Opinion
Index No. 606787/2019 Cal No. 2021003750T Mot. Seq. Nos. 003 MD004 MotD 005 XMotD
08-06-2021
NANCY PASTORE, DEBRA PALMER, THOMAS O'KEEPE, and JENNIFER ALFEO, Plaintiffs, v. MALONEY'S LAKE FUNERAL HOME LLC, CATHOLIC CEMETERIES OF THE ROMAN CATHOLIC DIOCESE OFROCKVILLE CENTRE, INC., AND HOLY SEPULCHRE CEMETERY, Defendants.
SAMUEL GROSSMAN, ESQ., Attorney for Plaintiffs. HURWITZ & FINE, PC, Attorney for Defendant Moloney's Lake, Funeral Home LLC. MORRIS DUFFY ALONSO & FALEY, Attorney for Defendant Catholic Cemeteries of the Roman patholic Diocese of Rockville Center, Inc.
Unpublished Opinion
MOTION DATE 6/22/21 (003)
MOTION DATE 7/07/21(004).
MOTION DATE 7/13/21 (005).
ADJ. DATE 7/13/21.
SAMUEL GROSSMAN, ESQ., Attorney for Plaintiffs.
HURWITZ & FINE, PC, Attorney for Defendant Moloney's Lake, Funeral Home LLC.
MORRIS DUFFY ALONSO & FALEY, Attorney for Defendant Catholic Cemeteries of the Roman patholic Diocese of Rockville Center, Inc.
PRESENT: Hon. KATHY G. BERGMANN, Justice of the Supreme Court.
HON. KATHY G. BERGMANN, JUDGE.
Upon the following papers read on these e-filed motions for summary judgment: Notice of Motion/Order to Show Cause and supporting papers filed by plaintiffs, on April 27, 2021 filed by defendant Catholic Cemeteries of the Roman Catholic Diocese of Rockville Centre, Inc;, on June 3, 2021; Notice of Cross Motion and supporting papers filed by defendant Moloney's Lake Funeral Home LLC. on June 30, 2021; Answering Affidavits and supporting papers filed by defendant Catholic Cemeteries of the Roman Catholic Diocese of Rockville Centre, Inc., on June 2, 2021; filed by plaintiff on June 14, 2022 filed by plaintiffs on July 1, 2021; Replying Affidavits and supporting papers filed by defendant Catholic Cemeteries of the Roman Catholic Diocese of Rockville Centre. Inc. on June 22, 2021filed by plaintiffs, on July 1, 2021; Other _________ it is
ORDERED that the motion (003) by plaintiffs Nancy Pastore, Debra Palmer, Thomas O'Keefe, and Jennifer Alfeo, and the motion by (004) by defendant Catholic Cemeteries of the Roman Catholic Diocese of Rockville Centre, Inc. are consolidated for the purpose of this determination; and it is further
ORDERED that the motion by plaintiffs Nancy Pastore, Debra Palmer, Thomas O'Keefe, and Jenifer Alfeo for summary judgment in their favor on the issue of defendants' liability is denied; and it is further
ORDERED that the motion by defendant Catholic Cemeteries of the Roman Catholic Diocese of Rockville Centre, Inc. for summary judgment dismissing the complaint against it is granted in part and denied in part; and it is further
ORDERED that the cross motion by defendant Moloney's Lake Funeral Home LLC for summary judgment dismissing the complaint and cross claims against it is granted in part and denied in part.
