Kairis v John
Annotate this CaseDecided on July 17, 2017
Supreme Court, Onondaga County
Paul Kairis, Plaintiff,
against
Patrice Ann John & Butler-Badman Funeral Home, Inc., Defendants.
33-16-3886
For Plaintiff:
Paul Kairis, Plaintiff Pro Se
For Defendant Butler-Badman Funeral Home, Inc.:
Smith, Sovik, Kendrick & Sugnet, P.C.
Daniel R. Ryan, Esq., of Counsel
For Defendant Patrice Ann John:
Taylor & Miller, LLP
Gerald H. Taylor, Esq., of Counsel
Anthony J. Paris, J.
On August 17, 2014, Melissa Jane Cobenais-Pierce (hereinafter "Decedent") passed away. As a result, Defendant Patrice Ann John, Decedent's mother, representing herself as Decedent's next of kin, took charge of Decedent's remains. Defendant John hired Defendant Butler-Badman Funeral Home, Inc. (hereinafter Butler-Badman) to make the necessary funeral and burial arrangements for her daughter.
Thereafter, Plaintiff commenced this action against Defendants by the filing of his [*2]Summons and Complaint in the Supreme Court of Ulster County seeking damages for the violation of his Right of Sepulcher, and intentional infliction of emotional distress on the basis that he was Decedent's surviving spouse and next of kin.
Defendant Butler Badman interposed an Answer, a first Amended Answer, and finally a Second Amended Answer, which alleged additional affirmative defenses. Subsequently, this matter was transferred from Ulster County to Onondaga County. Defendant John also interposed an Answer to Plaintiff's Complaint.
Defendant Butler Badman has now moved to dismiss Plaintiff's Complaint against it pursuant to CPLR 3211(a)(7) for failure to state a cause of action. Plaintiff has opposed this motion and has cross moved to file an Amended Complaint. Defendant Butler-Badman opposes this cross motion.
Defendant John has taken no position on either motion.
In determining whether a Complaint fails to state a cause of action under CPLR 3211(a)(7), the Court is required to accept the facts as alleged in the Complaint as true, and accord the plaintiff the benefit of every possible inference. The Court must liberally construe the allegations and determine if, from the four corners of the pleadings and the submissions in opposition to the dismissal motion, the facts as alleged by plaintiff fit within any cognizable legal theory. 511 West 232nd Owner's Corp. v. Jennifer Realty Company, 98 NY2d 144 (2002); Leon v. Martinez, 84 NY2d 83 (1994); Wells v. The Hurlburt Road Co., LLC., 145 AD3d 1486 (4th Dept. 2016); Carlson v. American International Group, Inc., 130 AD3d 1479 (4th Dept. 2015); Farneti v. AT & T, 72 AD3d 1612 (4th Dept. 2010); Daley v. County of Erie, 59 AD3d 1087 (4th Dept. 2009).
The criteria is whether there is a cause of action, not whether one has been stated. See Leon v. Martinez, supra.
When viewing and construing the Complaint and Plaintiff's submissions in opposition to this motion in the requisite liberal manner, defendant's motion to dismiss must be Granted as Plaintiff has not set forth a cognizable legal theory as to Defendant Butler-Badman.
In order to establish a cause of action for interference with the Right of Sepulcher a Plaintiff must establish that: 1) Plaintiff is the decedent's next of kin; 2) Plaintiff had a right to possession of the remains; 3) Defendant interfered with Plaintiff's right to immediate possession of the remains; 4) the interference was unauthorized; 5) Plaintiff was aware of the interference, and 6) the interference caused Plaintiff mental anguish. Shepherd v. Whitestar Dev. Corp., 113 AD3d 1078 (4th Dept. 2014).
The common law Right of Sepulcher gives a decedent's next of kin an absolute right to immediate possession of a decedent's body for preservation and burial. Damages may be awarded against any party who unlawfully interferes with that right or improperly deals with the decedent's body. Shipley v. City of New York, 25 NY3d 645 (2015).
