Gutnick v Hebrew Free Burial Socy. for the Poor of the City of Brooklyn

[*1] Gutnick v Hebrew Free Burial Socy. for the Poor of the City of Brooklyn 2019 NY Slip Op 51133(U) Decided on June 28, 2019 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 28, 2019
Supreme Court, Kings County

Jenny Gutnick, Plaintiff,

against

Hebrew Free Burial Society for the Poor of the City of Brooklyn d/b/a TE HEBREW FREE BURIAL ASSOCIATION, RICHMOND HILL CEMETERY, RICHMOND HILL CEMETERY d/b/a MOUNT RICHMOND CEMETERY, SHOMREI HACHMOS LLC, SHOMREI HACHOMOS LLC d/b/a SHOMREI HACHOMOS ORTHODOX CHAPELS, PARKSIDE MEMORIAL CHAPELS, INC., CAPITOL FUNERAL SERVICE OF NEW YORK, DONMAZ LTD, DONMAZ LTD d/b/a BLAIR-MAZZARELLA FUNERAL HOME, DONMAZ LTD, DONMAZ LTD d/b/a BLAIR-MAZZARELLA FUNERAL HOME, DONMAZ LTD d/b/a CAPITOL FUNERAL HOMES OF NEW YORK CITY, PYRAMID FUNERAL SERVICES OF BROOKLYN, INC. and ASSOCIATED LIVERY, Defendants.



CAPITOL FUNERAL SERVICE OF NEW YORK, Third Party Plaintiff, - -

against

PYRAMID FUNERAL SERVICES OF BROOKLYN, INC. and ASSOCIATED LIVERY, Third Party Defendants.



509579/15



Attorney for Plaintiff

Kahn, Gordon, Tinko & Rodriques, P.C.

20 Vesey Street — Ste 300

New York, New York 10007

(212) 233-2040

Attorney for Hebrew Free Burial Association, Inc.

i/s/h/a Hebrew Free Burial Society for the Poor

of the City of Brooklyn d/b/a The Hebrew Free

Burial Association

Lewis, Johs, Avallone, Aviles LLP

One CA Plaza, Ste 225

Islandia, New York 11749

(631) 755-0101

Attorney for Capitol Funeral Service of New York

David Weiser, Esq.

Weiser & McCarthy

17 State Street, 8th Floor

New York, NY 10004

(212) 943-8940

Attorneys for Shomrei Hachomos LLC

Shomrei Hachomos LLC d/b/a

Shomrei Hachomos Orthodox

Cascone & Kluepfel LLP

1399 Franklin Avenue — Ste 302

Garden City, New York 11530

(516) 747-1990

Attorneys for Parkside Memorial Chapels, Inc.

Churbuck, Calabria, Jones & Materazo P.C.

43 A East Barclay Street

Hicksville, New York 11801

(516) 931-2600

Attorneys for Donmaz Ltd. And Donmaz Ltd.

d/b/a Blair- Mazzarella Funeral Home

The Law Office Michael Swimmer

605 3rd Avenue -9th Floor New York, New York 10158

Attorneys for Pyramid Funeral Service of Brooklyn, Inc.

and Associates Funeral Service Corporation s/h/a

Associates Livery

Furey, Furey, Leverage, Manzione, Williams

& Darlington, P.C.

600 Front Street

Hempstead, New York 11550-4494

(516) 538-2500
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of defendant Capitol Funeral Service of New York (hereinafter Capitol) filed on June 22, 2018, under motion sequence four, for an order granting summary judgment in its favor pursuant to CPLR 3212 dismissing plaintiff Jenny Gutnick's (hereinafter plaintiff or Gutnick) complaint and all cross claims asserted against it.

Notice of Motion

Affirmation in Support

Exhibits A to ZZ

Plaintiff Affirmation in Opposition

Reply Affirmation

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of defendant Parkside Memorial Chapels (hereinafter Parkside) filed on June 22, 2018, under motion sequence five, for an order granting summary judgment in its favor pursuant to CPLR 3212 dismissing all plaintiff's causes of action and all cross claims against it.