Plaintiffs Nancy Pastore, Debra Palmer, Thomas O'Keefe, and Jennifer Alfeo commenced this action to recover for damages they allegedly sustained when the body of their father, Thomas O'Keefe (hereinafter decedent), who passed away On January 15, 2019, was buried at Holy Sepulchre Cemetery (hereinafter the cemetery), without their presence, on January 23, 2019. On January 16, 2021, decedent's family allegedly made arrangements with defendant Moloney-s Lake Funeral Home LLC, d/b/a: Moloney's Lake Funeral Home & Cremation Center (hereafter the funeral home defendant), for a graveside burial service at the cemetery, which allegedly was owned and operated by defendant Catholic Cemeteries of the Roman Catholic Diocese of Rockville Centre, Inc. (hereinafter the cemetery defendant). The parties do not dispute that decedent's grave was not prepared for his burial when his family arrived at the cemetery on the date of his funeral, that a chapel service was held at the cemetery, and that his gravesite still was not ready by the time that the chapel service! was completed. A cemetery employee and/or funeral director allegedly directed decedent's family not to wait for his grave to be prepared for his burial, but to go to lunch, and then to return to the cemetery for a service. It is undisputed that decedent's body was buried before his family returned to trie cemetery from lunch.
Plaintiffs assert claims for, inter alia, loss of sepulcher, intentional Infliction of emotional distress ("IIED"), negligent infliction of emotional distress ("NTED"), and punitive! damages. By the verified complaint, as amplified by the verified bill of particulars, plaintiffs allege, [among other things, that the funeral home defendant, by its agents, servants, and/or employees, was negligent in, inter alia, failing to timely and properly notify the cemetery defendant of decedent's funeral, failing to have an adequate system in place to notify me family of decedent's bun cemetery before his burial. Plaintiffs also allege that the cemetery defendant, by its agents, servants* and/or employees, was negligent in, inter alia, failing to have decedent's grave timely opened, and failing to direct its employees to wait Until the family conducted a graveside service before burying him, and they repeat many of the same allegations asserted against the funeral home defendant. Plaintiff's now move for summary judgment in their favor on the issue of defendants' liability. Plaintiffs contend, among other things, that they were deprived of their right of sepulcher, and that defendants improperly handled decedent's body. In support of their motion, plaintiffs submit, among other things, their own affidavits, arid the transcripts of the deposition testimony of Francis Moloney, Scott Kramer, Albert Pickford, and Yanira Figueroa.
The cemetery defendant also moves for summary-judgment dismissing the complaint against it. The cemetery defendant argues, among other things, that it did not violate plaintiffs' right of sepulcher, that it acted in good faith in performing decedent's burial service, and that: t did not negligently or intentionally inflict emotional distress on plaintiffs. It also contends that plaintiffs are not entitled to an award of punitive damages. In support of its motion, the cemetery defendant submits, among other things, the transcripts of the deposition testimony of plaintiffs, Moloney, Kramer, Pickford, and Figueroa.
The funeral home defendant cross-moves for summary judgment dismissing the complaint and cross claims against it. The funeral home defendant argues, in part, that it did not violate plaintiffs' right Of sepulcher, and that it performed decedent's burial services in good faith.; It also argues that it did not negligently or intentionally inflict emotional distress on plaintiffs, and that plaintiffs are not entitled to an award of punitive damages. In support of its cross motion, the funeral home defendant submits, among other things, the transcripts of the deposition testimony of plaintiffs:, Moloney, Kramer, Pickford, and Figueroa.
At the outset, the Court reached the merits of plaintiffs' summary judgment motion. While the Court does not condone plaintiffs' failure to submit a separate statement of material facts with their motion, as required by Uniform Rules for Trial Courts (22 NYCRR) § 2028-g, the Court exercises its discretion to disregard such omission (see CPLR 2001). Notably, defendants also seek summary judgment in their favor on the issue of their liability, and plaintiffs submit a counter statement to the statement of material facts submitted by the cemetery defendant. Contrary !to the contentions of the cemetery defendant, plaintiffs submitted a complete set of the pleadings for this action, as required by CPLR 3212 (b), and their motion was not procedurally defective.
