Upon the foregoing papers, plaintiffs Jose Semidey (“Semidey”) and Awilda Rivera (collectively, “Plaintiffs”) move for an order pursuant to CPLR 3212, granting them partial summary judgment on the issue of liability on their first and second causes of action against the defendants Evergreens Cemetery Preservation Foundation Inc., The Cemetery of the Evergreens, and The Evergreens Cemetery (collectively “Defendants”). Defendants oppose the motion and cross move for an order granting them summary judgment, dismissing Plaintiffs’ complaint in its entirety. Plaintiff opposes the cross-motion. Background Plaintiff Semidey and co-plaintiff Awilda Rivera (collectively, “Plaintiffs”) are the son and daughter, respectively, of Claribel Oppenheimer (hereinafter “Decedent”). Decedent passed away in her home on June 18, 2021, and the plaintiffs were her only surviving children. On June 24, 2021, Decedent’s funeral took place at Provenzano Lanza Funeral Home. At her funeral, Decedent’s arms were folded inside of her coffin. After the funeral, Decedent’s relatives and friends attended her burial at Defendants’ cemetery. After the prayers were completed, those in attendance paid their final respects and placed roses on Decedent’s coffin. The funeral director then announced the lowering of the coffin into the grave. Defendants’ workers began to lower the coffin. The coffin went down approximately two feet, but then started to scrape the sides of the hole and would not descend to the bottom. Plaintiffs allege that Defendants’ workers failed to dig the grave to proper dimensions to accommodate the coffin. Defendants’ workers then pushed, lifted, and lowered the coffin over and over the try and get it into the ground, and the coffin got stuck. The workers then pulled the coffin from all sides causing sounds of scratching and scraping. Semidey states that one of Defendants’ workers unsuccessfully tried to push the coffin down multiple times with his hands. As time went on, the workers grew frustrated and started to pull move aggressively and began to argue among themselves. One of the workers then removed the flowers from the top of the coffin. Semidey lleges that members of his family were crying and at least one said that Defendants’ workers were breaking the coffin. Plaintiffs submit as Exhibit “C” video footage from the burial. This footage depicts workers gripping straps attached to the coffin, occasionally moving it in an abrupt fashion. Other workers are looking down into the grave and appear to be working near the head of the coffin. At some point the workers stop and the coffin appears to be partially open inside the grave. A worker removes a flower arrangement that had been resting on top of the coffin. Exhibit “D” is another video clip that shows workers standing around the grave with the coffin partially inside and it appears to be open. The workers, gripping straps attached to the coffin, then pull on the straps but the coffin does not move. Semidey states in his affidavit that the funeral director was not saying anything but stood there with a shocked look. The coffin then opened, but Defendants’ workers kept pulling and tugging, causing Plaintiffs’ family to hear her remains were going to fall out. When the top of the coffin opened, Decedent’s hands were no longer folded due to Defendants’ rough handling. Plaintiffs submit a photograph showing Decedent’s open coffin and her hands positioned close to each other but not folded. Semidey alleges that Defendants’ workers ignored the damage to the coffin and kept going, and the funeral director was trying to close it, to no avail. Semidey alleges that while this was happening, he pleaded with the workers to stop because the coffin was open, and the pastor Juan Rivera asked the cemetery workers to get the coffin back up from the grave. Defendants’ workers used their hands and straps around the coffin in a failed effort to raise it before they obtained a key for the winch and were finally able to do so. Plaintiffs submit as Exhibit “F” a video showing a worker twisting a tool near the grave. After raising the coffin from the grave, Defendants’ workers picked it up and moved it to the nearby grass for approximately one hour. Exhibit “G” is video footage of the raised coffin. The workers pick it up and place it on the ground nearby. Semidey states that the pastor then asked the funeral director to place the coffin in the hearse because of the heat. Semidey claims that Defendants’ workers were rude and screamed at the family to move out of the way. Semidey alleges while the coffin was still on the grass, Defendants’ worker used a backhoe to lengthen the grave, in full view of the mourners. Exhibit “H” is a video allegedly depicting this activity taking place while the coffin remains on the grass. Semidey