Notice of Motion

Affirmation in Support for Parkside

Exhibits A to Q

Plaintiff Affirmation in Opposition

Reply Affirmation for Parkside

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of defendant, Chebra Agudas Achim Chesed Shel Emeth Hebrew Free Burial Association, Inc., sued herein as Hebrew Free Burial Society for the Poor of the City of Brooklyn, doing business as, The Hebrew Free Burial Association (hereinafter the HFBA) filed on June 25, 2018, under motion sequence six, for an order granting summary judgment in its favor and dismissing all cross claims asserted against it.

Notice of Motion

Affirmation in Support

Exhibits A to ZZ

Plaintiff Affirmation in Opposition

Reply Affirmation

The aforementioned motions are opposed by plaintiff Gutnick.

BACKGROUND

On August 4, 2015, plaintiff commenced the instant action by electronically filing a summons and verified complaint with the Kings County Clerk's Office (hereinafter KCCO). On September 8, 2015, defendant Shomrei Hachomos LLC d/b/a Shomrei Hachomos Orthodox Chapels (hereinafter Shomrei) joined issue by filing its verified answer with cross claims. On September 9, 2015, defendants Donmaz Ltd. and Blair-Mazzerella Funeral Home [FN1] filed their verified answer with cross claims. On October 1, 2015, defendant Capitol filed its verified answer with cross claims. On November 5, 2015, defendant Parkside served its verified answer with cross claims. On November 30, 2015, defendant HFBA filed its verified answer and later filed an amended verified answer with cross claims on December 3, 2015.

On February 6, 2016, Capitol commenced a third party action by electronically filing a third party summons and complaint with the KCCO. On March 10, 2016, third party defendants Pyramid Funeral Services of Brooklyn, Inc. (hereinafter Pyramid) and Associated Livery filed separate answers. On April 28, 2017, Gutnick's action and the third party action were consolidated by order of this Court.

Gutnick's verified complaint alleges three causes of action: (1) loss of sepulcher in that the defendants unlawfully interfered with the plaintiff's right to immediate possession of the decedent and improperly handled the decedent's body; (2) negligence in the defendants interfered with plaintiff's right to dispose of the body of the decedent and improperly handled the decedent's body; and (3) breach of contract. Plaintiff's verified complaint and bill of particulars alleges the following salient facts. On April 11, 2014, Gregory Gutnikov, plaintiff's father (hereinafter the decedent), passed away in his home in Brooklyn, New York. On the same day, plaintiff contacted defendant Shomrei, a funeral home, for assistance. A Shomrei representative removed the decedent and transported the body to their facility. Shomrei informed Gutnick that they planned to bury the decedent outside of New York. However, plaintiff preferred that the decedent be buried in New York City. Gutnick contacted the HFBA, an organization that provides funeral services for indigent New York residents of the Hebrew faith and was advised that the decedent could be buried in their cemetery on Staten Island, New York. Plaintiff and HFBA had a written agreement referred to as the Burial Authorization Agreement that HFBA would arrange a funeral and burial according to the Jewish Orthodox faith. Plaintiff alleges that either Shomrei, Pyramid (a funeral home) or Associated Livery ( a transporter of human remains) transported the deceased to Parkside, another funeral home, where the body remained until April 13, 2014. Gutnick was advised that HFBA had arranged with Capitol (a funeral home) and Pyramid to undertake the burial of the decedent. Plaintiff signed a document referred to as the Itemization of Funeral Services and Merchandise Selected, which directed that payment [*2]be made to Capitol for the burial of the deceased. The burial was scheduled for April 13, 2014 at Mount Richmond Cemetery.

On April 13, 2014, at an open grave site, plaintiff and other mourners gathered around a coffin believed to be the decedent. During the funeral service, plaintiff noticed a handwritten sticker on the coffin with a name that was not the decedent. Plaintiff alerted the Rabbi performing the ritual and was advised that Orthodox Jewish law forbids the opening of a casket once it has been closed. However, cemetery representatives later opened the casket, in plaintiff's presence and discovered the body of an unknown woman. It is further alleged that the location of the decedent was unknown for several hours. Later, Capitol, HFBA, Mount Richmond Cemetery, and Pyramid representatives informed plaintiff that her father may have been buried in another grave. Upon identifying the grave, the representatives disinterred the coffin and opened it to discover the decedent's body, which plaintiff identified. Plaintiff further alleges that due to the defendants actions either in concert or separately, she sustained emotional and psychological damages.