At Pastore's deposition, she testified that her family discussed the details of decedent's arrangements, including holding a graveside service, with Scott Kramer before the date of his funeral, which is further confirmed by her affidavit. It is undisputed that Kramer was a funeral director employed by the funeral home defendant all relevant times. Pastore testified that Kramer ensured the family that he would make arrangements with the cemetery. She also testified that on the date of decedent's funeral, after the family arrived at the cemetery, Kamer told her and her siblings that a graveside service could not be performed, since his grave was not ready for his burial. Kramer allegedly had no explanation for the grave not being prepared. Pastore elaborated th it Kramer asked multiple times whether a chapel service could be performed instead of a graveside service, and she confirmed the same in her affidavit, By her affidavit, - Pastore contends that one of the funeral directors suggested that the family proceed to their planned lunch, and that the funeral would be completed when they returned. She testified that she never was told when she was expected to return to the cemetery from lunch before she left for lunch.
Pastore also testified that her family remained at the restaurant, located approximately 20 minutes away from the cemetery, for approximately 114 to 2 hours. She further testified that she did not remember whether she received any calls from the funeral home, and that she did not know whether anyone else spoke to the funeral home, while the group was at lunch. Although Pastore testified that Nancy Handler, who is her aunt, and Yanira Figueroa, who is her friend, informed her that the cemetery workers ended work at 2:30 p.m., and that they were not going to wait for foe group to return to bury decedent, by her affidavit, she later denied that anyone told her when the cemetery workers left for the day. Pastore testified that she never directed foe funeral home or cemetery for continue with decedent's burial, and that she did not law of anyone who directed that the burial proceed, while her family was at lunch. By her affidavit, she further insists that she did not give permission anyone to bury her father before holding a graveside service, and she avers that she was never told by the cemetery or funeral director that the chapel service was to be held in lieu of a graveside service. She testified that decedent's burial was completed by the time that the family returned to the cemetery from lunch between approximately 4:00 p.m. and 4:15 p.m.
By her affidavit, Palmer avers that Kramer told her and her sister, Alfeo, that "[they] should go to lunch and everything will be ready when [they] get back." She further avers that Kramer was informed that the family was going to lunch, and that he never informed them of when they should return. Palmer testified that no one discussed when the group had to return to the cemetery- from lunch, and contends the same in her affidavit. According to her deposition testimony, she never received any calls from the funeral home regarding decedent's burial, and she was not aware of anyone who spoke to the funeral home, while the group was at lunch. By her affidavit, she elaborates that she never received any calls from anyone from the funeral home regarding when the group was expected to return for decedent's burial, and that she was not aware of anyone who received a call regarding-the same. She also contends that she never gave permission for decedent to be buried without her family's presence, and that the cemetery and funeral director never told her that a chapel service was to be held in place of a graveside service.
At O'Keefe's deposition, he testified that he was not involved in decedent's funeral arrangements, which is further confirmed by his affidavit. He also testified that he never heard anyone indicate that the cemetery informed him or her that the cemetery would no wait for the group's return to the cemetery to bury decedent. By his affidavit, O'Keefe avers that defendants never informed him that they would not wait until the family's return to foe cemetery from lunch to bury decedent's body, that the cemetery and funeral director never indicated that a chapel service was to be held in lieu of a graveside service, and that he never gave permission to anyone to bury decedent before a graveside service.
At Alfeo's deposition, she testified that her family met with "Scott]' to discuss foe details of decedent's arrangement, including conducting a graveside service, prior to the date of his funeral, which is confirmed by her affidavit. By her affidavit, Alfeo avers that on foe morning of decedent s funeral, Kramer asked foe family several times whether they wanted to perform a chapel service rather than a graveside service, and that the family again insisted that a graveside service be performed. According to Alfeo's deposition testimony, "Scott" informed the family that decedent's grave was not ready after they arrived at the cemetery on the date of the funeral. Alfeo testified that "Scott" stated that he had no explanation for the burial site not being prepared. She further testified that "Scott" directed the family to go to a chapel for a service. She elaborated that he said that "[they'll] have the service in the Chapel. The grave should be ready by then, and then [they'll] go to the grave site [sic]." Alfeo testified that "Scott" subsequently suggested that family go to lunch, and that prayers would be said upon their return to the cemetery, which is further confirmed by her affidavit. She also testified that she responded that the group would go to lunch, and that the graveside service would be held when they returned to the cemetery. By her affidavit, she avers that she never spoke to anyone regarding when the group should return to the cemetery, that she did not receive any calls from the funeral home or cemetery regarding the same, and that she did not hear anyone in her group speak to the funeral home or cemetery regarding the same, while the family was at lunch for approximately 1 to 1½ hours. She also avers that the cemetery and funeral director never informed her that chapel service would take the place of the graveside service, and that she never gave permission to anyone to bury decedent before her family's return to the cemetery.