states that the pastor was speaking with the funeral director who was trying to convince the family to keep the damaged coffin. The family told the funeral director that the coffin was damaged and unacceptable. Semidey alleges that due to Defendants’ workers, the coffin was bent, the hinges were damaged, and it would not properly close. The video shows the coffin lid not fully shut. The funeral director eventually agreed to replace the coffin due to the damage. The director and the cemetery’s representative then argued about who was responsible for transferring the body to a new coffin. Semidey alleges: “The family heard the funeral director tell the cemetery’s representative that it was her fault and responsibility.” Semidey understood that the remains were removed to a funeral home where they were transferred to a new casket. The mourners stayed at the cemetery during this time for another three hours. There were not enough chairs for everyone, and some mourners were forced to sit on a retaining wall. The burial resumed when the body was returned to the cemetery. Semidey alleges that Defendants’ workers lowered the coffin headfirst in to make it fit, rather than lower it horizontally. A video, attached as Exhibit “I,” shows workers lowering the coffin in the grave head-first, the coffin tilting at an angle, and lowering it into the grave. Relying on the above, Plaintiffs move for summary judgment on the issue of Defendants’ liability, on Plaintiffs’ causes of action for common law loss of sepulcher and relief under Public Health Law §4201. Defendants oppose the motion. They contend that Plaintiffs have no viable cause of action for common-law loss of sepulcher, because there are no allegations here that Defendants interfered with Plaintiffs’ right to the immediate possession of Decedent’s body. In addition, Plaintiffs do not allege that Defendants either conducted an unauthorized autopsy, inadvertently disposed of Decedent’s remains, and/or failed to notify Plaintiffs of Decedent’s death. Defendants further argue that Plaintiffs’ allegation that the grave was inadequately dug is conclusory in nature and insufficient to defeat Defendants’ motion, and this state does not recognize a cause of action for wrongful disinterment. Defendants further argue that Plaintiffs have failed to show beyond speculation that Decedent’s hands became unfolded during the burial as opposed to during any other time while transporting the body. Defendants claim that a loss of sepulcher is limited to situations where the body is “physically mishandled” which did not occur here. As for Plaintiffs’ Public health Law Claims, Defendants allege that they are immune from such claims pursuant to Public Health Law §4201(7). They submit a “510 Grave Authorization” signed by Semidey, which authorized Defendants to inter Decedent’s remains, and contained an indemnification clause which Defendants allege is applicable to this case. Finally, Defendants contend that Plaintiffs’ claim for infliction of emotional distress must be dismissed because Plaintiffs failed to allege that they were in a “zone of danger” or feared for their physical safety, and the cause of action is duplicative of Plaintiffs’ other causes of action. Plaintiffs’ contentions in opposition to Defendants’ cross-motion are addressed infra if necessary. The Court notes that Plaintiffs have consented to dismissal of their third cause of action (Pl. Aff. In Opposition to Cross-Motion, at Footnote 11). Standard of Review To be entitled to the “drastic” remedy of summary judgment, the moving party “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case.” (Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. (id. see also Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Facts must be viewed in the light most favorable to the non-moving party (Sosa v. 46th Street Development LLC, 101 AD3d 490 [1st Dept. 2012]). Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact (Zuckerman v. City of New York, 49 NY2d 557 [1980]). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v. Restant Constr. Corp., 18 NY3d 499 [2012]). Applicable Law and Analysis “The common-law right of sepulcher affords the deceased’s next of kin ‘absolute right to the immediate possession of a decedent’s body for preservation and burial and damages may be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent’s body’” (Shipley v. City of New York, 25 NY3d 645, 653 [2015], quoting Mack v. Brown, 82 AD3d 133, 137 [2d Dept. 2011]; see also Melfi v. Mount Sinai Hosp., 64 AD3d 26, 31-32 [1st Dept. 2009]). “The right itself ‘is less quasi-property and more the legal right of the surviving next of kin to find “solace and comfort” in the ritual of burial’” (id., quoting Melfi, 64 AD3d at 43). If a violation of the right to sepulcher is