LAW AND APPLICATION

It is well established that summary judgment may be granted only when it is clear

that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v Citibank, 100 NY2d 72 [2003]).

A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324).

A party opposing a motion for summary judgment is obligated "to lay bare his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v Associated Fur Manufacturers, Inc., 46 NY2d 1065 [1979]). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1991]).

"Pursuant to CPLR 3212 (b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, "that there is no defense to the cause of action or that the cause of action or defense has no merit." Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion (Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990])" (People ex rel. Spitzer v Grasso, 50 AD3d 535, 544 [1st Dept 2008].

In the instant motions, defendants Capitol, Parkside, and HFBA are individually seeking summary judgment pursuant to CPLR 3212 dismissing plaintiff's complaint as asserted against them.

Loss of Sepulcher

The ancient right of sepulcher originated and developed long before the passage of the laws (Melfi v. Mount Sinai Hosp., 64 AD3d 26, 31 [1st Dept 2009]). It is rooted in pre-Christian civilization where reverence for the dead was a common practice among a variety of religious faiths and societies (Id.). Accordingly, the Courts recognize that the common-law right of sepulcher "gives the next of kin the absolute right to the immediate possession of a decedent's [*3]body for preservation and burial, and ... damages will be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent's body" (Zhuangzi Li v New York Hosp. Med. Ctr. of Queens, 147 AD3d 1115, 1116 [2nd Dept 2017] quoting Melfi, 64 AD3d at 31). This right is "less a quasi-property right and more the legal right of the surviving next of kin to find 'solace and comfort' in the ritual of burial" (Shipley v City of New York, 25 NY3d 645, 653 [2015] quoting Melfi, 64 AD3d at 32). Damages are limited to the emotional suffering, mental anguish and psychological injuries and physical consequences thereof experienced by the next of kin as a result of the interference with the right of sepulcher (Id. citing PJI 3:6.1). In order to recover for such emotional injuries, it must be shown that the injuries were "the natural and proximate consequence of some wrongful act or neglect on the part of the one sought to be charged" (Mack v Brown, 82 AD3d 133, 138 [2nd Dept 2011] quoting Stahl v. William Necker, Inc., 184 AD 85, 92, [1st Dept 1913]).

To establish a cause of action for interference with the right of sepulcher, a plaintiff must demonstrate 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 decedent's body; (4) the interference was unauthorized; (5) plaintiff was aware of the interference; and (6) the interference caused plaintiff mental anguish (Shepherd v Whitestar Development Corp., 113 AD3d 1078 [4th Dept 2014]; see also Melfi, 64 AD3d at 26). A cause of action does not accrue until interference with the right directly impacts on the "solace and comfort" of the next of kin, that is, until interference causes mental anguish for the next of kin (Zhuangzi Li, 147 AD3d at 1116 citing Melfi, 64 AD3d at 31).

Wrongful Disinterment

Capitol, Parkside, and HFBA contend that Gutnick is unable to support a claim for common-law loss of sepulcher. They aver that plaintiff is seeking damages for the wrongful disinterment of her father, a cause of action that is not viable in New York. There are a small group of Appellate Division decisions wherein actions predicated on a cause of action for wrongful disinterment have been dismissed (see Schultes v Kane, 50 AD3d 1277 [3rd Dept 2008]; Estate of LaMore v Sumner, 46 AD3d 1262, [3rd Dept 2007]; Unz v Greenfield Cemetery, 234 AD2d 360 [2nd Dept 1996]; Olin v Torf, 126 AD2d 252 [3rd Dept 1987]). The Court finds that the case at bar is distinguishable from the above line cases.