Kramer appeared for a deposition on behalf of the funeral home defendant. He testified that he was employed as a funeral director by the funeral home defendant in January 2019. Kramer testified that he initially became involved in planning decedent's arrangements for on January 16, 2019. According to Kramer's deposition testimony, on the morning of decedent's funeral, "[i]t was clear" that a graveside service was to be held based on his discussion with the family. Kramer testified that when he arrived at the cemetery, at approximately 1:00 p.m., he went inside the cemetery's office, and he spoke with a woman named "Barbara," who allegedly informed him that decedent's grave was not ready. Kramer allegedly was "dumbfounded" when he found out that the grave was not ready. Kramer testified that he asked "Barbara," "What happened?" "Barbara" allegedly responded that the grave was not open, and that there was no order for it. Kramer further testified that he responded that he personally spoke to a "Maureen." Kramer allegedly spoke to "Maureen" on January 17, 2019.
At his deposition, Kramer also testified that on the date of decedent's funeral, he had a conversation with Pastore, her sisters, arid a very large group in the chapel, and that he told them that "[i]f [they] want to go to lunch, the cemetery will continue their process." He further testified that the family told him that they had an "appointment" for lunch. Kramer allegedly did not know the location of the restaurant where the family was going to lunch until "[he] finally called them back later in the process." Kramer testified that he did not tell the family not to go to lunch, and that he did not provide a "ballpark figure" for when they should return to the cemetery from lunch before they left. After the completion of a chapel service, Kramer allegedly left the cemetery to attend jury duty, and was replaced by "Nicholas" as funeral director.
According to Kramer's deposition testimony, he called Pastore to inform the family that decedent's grave Was ready, while he was en route to jury duty. Kramer testified that he told Pastore that "the cemetery actually has the grave open and they're ready to commit to burial," and that he asked her, "Do you want to come out and witness?" Kramer testified that Pastore responded, "Talk to my aunt." He elaborated that "[Pastore] was overwhelmed and there was a lot of noise that she was going through at the restaurant." He further stated that he spoke to "Susan," that he told her that "[t]he cemetery was complete," and that "(t]hey were ready to commit the body to the ground."; Kramer allegedly asked "Susan," "Do you want them to wait, if you want to come out and witness?" Kramer testified that "Susan" apparently was having a conversation with "the rest of the room" before answering his question.
He further testified that he responded that "[he's] going to have [the cemetery] complete and finish the grave," and that "[t]hey'11 finish the burial and [the family will] just come out after lunch" in response to his conversation with "Susan."
According to Pickford's testimony, he was employed by the cemetery defendant as an assistant director at the time of decedent's funeral. Pickford testified that he officiated a committal service in a chapel for decedent's family with five minutes advance notice. Pickford explained that the same service was performed whether it was performed in a chapel or graveside, and that the service that he performed in the chapel would not have been repeated at the graveside. He further testified that at approximately 1:00 p.m., "[he] asked the O'Keefe family, in general, in mass, if they would like to stay for the next half-hour, 40 minutes for. the committal and to have it ready." He stated that the family responded, "No, [they're] going to lunch." Pickford testified that the gravediggers immediately began to work on decedent's grave, and that they completed digging his grave within approximately 30 to 40 minutes. While the gravediggers at the cemetery allegedly typically worked from 7:C 0 a.m. to 3:30 p.m., their working hours allegedly could be extended under certain circumstances. He testified that he never offered the family the Option of having the cemetery workers work overtimb, and that the family never requested the same.
