, as here, a judicial determination is sought before disposition of the remains, the statute does not preclude a determination that an "estranged" spouse is not a "surviving spouse" for purposes of the statute (see Public Health Law § 4201[2][a][ii].)

Here, as stated above, there is conflicting evidence as to Mr. Lewis's wishes as to disposition of his remains, although the Court is more inclined to credit the testimony of those family members who had a close relationship with him for decades. Even Ms. Lloyd testified that Mr. Lewis would have wanted to be laid to rest next to his mother, although she maintained that he wanted to be cremated first.

The video recordings allowed this Court to hear directly from Mr. Lewis. In response to questions posed to him by Ms. Cuevas, which were, for the most part, leading questions answered with only a "yes" or "no," Mr. Lewis clearly indicated that he married Ms. Lloyd so that she could obtain a green card, and did not want to continue to be married to her; that he was not comfortable in the relationship, did not love Ms. Lloyd, and did not trust her; that he was forced by Ms. Lloyd to sign a will, and signed papers for her without knowing the contents; and that he did not want Ms. Lloyd to have a power of attorney for his business affairs. Although the probative value of the recordings is somewhat weakened by the absence of narrative by Mr. Lewis, there was no evidence that Mr. Lewis was not fully competent or otherwise impaired when the recordings were made, or that Ms. Cuevas, a tenant whom he had known only a few months, exercised some power or authority over him.

The Court notes in the first instance that, even if it is true that the marriage between Mr. Lewis and Ms. Lloyd had been entered into to improve Ms. Lloyd's immigration status, the marriage would not be void so as to deprive her for that reason alone of "surviving spouse" status for purposes of Public Health Law §4201. (See Matter of Hama, 39 Misc 3d 429, 431 n2 [Surr Ct, NY County 2012]; Estate of Julia Dominguez, 2002 NY Slip Op 50481 [U] [Surr Ct, Bronx County 2002]; United States v Diogo, 320 F2d 898, 907-08 [2d Cir 1963] ["the New York courts have repeatedly held allegedly sham' or limited purpose' marriages are neither void nor voidable"].) Nonetheless, the motivation for a marriage, particularly one of relatively short duration, is a factor that is highly relevant to an assessment as to whether the decedent would have wanted the spouse to control the disposition of his or her remains.

Whatever the motivation for Mr. Lewis's marriage to Ms. Lloyd (and there is evidence that [*6]it may have included care for Mr. Lewis), it cannot be said that they were "estranged," as that term is understood when applied to married couples. There is no evidence that Mr. Lewis and Ms. Lloyd did not live together as a married couple in all respects. But isolation, intimidation, and control are not consistent with a loving and trusting marital relationship, and Mr. Lewis stated a month before his death that he neither loved nor trusted Ms. Lloyd, knowing that his statements were being recorded. More significantly for present purposes, Mr. Lewis also stated that he did not want Ms. Lloyd to have power of attorney over his affairs.

Where, as here, there is no compelling evidence of the decedent's wishes as to disposition of his or her remains, the question is not what the disposition should be, but who should make the decision. Specifically, had the decedent clearly designated a person to determine disposition, who would have been that person? At least where the question is asked in a judicial proceeding before disposition, the Court has been given no reason to apply any standard of proof other than preponderance of the evidence.

Considering all of the evidence, including the credibility of the witnesses at the hearing, the Court concludes that Mr. Lewis would have wanted his mother, plaintiff Eileen Lewis, rather than his wife, defendant Janet Lloyd, to determine the disposition of his remains.

The Court should note that Plaintiff's motion, as articulated in the Emergency Order to Show Cause, is framed in terms of injunctive relief, i.e., primarily enjoining Defendant from cremating the body of decedent Garth C. Lewis and preventing an autopsy. It has been clear throughout these proceedings, however, that the Court would be required to determine whether Eileen Lewis or Janet Lloyd has the authority to direct disposition of Mr. Lewis's remains. Indeed, the medical examiner has advised that Mr. Lewis's body will not be released to either Ms. Lewis or Ms. Lloyd without this Court's determination.

Plaintiff's motion also seeks an order enjoining Defendant "from negotiating, entering into, or consummating any transaction involving the assets of Decedent Garth C. Lewis, or any other conduct in furtherance of any such transaction" (see Emergency Order to Show Cause dated March 25, 2013.) This request apparently corresponds to the relief requested in the Verified Complaint, which includes "enjoining Defendant from moving against any of decedent's assets" and "[a]ppointing the Plaintiff the [sic] letters of administration over Decedent's . . . estate" (see Verified Complaint dated March 25, 2013.) Plaintiff cites in support provisions of the Surrogate's Court Procedure Act and the Estates, Powers and Trusts Law.

As the Court advised the parties during the proceedings, although the Court may have subject matter jurisdiction to grant the additional relief requested, particularly on a preliminary basis in aid of the jurisdiction of the Surrogate's Court, the appropriate forum for the resolution of a dispute over Mr. Lewis's estate is that Court. (See Gordon v Gordon, 110 AD2d 623, 625 [2d Dept 1985].) Moreover, to the extent that Plaintiff contends that the marriage between Mr. Lewis and Ms. Lloyd was void, Plaintiff fails to "demonstrate a probability of success on the merits," nor does she make any showing as to the "danger of irreparable injury" (see Nobu Next Door, LLC v Fine Arts Hous., [*7]Inc., 4 NY3d 839, 840 [2005].)

The law clearly requires that "every body of a deceased person, within this state, shall be decently buried or incinerated within a reasonable time after death" (see Public Health Law §4200 [1].) Although the interests of the parties here in ensuring appropriate disposition of Mr. Lewis's remains consistent with his wishes necessarily required some delay through these proceedings, further delay is not warranted.

Plaintiff's motion is granted to the extent that plaintiff Eileen Lewis is determined to be entitled to possession of the remains of decedent Garth C. Lewis and to direct the disposition of the remains; defendant Janet Lloyd is enjoined from interfering with Eileen Lewis's possession or disposition of the remains of decedent Garth C. Lewis; and, without further order, the medical examiner in possession of the remains of Garth C. Lewis may deliver possession of the remains to, or at the direction of, Eileen Lewis.

Upon entry of this order, the clerk of the court shall transfer this action to Surrogate's Court, Kings County, for all purposes, except that this Court shall retain jurisdiction, concurrent with Surrogate's Court, to the extent necessary to enforce this order.

August 7, 2013___________________

Jack M. Battaglia

Justice, Supreme Court