established, the decedent’s next of kin may be awarded damages for their resulting emotional suffering and mental anguish (see Melfi, 64 AD3d at 37). To recover under this theory of liability it must be shown that the plaintiff’s emotional injuries “were the natural and proximate consequence of some wrongful act or neglect on the part of the one sought to be charged” (Mack, 82 AD3d at 137-38 [internal citations and quotation marks omitted]). The First Department has instructed that such a claim is not limited to “instances where the next of kin is denied immediate possession of the decedent’s body” (Almeyda v. Concourse Rehabilitation & Nursing Center, Inc., 195 AD3d 437, 438-39 [1st Dept. 2021]). Rather, “damages may be awarded where the defendant ‘improperly deals with’ the decedent’s body ” (id., quoting Shipley, 25 NY3d at 653; Melfi, 64 AD3d at 31). In Almeyda, issues of fact precluded summary dismissal of the plaintiff’s common-law right of sepulcher claims where there was testimony that the decedent’s “ hands and feet were bound, his stomach was bloated, he was dirty and unshaven, and a tube was placed down his throat,” and “the area where the body was kept ‘seemed like [a] garbage dump’” (id. at 438). The Court found that the foregoing raised fact issues as to whether the defendants’ “mishandling and presentation of the body” violated the plaintiff’s right of sepulcher (id.). Defendants’ reliance on the dissent in Almeyda is unavailing, as such contentions were plainly rejected by the majority. Other cases have similarly found that the plaintiff has a viable cause of action against a defendant for mishandling a corpse where the record showed that the defendant improperly dealt with the decedent’s body (see Massaro v. O’Shea Funeral Home, 292 AD2d 349 [2d Dept. 2002][noxious odor emanating from the decedent's mausoleum --- t was later discovered that the decedent's casket was cracked and its contents leaking, requiring disinterment]; Gutnick v. Hebrew Free Burial Socy. for the Poor of the City of Brooklyn, 198 AD3d 880, 882 [2d Dept. 2021][decedent's body was not in the casket at the funeral, and the body was not located for some period of time]; Gostkowski v. Roman Catholic Church of Sacred Hearts of Jesus & Mary, 262 NY 320 [1933][decedent's body was exhumed from plot without the family's authorization]; see Wainright v. New York City Health & Hosps. Corp., 61 AD3d 851, 852 [2d Dept. 2009][plaintiff entitled to summary judgment against the defendants on the issue of liability where the decedent's body was placed in a refrigeration unit for five days, and the unit malfunctioned causing the body to become badly decomposed, defendants were on actual notice of problems with the unit and failed to correct them]; see also Brijlall v. R.G. Ortiz Funeral Home, Inc., 13 AD3d 322 [1st Dept. 2004][plaintiff stated a cause of action for negligence and negligent infliction of emotional distress by alleging that the defendants interfered with the decedent's burial]). Contrary to Defendants’ contention, a claim for loss of sepulcher is not limited to situations where there was physical mutilation of the decedent’s body. When considering such a cause of action, “the courts are not primarily concerned with the extent of the physical mishandling or injury to the body per se, but rather how such improper handling or injury affects the feeling and emotions of the surviving kin” (Lott v. State of New York, 32 Misc 2d 296 [Ct. of Claims, 1962]), because, as noted above, the claim is for the mental suffering caused by improper dealing with, not the injury to, the dead body (id.). A similar sentiment was recognized by the First Department in Melfi: “The law is not primarily concerned with the extent of physical injury to the bodily remains but with whether there were any improper actions and whether such actions caused emotional or physical suffering to the living kin” (64 AD3d at 38, quoting Scarpaci v. Milwaukee County, 96 Wis. 2d 663, 672 [1980][internal quotation marks omitted]). As explained in Almeyda: “Burial rituals involve more than simply placing a body in its final resting place” (195 AD3d at 439). “The right of sepulcher, evoking the mystery and sorry of death and the hope for an afterlife, has been ritualized since the earliest pre-Christian civilizations virtually every faith and society has exhibited a reverence for the dead” (Melfi, 64 AD3d at 32). Indeed, “[n]umerous Biblical references to burial shaped the Christian belief that proper burial in consecrated ground was essential to resurrection” (id. at 32-33, citing Genesis 50:26 [describing Joseph's burial]; Deuteromony 34:6 [describing Moses' burial]). In Lott, the family of the decedent received the wrong body from the hospital. The plaintiff’s decedent was erroneously brought to a