Non party witness Figueroa testified that she attended decedent's funeral, and that she went to the cemetery's office after the conclusion of the chapel service. Decedent's family and friends, except for four people, including "Aunt Sue," allegedly already left the cemetery for the restaurant by the time that Figueroa went inside the office. According to her deposition testimony, Figueroa told a woman inside of the office to ensure that decedent's family was present for his burial. Figueroa testified that the woman responded that the workers go home at a certain time. While Figueroa allegedly could not remember the precise time that the woman indicated that the workers leave the cemetery, she also testified that "[she] believe[d] [the woman] said 4:00/4:30." She subsequently testified that she was "almost positive" that the woman at the cemetery's office told her that the workers go home before 4:00 p.m. No cemetery employees allegedly communicated to Figueroa the time when decedent's grave would be ready for his burial, or the option of paying the cemetery workers to work overtime.
Figueroa testified that she left the cemetery at 1:09 p.m., and that she thereafter traveled to a restaurant, which was a maximum of 15 minutes away from the cemetery. She further testified that she told plaintiffs that the group had to return to the cemetery when she arrived at the restaurant. Figueroa allegedly indicated that a woman said that the cemetery employees leave at 4:00 p.m. Figueroa testified that it was still light outside, and that the cemetery's gates were open, when the group left the cemetery after returning from lunch.
Moloney, who allegedly is a licenced funeral director, testified that he has been the president of the funeral home defendant for nearly 20 years. He stated that Kramer was the funeral director assigned to handle decedent's funeral, and that he eventually was replaced by Nicho las Wheeler as funeral director. Moloney testified that he believed that he first discussed decedent's burial with the cemetery on January 29, 2019, and that he initially spoke to a "Chris," who allegedly told him, in essence, that the cemetery did not receive an order for the funeral.
"The common-law right of sepulcher affords the deceased's next of kin an '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 N.Y.3d 645, 653, 16 N.Y.S.3d 1 [2015], quoting Mack v Brown, 82 A.D.3d 133, 137, 919 N.Y.S.2d 166 [2d Dept 2011]; see Turner v Owens Funeral Home, Inc., 189 A.D.3d 911, 137 N.Y.S.3d 142 [2d Dept 2020]; Cansev v City of New York, 185 A.D.3d 894, 128 N.Y.S.3d 229 [2d Dept 2020]). The right of sepulcher protects the surviving next of kin's right to find "solace and comfort in the ritual of burial" (Shipley v City of New York, supra at 653, quoting Melfi v Mount Sinai Hosp., 64 A.D.3d 26, 32, 877 N.Y.S.2d 300 [1st Dept 2009]; see Fox v Mark, 181 A.D.3d 560, 118 N.Y.S.3d 726 [2d Dept 2020], Iv denied 35 N.Y.3d 917, 133 N.Y.S.3d 544 [2020]; Martin v Ability Beyond Disability, 153 A.D.3d 695, 59 N.Y.S.3d 766 [2d Dept 2017]), and "is deeply rooted in many religious traditions" (Henderson v Kingsbrook Jewish Med. Ctr., 91 A.D.3d 720, 721, 936 N.Y.S.2d 318 [2d Dept 2012]; see Melfi v Mount Sinai Hosp., supra). A claim for a vioation of the right of sepulcher is intended "to compensate the next of kin for the emotional suffering and mental anguish which they experience from the interference with their ability to properly bury their decedent" (Henderson v Kingsbrook Jewish Med. Ctr., supra at 721). To establish a claim for violation of the right of sepulcher, a plaintiff must demonstrate "(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"(Turner v Owens Funeral Home, Inc., supra at 912-912, quoting Green v lacovangelo, 184 A.D.3d 1198, 1200, 125 N.Y.S.3d 790 [4d Dept 2020]; see Shepherd v Whitestar Dev. Corp., 113 A.D.3d 1078, 977 N.Y.S.2d 844 [4d Dept 2014]). "In decisions affecting this type 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 feelings and emotions of the surviving kin" (Lott v State of New York, 32 Mise2d 296, 298, 225 N.Y.S.2d 434 [Ct Cl 1962]). Further, to recover for such emotional injuries, "a plaintiff must demonstrate 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"' (Turner v Owens Funeral Home, Inc., supra at 913, quoting Mack v Brown, supra at 138 [internal quotation marks omitted]).
