The following electronically filed documents read on this motion by plaintiffs for an Order pursuant to CPLR 3212, granting summary judgment in plaintiffs’ favor as to liability against defendant and setting this matter for depositions and trial on damages only: Papers Numbered Notice of Motion-Affirmation-Exhibits EF 24 – 32 Affirmation in Opposition-Exhibits EF 34 – 40 Reply Affirmation EF 41 Plaintiffs commenced this negligence action by filing a summons and complaint on September 13, 2019. Defendant Pinelawn joined issue by service of an answer on November 18, 2019. Plaintiffs now move for summary judgment on the grounds that defendant Pinelawn admitted its negligence in an affidavit submitted in support of its motion to dismiss. In support of the motion, plaintiff Indira Parboo submits an affidavit dated May 27, 2020. Ms. Parboo affirms that on December 16, 2008, her mother Sumintra Sukhraj died. On December 16, 2008, she entered into a contract with defendant Pinelawn for the burial of her mother. Pursuant to the burial contract, a copy of which is submitted with the motion papers, she purchased Grave No. 1, Plot H, Range 82, Block 9, Section 90 in the Garden of Serenity for interment of her mother. Her mother was buried on December 18, 2008. On April 24, 2009, she purchased a bronze memorial grave marker from defendant Pinelawn to be placed on her mother’s grave. The bronze memorial was installed on October 23, 2009 by a Pinelawn employee. In April of 2019, she noticed that her mother’s headstone was moved to the adjacent gravesite. She reported the moved headstone to Camille Sabatino, Customer Service Manager of defendant Pinelawn. Ms. Sabatino denied that the headstone was moved. Thereafter, she showed Ms. Sabatino that the headstone had been moved. Ms. Sabatino denied that the headstone was moved. Defendant Pinelawn eventually admitted to her that the grave marker had previously been installed on an adjacent grave and had been relocated to her mother’s grave in or around January 2019. Defendant Pinelawn offered to refund the money that she had paid, which she did not accept. Every two weeks for a ten-year period, she visited, placed flowers on, and prayed to an empty grave. She actually and continuously walked over, sat on, and stood on her mother’s grave. As a result, she suffered severe emotional harm, psychological harm, mental distress, anxiety, stress, shock, insomnia and depression, and was deprived a proper interment of her mother. Plaintiffs also submit an affidavit from Brian Groblewski, the Vice President of defendant Pinelawn. Mr. Groblewski affirms that Pinelawn employees installed the bronze memorial. The bronze memorial marker was placed on the grave adjacent to that of plaintiffs’ mother. Mr. Groblewski further affirms that in or around December 2018 or January 2019, a Pinelawn employee removed the bronze memorial from the incorrect Grave No. 2 and reinstalled it atop the correct Grave No. 1. Defendant Pinelawn never notified plaintiffs of the error and movement of the headstone. Based on the evidence submitted in support of the motion, counsel for plaintiffs contends that defendant Pinelawn’s negligence is conclusively established by its own admission. Thus, plaintiffs are entitled to summary judgment. In opposition, defendant submits the affidavit of Camille Sabatino dated July 2, 2020, affirming, inter alia, she did not deny that the bronze grave marker was moved. Rather, she notified Mr. Groblewski about the relocation of the bronze memorial. She also reviewed relevant paperwork with Ms. Parboo and confirmed that plaintiffs’ mother was in fact buried in Grave No. 1. Pinelawn also submits a copy of its Rules and Regulations packet. Pursuant to the Rules and Regulations, “Pinelawn shall have the right to correct any error that may be made by its employees or any other person or persons in the locating or placing of a memorial, marker monument in the Cemetery”. Based on the evidence submitted in opposition, defendant Pinelawn contends that plaintiffs cannot allege or prove any damages because they never treated for any emotional harm. As such, plaintiffs are not entitled to summary judgment. Additionally, defendant Pinelawn contends that based on its Rules and Regulations, Pinelawn was permitted to move the grave marker. The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his or her position (see Zuckerman v. City of New York, 49 NY2d 557[1980]). “To establish a prima facie case of negligence, a plaintiff must demonstrate (1) a duty owed by defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom” (Solomon v. City of New York, 66 NY2d 1026, 1027 [1985]). Here, this Court finds that there is an issue of fact at least as to whether “there exists an especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious” (Johnson v. State, 37 NY2d 378, 382]). Accordingly, and for the above stated reasons, it is hereby ORDERED, that plaintiffs’ motion for summary judgment is denied. Dated: August 12, 2020