The defendants have cited the most recent Second Department Appellate Division decision in Toppin v Hempstead (121 AD3d 883[2nd Dept 2014]) contending that this decision supports dismissal of Gutnick's complaint. In Toppin, the Appellate Division affirmed the decision of the Supreme Court to grant summary judgment to defendants, which included a funeral home and the Town of Hempstead. The Appellate Division in Toppin found that the sparse allegations of plaintiffs that the defendants buried their decedent in the wrong grave and re-interred him in the correct grave without their notice or consent failed to state a cause of action for a violation of common-law right of sepulcher. In Toppin, the Second Department cites the Third Department Decision of Estate of LaMore v Sumner. In the LaMore fact pattern, the plaintiff's aunt gave the cemetery permission to disinter the decedent, plaintiff's father, from a plot the aunt previously purchased for the decedent under the mistaken impression that the family plot could not accommodate the decedent at the time of the funeral. Upon these facts, the Appellate Division Third Department found that disinterment of father's burial vault and re-interment in the correct family plot did not violate son's common-law right of sepulcher. The Third Department reasoned that although the disinterment and reburial was done without consent [*4]or notice to the plaintiff, he had previously given his aunt permission to oversee the decedent's burial and had not tried to exercise his sepulcher right at that time.

Although the defendants are correct that Gutnick's decedent was removed from the incorrect grave and later with her consent is ultimately placed into the correct grave, it is evident that the fact pattern of the case at bar, that the facts of LaMore and the other decisions are distinguishable. Unlike the LaMore fact pattern, Gutnick's complaint and deposition testimony indicate that alleged injury occurred while attempting to seek the solace and comfort of the religious burial of her father. It is during the funeral service, not months or years later, that Gutnick realizes that the decedent is not in the casket. In previous Appellate Division decisions, disinterment and reburial occur without the consent or notice to the plaintiffs (see e.g. Schultes, 50 AD3d 1277; Estate of LaMore, 46 AD3d 1262; Unz, 234 AD2d 360; Olin, 126 AD2d 252). Here, in the course of the burial Gutnick alleges that her right to sepulcher is violated (see Henderson v Kingsbrook Jewish Med. Ctr., 91 AD3d 720, 721 [2nd Dept 2012]). Therefore, Capitol, Parkside, and HFBA must establish that the nature of plaintiff's alleged emotional injuries are not due to a "wrongful act or neglect" on their part to dismiss plaintiff's common-law loss of sepulcher claim (see Mack, 82 AD3d at 138).

HFBA's Summary Judgment

HFBA, further contends that the claim of loss of sepulcher against it should be dismissed because it did not physically handle the decedent's body to cause mislabeling of the decedent's casket to occur. HFBA, through the deposition testimony of Amy Koplow (hereinafter Koplow), its executive director, establishes that HFBA is an agency that arranges traditional Jewish funeral and burials for indigent Jewish people. HFBA contracts with funeral homes and other trade services to arrange a funeral, this includes contacting the Chevra Kadisha [FN2] and arranging for transport of the body, among other things. HFBA owns the Mount Richmond Cemetery and employs staff at the cemetery, including a rabbi, where plaintiff's decedent was buried.

It is undisputed that HFBA was authorized by plaintiff to arrange a traditional Jewish burial for the decedent. By accepting this responsibility HFBA assumed a duty to plaintiff (see Zhuangzi Li, 147 AD3d at 1116). It is also undisputed that when the casket at the "decedent's funeral service" was opened, the body of a woman and not the decedent was found. Therefore, HFBA submissions do not conclusively establish it did not interfere with plaintiff's right to immediate possession of her father's body (Id.). Inasmuch as the defendants failed to meet their prima facie burden, it is unnecessary to determine whether the papers submitted by Gutnick in opposition were sufficient to raise a triable issue of fact (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Capitol's Motion for Summary Judgment

Capitol avers that it was not involved in the incident that occurred on April 13, 2014 and, therefore, the claims asserted against it should be dismissed. Capitol's papers are supported by the deposition testimony of Mark E. Seitelman (hereinafter Seitelman), its treasurer, and the testimony of Koplow. Capitol acknowledges that it is the funeral home for HFBA. HFBA requires the use of a licensed funeral home and funeral director to conduct and oversee a funeral including collection of a body, completion of the death certificate and obtaining the necessary [*5]burial permits. Seitelman described that Capitol did the paperwork for the decedent's burial but subcontracted the role of funeral director to another funeral home. Capitol contends that plaintiff in her deposition was not familiar with Capitol and, therefore, cannot establish that it interfered with her right of sepulcher. There is ample case law providing that a party cannot succeed on a motion for summary judgment by simply pointing out gaps in the opposing party's case (Citibank, N.A. v Conti-Scheurer, 172 AD3d 17, 24 [2nd Dept 2019]). Therefore, a triable issue of fact exists as to whether Capitol, as an agent of HFBA, who was authorized to arrange the decedent's burial, acted negligently in the course of its conduct that allegedly interfered in plaintiff's right of sepulcher (see Zhuangzi Li, 147 AD3d 1115). This branch of Capitol's motion is denied, regardless of the sufficiency of the opposing papers (see Winegrad, 64 NY2d at 853).