Moreover, Public Health Law § 4201 addresses, inter alia, the liability of cemetery organizations and funeral firms in carrying out the directions of a person who represents that he or she is entitled to control the disposition of a decedent's remains (see Public Health Law § 4201 (7); Mack v Brown, supra). Public Health Law § 4201 (7) sets forth, in relevant part, that no Cemetery organization 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.' However, to be entitled to the protection of the statute, the cemetery organization or funeral firm must demonstrate 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" (Mack v Brown, supra at 139; see Public Health Law § 4201 [7]; Myer Funeral Serv. Corp, v Zucker, 188 A.D.3d 88, 136 N.Y.S.3d 509 [3d Dept 2020]).
Plaintiffs failed to establish their prima facie right to summary judgment in their favor on the issue of defendants' liability. Plaintiffs failed to demonstrate, prima facie, hat defendants violated their right of sepulcher (see Martinez v Jewish Home &Hosp., 147 A.D.3d 415, 45 N.Y.S.3d 790 [1st Dept 2017]; Zhuangzi Liv New York Hosp. Med. Ctr. of Queens, 147 A.D.3d 1115, 48 N.Y.S.3d 225 [2d Dept 2015]). Based on their submissions, there is conflicting evidence regarding whether defendants, in fact, acted negligently with respect to handling decedent's remains as related to lis burial (see Zhuangzi Li v New York Hosp. Med. Ctr. of Queens, supra). Notably, according to Kraiper's deposition testimony, he contacted Pastore, informing her that decedent's grave was ready for his burial, and asking whether she wanted to witness it, and she directed him to speak to her "Aunt Susan." Pistore testified that he reiterated to "Aunt Susan" that decedent's grave was ready for his burial and asked her whether she wanted the cemetery to wait to bury him. Kramer allegedly directed the cemetery to proceed with decedent's burial before the his family's return to the cemetery based on hi$ conversation with "Aunt Susan." Moreover, Pickford's deposition testimony indicates that he asked the family whether they wanted to wait for the committal, and that the family responded, "No, [they 're] going to lunch." Accordingly, plaintiffs' motion is denied, regardless of the sufficiency of ti e opposition (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.2d 316 [1985]).
The funeral home defendant, and the cemetery defendant, moving separately, failed to establish their prima facie entitlement to summary judgment dismissing plaintiffs' claim for Violation of their right of sepulcher against them. Significantly, defendants failed to eliminate triable issues of fact as to whether defendants interfered with plaintiffs' right to the immediate possession of decedent's body for burial (see Zhuangzi Li v New York Hosp. Med. Ctr, of Queens, supra., Nesbit v Turner, 15 A.D.3d 552, 792 N.Y.S.2d 84 [2d Dept 2005]; Prescott v Turner, 15 A.D.3d 557, 792 NY$2d 80 [2d Dept 2005]). Based on their submissions, namely, the position testimony for this action, the facts and circumstances surrounding decedent's burial are largely disputed. For instance, there is conflicting evidence as to whether the funeral home defendant timely notified the cemetery defendant of decedent's funeral, and whether defendants negligently failed to wait for the family to return to the cemetery before burying his body. As previously indicated, Kramer insisted that he informed the cemetery defendant of decedent's funeral the day after he initially met with the family to discuss his arrangements, while various cemetery personnel denied that the cemetery defendant received any advance notice of his funeral. Moreover, although Kramer contends that he contacted Pastore regarding decedent's turial, and that she directed him to speak to her "Aunt Susan," he acknowledged that Pastore seemed "overwhelmed," and that he heard "a lot" of background noise, at the time of their conversation. Despite plaintiffs' purported repeated insistence on holding a graveside service for decedent, Kramer allegedly proceeded to have the cemetery defendant complete the burial before the family returned to the cemetery based on his conversation with "Aunt Susan," Pastore deposition testimony also indicates that she never gave permission to defendants to proceed with decedent's burial, and that she is not aware of anyone who did, while her family was at lunch. Defendants further failed to establish, prima facie, that their actions concerning decedent's burial were taken "reasonably" and in "good faith" (see Public Health Law § 4201 [7]; cf. Myer Funeral Serv. Corp, v Zucker, Martin v Ability Beyond Disability, supra-, Mack v Brown, supra). Defendants also failed to set forth that they requested and received the written statements required under Public Health Law § 4201 (7) in order to be entitled to the statutory protection. In any event, plaintiffs' submissions, namely their affidavits, were sufficient to raise a triable issue of fact as to whether defendants violated their right of sepulcher (see CPLR 3212 [b]; see also Finley v Atl. Transp. Co., Ltd., 220 NY249, 115 NE 715 [1917]). Even were the Court to disregard Pastore's affidavit to the extent that it conflicts with her prior sworn deposition testimony, plaintiffs' affidavits indicate that none of them gave permission to bury decedent before their family's return to the cemetery. Accordingly, defendants are not entitled to summary judgment dismissing plaintiffs' claim for violation of their right of sepulcher.