different undertaker. The body was then embalmed and cosmetics were applied in direct violation of the decedent and her family’s religious beliefs. The decedent’s family was required to return the wrong body to the hospital’s mortuary, examine other bodies and identify the body of their mother, and finally receive the correct body in a condition inconsistent with the burial procedures of their religion (32 Misc 2d 296). On these facts the defendants were deemed liable to the plaintiffs because of their mishandling of the bodies (id.). Lott did not involve a situation where the body was disfigured or allowed to decompose; rather, the body was handled or dealt with in a way that was contrary to the plaintiff’s religious beliefs. Such mishandling was sufficient to render the defendants’ liable for the plaintiffs’ resulting mental suffering. Similarly, the plaintiff’s cause of action was upheld in other matters where there was no physical violation of the body (see Gutnick, 198 AD3d at 882; Gostkowski, 262 NY 320). In this case, the undisputed evidence shows that Defendants’ workers roughly handled the coffin as they were attempting to place it inside of a grave that was apparently not dug to the appropriate dimensions. As a result of Defendants’ actions, the lid of the coffin came open and Plaintiffs allege that the body’s arms were no longer folded — when they were in fact folded earlier at the funeral home. Plaintiffs also submit evidence that Defendants’ conduct caused the coffin to be damaged, requiring a replacement. The burial services were delayed for several hours while workers used a backhoe to create a larger grave. During this time the Decedent’s body, in the damaged casket, remained sitting on the ground. Eventually the workers were able to place the body into the grave, but to do so, they had to place the coffin in “headfirst” at an angle, as opposed to the traditional horizontal method of lowering the body. The Court finds the foregoing demonstrates that Defendants “improperly dealt with” Decedent’s body and violated Plaintiffs’ inherent right to find “solace and comfort in the ritual of burial” (Shipley, 25 NY3d at 653, citing Melfi, 64 AD3d at 31-32). As in Massaro in this matter the casket was damaged, as evidenced by the affidavit and video (Massaro, 292 AD2d at 351). Similar to Lott, the burial ritual was effectively derailed as Plaintiffs’ mother’s body was mistreated and mishandled (Lott, 32 Misc 2d at 298). Although there were no significant violations to the body itself, the extent of the injury to the body is not the primary concern (Melfi, 64 AD3d at 38). Given that the ceremony had to be stopped, the casket significantly pulled and wrestled with, a backhoe brought into the grave site, and the lowering the body into the grave headfirst, Plaintiffs were deprived of their right to find solace and comfort in the ritual of burial of their mother due to the Defendant’s improperly dealing with the body. Plaintiffs allege that family members were upset and crying during this time. While no specific evidence was presented that substantiated their claim of mental suffering, “[t]he likelihood of emotional injury is deemed so inherently genuine in such cases that neither proof of the plaintiffs’ accompanying physical harm nor of a specific medical diagnosis and course of treatment is essential to a successful prosecution of the claim” (Shipley v. City of New York, 80 AD3d 171, 177 [2d Dept. 2010], citing Johnson v. State of New York, 37 NY2d 378, 381-82 [1975], and Plunkett v. NYU Downtown Hospital, 21 AD3d 1022 [2d Dept. 2005]). In opposition to the motion, Defendants were required “establish the existence of material issues of fact which require a trial of the action” (Xiang Fu He v. Troon Management, Inc., 34 NY3d 167, 176 [2019][internal citation and quotation marks omitted]). Here, even assuming that Defendants have not “admitted” to Plaintiffs’ statement of material facts (22 NYCRR §202.8-g[c]), Defendants here submitted no admissible evidence contradicting Plaintiffs’ version of events. Contrary to their contentions, Plaintiffs’ allegations that the grave was improperly dug and the coffin mishandled were not speculative or conclusory. Rather, these contentions were properly based on Semidey’s own observations, and the authenticated video evidence submitted on the motion. His claims that the grave was improperly dug was based on the fact that, after the coffin could not be forcibly lowered into the grave, a backhoe was used to alter the grave’s dimensions. Once this was completed, the workers were able to fit the coffin into the grave. Plaintiffs’ submissions allow for the reasonable inference that Defendants’ actions were wrongful or neglectful (see Chavez v. Prana Holding Company LLC, 200 AD3d 449 [1st Dept. 2021]; Mack, 