Parkside's Summary Judgment

Parkside also sought to dismiss plaintiff's claim as asserted against it. Parkside contends that it did not act as the funeral home, provide the services of its funeral director or have an agreement with plaintiff for any funeral services. Parkside contends that it owed no duty to plaintiff. It is undisputed that the decedent's body was transferred to Parkside for refrigeration and it is where the ritual of purification took place. In support of its motion, Parkside relies on the deposition testimony of Rabbi Jay Shoulson (hereinafter Shoulson), Parkside, Koplow, James Donofrio (hereinafter Donofrio), a former Parkside employee, and Jaime Cappello (hereinafter Cappello), Pyramid's director.

Shoulson stated that although Parkside is a licensed funeral home, it does not provide funeral home services for HFBA. Shoulson further stated that it only provides a refrigeration room and storage for HFBA's use on its premise. Koplow described that unlike with the other trade servicers, it has no written contract with Parkside. Koplow testified that it has an arrangement for the use of the Parkside's purification room and body refrigeration room. HFBA also purchased supplies from Parkside including burial shrouds, grave markers and other items, when needed. Koplow stated that it contracted with Pyramid, a funeral home, who provided the funeral director for the decedent's funeral. Parkside supports its contentions with the testimony of Donofrio. Donofrio, who was employed at the time of the subject incident, explained that Parkside employees were not involved in identifying or transporting HFBA remains, they were handled by non-Parkside employees like Pyramid.

Cappello stated that Pyramid had independent access to Parkside's storage facility and the room for ritual purification. Furthermore, Pyramid had the access code to enter and leave the premise without the assistance of a Parkside employee. Accordingly, Parkside has established, prima facie, that it did not engage in conduct that interfered with Gutnick's right of sepulcher (see Mack, 82 AD3d 133).

In opposition, Gutnick avers that an issue of fact remains as to whether Parkside played a role in the mishandling or mislabeling of the decedent's casket by placing the wrong grave marker on the casket. Gutnick relies on Parkside's annexed submissions including the deposition of Koplow and the Parkside log of bodies it received at the time of the incident. It is undisputed that the decedent's body was prepared for burial at Parkside's facility. Koplow testified that it obtained grave makers from Parkside for their burials. In addition, the Parkside log, despite Donofrio's testimony regarding a separate record keeping by Pyramid and other funeral homes, contains an entry regarding the decedent's arrival and where the burial was to take place. Gutnick testified that she observed a grave marker in the hearse with the decedent's name, which later was identified as the wrong casket. Therefore, plaintiff has raised a triable issue of fact (see [*6]Mack, 82 AD3d 133).

CONCLUSION

Defendant Capitol Funeral Service of New York's motion for an order granting summary judgment in its favor pursuant to CPLR 3212 dismissing plaintiff Jenny Gutnick's complaint and all cross claims is denied.

Defendant Parkside Memorial Chapel's motion for an order granting summary judgment in its favor pursuant to CPLR 3212 dismissing all of plaintiff Jenny Gutnick's causes of action and all cross claims is denied.

Defendant Hebrew Free Burial Society for the Poor of the City of Brooklyn motion for an order granting summary judgment in dismissing plaintiff Jenny Gutnick's complaint and all cross claims is denied.

The foregoing constitutes the decision and order of this Court.

Enter:

J.S.C. Footnotes

Footnote 1:Donmaz Ltd. Appears in the caption as doing business as Blair-Mazzarella Funeral Home.

Footnote 2:The Cherva Kadisha is described as a religious organization in the Jewish tradition that prepare the body for burial .