Public Health Law §4201(7) deals specifically with, among others, a funeral director or funeral firm such as Defendant Butler-Badman. This section provides in pertinent part:
"No ... funeral director ... or funeral firm shall be held liable for actions taken reasonably and in good faith to carry out the written directions of a person who represents that he or she is entitled to control of the disposition of remains, provided that such action is taken only after requesting and receiving written statement that such person: ... (b) ... has no [*3]knowledge that the decedent executed a written instrument pursuant to this section or a will containing directions for the disposition of his or her remains and that such person is the person having priority under subdivision (2) of this section."Subdivision (2)(a) of §4201prioritizes those persons having control of a decedent's remains and includes: "(ii) the decedent's surviving spouse and (iv) either of the decedent's surviving parents."As detailed in the Affidavit of John Badman, the owner of Defendant Butler-Badman, in support of this motion, Defendant Butler-Badman relied on the following documents to verify that Defendant John was the proper and prioritized person to control the disposition of Decedent's remains; to wit: the funeral home release listing Defendant John as mother of Decedent (Ex. J); the funeral home release receipt identifying Defendant John as Decedent's mother, and next of kin (Ex. H); and the Decedent's Death Certificate which indicated that Decedent's marital status was divorced, and that Defendant John was Decedent's surviving parent (Ex. I).In addition, Mr. Badman was informed by Defendant John that Decedent did not have a will at the time of her death.
On the basis of this documentary evidence and the representations made by Defendant John, there is no way that Defendant Butler-Badman could have reasonably ascertained Plaintiff's existence as a surviving spouse or reasonably question Defendant John's representations that she was Decedent's legal next of kin and authorized to control the disposition of Decedent's remains.
Moreover, Plaintiff in his opposition to this motion has admitted that he "does not or has ever made the point that Butler did not act reasonably and in good faith when John illegally and intentionally presented herself as legal next of kin in August of 2014." Additionally, nowhere can there be found in any of Plaintiff's papers an allegation that Defendant Butler Badman improperly dealt with Decedent's body. Any contention by Plaintiff that this Defendant acted as an agent of Defendant John by not replying to his letters seeking information about Decedent is without merit.
Based on the foregoing, it is clearly evident that Butler Badman acted reasonably and in good faith. Mack v. Brown, 82 AD3d 133 (3d Dept. 2011).
As to Plaintiff's cause of action alleging the intentional infliction of emotional distress, the Court of Appeals has enumerated four elements of such a cause of action which must be shown by a Plaintiff: 1) extreme and outrageous conduct; 2) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; 3) a causal connection between the conduct and injury; and 4) severe emotional distress. Chanko v. American Broadcasting Cos. Inc., 27 NY3d 46 (2016).
"Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, so as to go beyond all possible bounds of decency and be regarded as atrocious, and utterly intolerable in a civilized community." Chanko, supra; Murphy v. American Home Prods. Corp., 58 NY2d 293 (1983), quoting Restatement [Second] of Torts §46.
Even accepting the allegations in Plaintiff's Complaint regarding Defendant Badman's conduct as true, and according Plaintiff the benefit of all favorable inferences, as required in a CPLR 3211 motion, this Defendant's conduct was not so extreme or outrageous so as to support [*4]or satisfy a cause of action for the intentional infliction of emotional distress. Brunache v. MV Transportation, Inc., __ AD3d __ (2d Dept. 2017), 2017 NY Slip Op. 05196 (2d Dept. 2017). Interference with the Right of Sepulcher alone is insufficient to establish such a cause of action. Lopez v. Fenn, 90 AD3d 569 (1st Dept. 2011).
Based on the foregoing and on the record before the Court, it cannot be said as a matter of law that Defendant Butler Badman violated or interfered with Plaintiff's Right of Sepulcher or that this Defendant engaged in such conduct so as to intentionally inflict emotional distress upon Plaintiff.
Therefore, by reason of the foregoing, Defendant Butler-Badman's motion to dismiss Plaintiff's Complaint as against it is GRANTED.
In view of the Court's ruling on Defendant Butler Badman's motion to dismiss, the cross motion of Plaintiff to amend his Complaint is MOOT. In any event, a review of the proposed Amended Complaint reveals that none of the amended claims constitute a legally cognizable cause of action against Defendant Butler-Badman.
AND IT IS SO ORDERED.
ANTHONY J. PARIS
JUSTICE OF SUPREME COURT
DATED: July 17, 2017
Syracuse, New York
Filed Papers.:
Notice of Motion on behalf of Defendant Butler Badman for motion to dismiss Complaint dated January 18, 2017
Affirmation of Daniel R. Ryan, Esq., with exhibits, sworn to the 18th day of January, 2017, in support of the motion
Notice of Motion for leave to amend complaint on behalf of the Plaintiff dated March 27, 2017
Affidavit of Paul Kairis, sworn to the 27th day of March, 2017, in support of Plaintiff's motion
Amended Complaint (proposed), with attachments A-E
Affirmation of Daniel R. Ryan, Esq. in Further Support of Butler Badman's motion to dismiss, dated April 19, 2017
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