As to plaintiff's cause of action for NIED, a plaintiff may recover for emotional harm, even in the absence of physical injury, when the mental injury is "'a direct, rather than consequential, result of the breach' and when the claim possesses 'some guarantee of genuineness'" (Ornstein v New York City Health and Hosps. Corp., 10 N.Y.3d 1, 6, 862 N.Y.S.2d 1 [2008] [internal citations omitted], first quoting Kennedy v McKesson Co., 58 N.Y.2d 500, 506, 462 N.Y.S.2d 421 [1983], then quoting Ferrara v Galluchio, 5 N.Y.2d 16, 21. 176 N.Y.S.2d 996 [1958]; see Derago v Ko, 189 A.D.3d 1352, 134 N.Y.S.3d 801 [2d Dept 2020]; McDonagh v Carmel Cent. Sch. Dist., 170 A.D.3d 1161, 94 N.Y.S.3d 879 [2d Dept 2019]). For instance, claims involving the mishandling of a corpse possess some guarantee of genuineness (see Johnson v State, 37 N.Y.2d 378, 372 N.Y.S.2d 638 [1975]; Taggart v Costabile, 131 A.D.3d 243, 14 N.Y.S.3d 388 [2d Dept 2015]; Massaro v Charles J. O'Shea Funeral Home, 292 A.D.2d 349, 738 N.Y.S.2d 384 [2d Dept 2002]).
The funeral home defendants and the cemetery defendant, moving separately, also failed to establish their prima facie entitlement to summary judgment dismissing plaintiffs' claim for NIED against them (see Massaro v Charles J. O'Shea Funeral Home, supra', cf. Schultes v Kane, 50 A.D.3d 1277, 856 N.Y.S.2d 684 [3d Dept 2008]; Estate of LaMore v Sumner, 46 A.D.3d 1262, 848 N.Y.S.2d 754 [3d Dept 2007]; Stonecipher v Bossuot-Lundy Funeral Home, Inc., 238 A.D.2d 946, 661 N.Y.S.2d 143[4d Dept 1997]). Significantly, there are triable issues of fact as to whether defendants mishandled decedent's body by burying him before his family returned to the cemetery (cf. Schultes v Kane, supra-, Estate of LaMore v Sumner, supra; Stonecipher v Bossuot-Lundy Funeral Home, Inc., supra). Even assuming arguendo that the cemetery defendant's arguments regarding, in essence, the proximate cause of plaintiffs' alleged mental injuries, and the "genuineness" of them, properly were raised for the first time in its reply paper, the Court finds such arguments unavailing. That plaintiffs may have certain preexisting conditions, had prior medical treatment, or never sought medic: I treatment following decedent's funeral, while potentially relevant to the issue of damages, does not necessarily preclude their recovery in this action (see Massaro v Charles J. O'Shea Funeral Home, supra). Here, "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'" (id. at 351, quoting Johnson y State, supra at 382). Moreover, "extreme and outrageous conduct is not an essential element of a cause of action to recover damages for negligent infliction of emotional distress" (Taggart v Costabile, supra at 255). Thus, defendants are not entitled to summary judgment dismissing plaintiff s' claim for NIED against them.