82 AD3d at 137-38). Defendants, in opposition, failed to refute any of these factual allegations or present any evidence that their actions were reasonable and proper under the circumstances. Plaintiffs are therefore entitled to summary judgment on their first cause of action, and Defendants’ cross-motion for summary judgment on this cause of action is denied. The Court finds that Plaintiffs’ moving papers fail to adequately address their entitlement to summary judgment with respect to their second cause of action — violation of Public Health Law §4201. Defendants argue that Plaintiffs’ second cause of action must be dismissed because Defendants are entitled to civil immunity pursuant to Public Health Law (“PHL”) §4201(7). The statute provides: No cemetery organization, business operating a crematory or columbarium, funeral director, undertaker, embalmer, or funeral firm shall be held liable for actions taken reasonably and in good faith to carry out the written directions of a decedent as stated in a will or in a written instrument executed pursuant to this section. No cemetery organization, business operating a crematory or columbarium, funeral director, undertaker, embalmer or funeral firm shall be held liable for actions taken 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, provided that such action is taken only after requesting and receiving written statement that such person: (a) is the designated agent of the decedent designated in a will or written instrument executed pursuant to this section; or (b) that he or she has no 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 two of this section. In Mack v. Brown, the Appellate Division held: ” [T]o be entitled to the protection of [this] statute, the cemetery organization, crematory, or funeral firm must also establish that it requested and received a written statement that the decedent’s agent is designated by a will or written instrument executed pursuant to the statute or, alternatively, that the designee has no knowledge of a will or written instrument directing the disposition of the decedent’s remains and that such person possesses statutory priority to control the decedent’s remains” (82 AD3d 133, 139 [2d Dept. 2011]). In this case, Defendants failed to submit any evidence that they requested a written statement pursuant to this statute or that they were carrying out written directives permitting them to dig the grave to an insufficient length or otherwise interfere with the burial. Defendants submit a “510 Grave Authorization” form (“Authorization”), signed by Semidey, which authorizes Defendants to “open grave number 9816 section SILOAM to remove any obstructing planting or other obstruction to inter the remains of CLARIBEL OPPENHEIMER.” Assuming arguendo that the form is admissible, nothing in this writing directs the manner in which Decedent should be buried or how to dig the grave, aside from a direction to remove plantings or other obstructions. Defendants cite what appears to be an indemnification clause that is found in the Authorization. The clause does not insulate Defendants from liability in this case. It states: I will hold, identify [sic] and save harmless, “The Evergreens” Cemetery, its officers, directors, employees, agents and representatives from any and all damages, losses, costs or expenses of any nature including without limitation reasonable attorney’s fees, resulting from any claims by any person claiming any right, title or interest in the grave for any reason whatsoever related to the actions taken by “The Evergreens” Cemetery in reliance upon this certificate. This matter does not involve a claim by a person “claiming any right, title, or interest in the grave,” therefore it is not applicable to these facts. In light of the above, Plaintiff’s motion for summary judgment on their first cause of action is granted. Defendants’ cross-motion for summary judgment is denied without reaching the issue of whether the cross-motion was procedurally defective due to their failure to provide a statement of material facts in compliance with 22 NYCRR §202.8(g). Finally, Plaintiffs consented to the dismissal of their third cause of action (infliction of emotional distress). That cause of action is therefore dismissed as abandoned. Conclusion Accordingly, it is hereby ORDERED, that Plaintiffs’ motion for summary judgment on the issue of Defendants liability on Plaintiffs’ first cause of action is granted, and it is further, ORDERED, that Plaintiffs’ motion for summary judgment is otherwise denied, and it is further, ORDERED, that Plaintiffs’ third cause of action is dismissed as abandoned, and it is further, ORDERED, that Defendants’ cross-motion for summary judgment is denied. This constitutes the Decision and Order of this Court. Dated: March 14, 2022
