Written by: Lesley E. Niebel
The death of a loved one, family member, or friend can often be emotional for those who are left behind. Many funeral practices are rooted in personal, cultural, and religious traditions, reflecting a wide range of beliefs and values in an effort to send the deceased to a final resting place. See Shipley v. City of New York, 25 N.Y.3d 645, 660 (2015) (J. Rivera dissenting); Zhuangzi Li v. New York Hosp. Med. Ctr. of Queens, 147 A.D.3d 1115, 1118-19 (2d Dep’t 2017) (J. Roman dissenting). As a result of this desire to preserve and bury the dead, New York common-law recognizes the right of sepulcher, which gives the next of kin the absolute right to the immediate possession of a decedent’s body for preservation and burial, and that damages will be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent’s body. Shipley, 25 N.Y.3d at 653 (2015) (reasoning a medical examiner’s obligations under the common-law right of sepulcher is fulfilled upon returning the deceased’s body to the next of kin after a lawful autopsy has been conducted); Shepherd v. Whitestar Dev. Corp., 113 A.D.3d 1078, 1080 (4th Dep’t 2014); Melfi v. Mount Sinai Hosp., 64 A.D.3d 26, 31 (1st Dep’t 2009); see Darcy v. Presbyterian Hosp. in City of N.Y., 202 NY 259, 262-63 (1911), rearg denied 203 N.Y. 547 (1911). “The right itself ‘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 the burial.’” Martin v. Ability Beyond Disability, 153 A.D.3d 695, 697 (2d Dep’t 2017); Shipley, 25 N.Y.3d at 653.
One of the earliest cases to discuss the right of sepulcher is the New York Court of Appeals decision in Darcy. 202 N.Y. 259 (1911). In Darcy, decedent was taken to a hospital to receive treatment for aliments when he passed away. 202 N.Y. at 261. Plaintiff in the action, his mother and only surviving next of kin, was entitled to take possession of the body for burial. Darcy, 202 N.Y. at 261. Immediately after the death of her son, plaintiff asked the superintendent of the hospital for his body and sent an undertaker for the same. Id. The hospital refused and neglected to deliver the body to plaintiff. Id. Subsequently, the hospital asked plaintiff for consent to perform an autopsy, which she refused. Id. Despite plaintiff’s refusal, the hospital performed the unauthorized autopsy. Id. Consequently, plaintiff brought an action against the hospital for depriving her of the right of possession of the body for burial and causing her, among other things, mental distress and anguish. Id. Ultimately, the court held such an action to recover damages for her wounded feelings and mental distress existed, but it ordered a new trial giving the hospital the opportunity to put on evidence that the autopsy was authorized by statute. Id. at 263-65.
Since Darcy, in order for a plaintiff to recover in a cause of action for interference with the right of sepulcher, the plaintiff must show: “(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, which is generally presumed.” Shepherd, 113 A.D.3d at 1080; Kairis, 2017 N.Y. Slip Op 51060(U) at *5; 2 N.Y. PJI2d 3:6 at 76-77 (2013).
New York Public Health Law § 4201 lists in descending order the priority of persons who shall have the right to dispose of a decedent’s remains. See Nwankwo v. New York-Presbyt, 2016 N.Y. Slip Op 31047(U), *3-4, *7-8 (N.Y. Cty. 2016). In addition, under Public Health Law § 4201, one who acts “reasonably and in good faith” in disposing of a decedent’s remains are not subject to civil liability if disposal is done with the reasonable belief such disposal is consistent with statute. See Martin, 153 A.D.3d 695 (illustrating defendants where entitled to judgment as a matter of law by submitting evidence demonstrating actions concerning decedent’s burial were reasonable and made it good faith under the circumstances and in compliance with Public Health Law § 4201  [b]); see also Kairis v. John, 2017 N.Y. Slip Op 51060(U), *3 (Onondaga Cty. 2017); 2 N.Y. PJI2d 3:6 at 76-77 (2013); Mack v. Brown, 82 A.D.3d 133, 141-42 (2d Dep’t 2011); Turner v. Owens Funeral Home, Inc., 41 Misc. 3d 444, 450 (Bronx Cty. 2013) (holding Public Health Law § 4201 (6) does not insulate the defendant hospital from liability).
Courts have found a defendant interfered with a plaintiff’s right to immediate possession of the decedent’s body in cases where there have been an unauthorized autopsy, disposal of remains inadvertently, or by failure to notify the next of kin of the death. Melfi, 64 A.D.3d at 39 (citations omitted). This, however, is not an exhaustive list. See Turner, 41 Misc. 3d at 449-50. The damages for violation of the right of sepulcher “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.” Martin, 153 A.D.3d at 697; Shipley, 25 N.Y.3d at 653. An award of damages can vary depending on the jurisdiction. In Estate of Loughlin, the second department affirmed a damages award from the Court of Claims where each claimant received $75,000 each. 146 A.D.3d 863, 864 (2d Dep’t 2017); Jones v. City of New York, 80 A.D.3d 516, 516 (1st Dep’t 2011) (jury award of $800,000 was reduced by the Appellate Division to $400,000). Moreover, even in a case where the damages are arguably minimal, this does not limit a plaintiff’s right of recovery. See Rugova v. City of New York, 132 A.D.3d 220, 230 (1st Dep’t 2015).
The right of sepulcher also extends to stillborn infants. Zhuangzi Li v. New York Hosp. Med. Ctr. of Queens, 147 A.D.3d 1115, 1118 (2d Dep’t 2017) (citing Emeagwali v Brooklyn Hosp. Ctr., 60 A.D.3d 891, 892 ); Correa v. Maimonides Medical Ctr., 165 Misc. 2d 614, 617, 619-20 (1995); Klumbach v. Silver Mount Cemetery Assn., 242 A.D. 843, 843 (2d Dep’t 1934). Despite this, the case law is unclear whether the rights of sepulcher are extended to fetal remains under twenty (20) weeks of gestational age. See Nesbeth v St. Luke’s Hosp., 2014 N.Y. Misc. LEXIS 908 (N.Y. Cty. 2014) (reasoning that under Public Health Law § 4162, fetal tissue under twenty weeks is not required to be treated in the same manner as a deceased person for the purposes of burial and removal permits; thus, concluding there is no cognizable legal theory to support Plaintiffs’ common-law right to sepulcher). In Zhuangzi Li, however, the court found the Hospital created a right of sepulcher where one might not otherwise exist by affirmatively representing to plaintiffs that the fetus would receive a burial.
An additional hurdle is imposed in cases where a plaintiff sues a governmental entity based on the right of sepulcher, and in most cases that claim will be subject to the defense of governmental immunity. See Lee v. City of New York, 2017 N.Y. Slip Op 30247(U) (N.Y. Cty. 2017); Drever v. State of New York, 134 A.D.3d 19 (3d Dep’t 2015). Generally, in order for liability to be imposed for the negligent performance of a governmental function, the defendant must have assumed a special duty to the claimant. Drever, 134 A.D.3d at 20, 25.
Interference with the right of sepulcher claims can become a heavily fact-specific inquiry and involves a thorough understanding of the relevant case law and statutes.