With regard to plaintiffs' claims for TIED, "[t]he elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress; (3) causation; and (4) severe emotional distress" (Tsatskin v Kordonsky, 189 A.D.3d 1296, 1298, 138 N.Y.S.3d 641 [2d Dept 2020], quoting Klein v Metropolitan Child Servs., Inc., 100 A.D.3d 708, 710, 954 N.Y.S.2d 559 [2d Dept 2012]; see Brunache v MV Transp., 151 A.D.3d 1011, 59 N.Y.S.3d 37 [2d Dept 2017]). The conduct at issue must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious-, and utterly intolerable in a civilized community" (Murphy v American Home Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, quoting Restatement [Second] of Torts § 46, Comment d; see Matter of Leff v Our Lady of Mercy Academy, 150 A.D.3d 1239, 55 N.Y.S.3d 392 [2d Dept 2017]; Taggart v Costabile, supra). The standard for the element of outrageous conduct has been characterized as "rigorous, and difficult to satisfy" (Taggart v Costabile, supra at 249, quoting Prosser & Keeton, Torts § 12 at 61 ; see Howell v New York Post Co., 81 N.Y.2d 115, 596 N.Y.S.2d 350 [1993]; Scollar v City of New York, 160 A.D.3d 140, 74 N.Y.S.3d 173 ).
The funeral home defendant and the cemetery defendant, moving SE parately, established their prima facie entitlement dismissing plaintiffs1' claim for IIED against them. The conduct of defendants in this case, even if insensitive or negligent, was not "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" (Murphy v American Home Prods. Corp., supra at 303, quoting Restatement [Second] of Torts § 46, Comment d\ see Marilyn S. v Independent Group Home Living Program, Inc., Ti A.D.3d 895, 904 N.Y.S.2d 70 [2d Dept 2010]; see also Sarlo v Fairchild Sons, Inc., 256 A.D.2d 322, 681 N.Y.S.2d 555 [2d Dept 1998]). In opposition, plaintiffs failed to raise a triable issue of fact as to whether defendants' conduct rose to the level of outrageous necessary to si stain an claim for IIED (see generally Alvarez v Prospect Hosp., 68 N.Y.2d 320, N.Y.S.2d 923 [1986]). Accordingly, defendants are entitled to summary judgment dismissing plaintiffs' claim for IIED against them.
Punitive damages are intended to "punish the tortfeasor and to deter this wrongdoer and others similarly situated from indulging in the same conduct in the future" (Ross v Louise Wise Sers., Inc., 8 N.Y.3d 478, 489, 836 N.Y.S.2d 509 [2007); see Gershman v Ahmad, 156 A.D.3d 868, 67 N.Y.S.3d 663 [2d Dept 2017]; Chiara v Dernago, 128 A.D.3d 999, 11 N.Y.S.3d 96 [2d Dept 2015]). "Punitive damages are recoverable where the conduct in question evidences 'a high degree of moral culpability,' or 'the conduct is so: flagrant as to transcend mere carelessness,' or 'the conduct constitutes willful or wanton negligence or recklessness'" (Feldman v Knack, 170 A.D.3d 667, 670, 95 N.Y.S.3d 306 [2d Dept 2019]; quoting Morton v Brookhaven Memorial Hosp., 32 A.D.3d 381, 381, 820 N.Y.S.2d 294 [2d Dept 2006]; Frederic v City of New York, 117 A.D.3d 899, 985 N.Y.S.2d 914 [2d Dept 2014]; Brown v Maple3, LLC, 88 A.D.3d 224, 928 N.Y.S.2d 740 [2d Dept 2011]).
The cemetery defendant and the funeral home defendant, moving separately, also established their prima facie entitlement to summary judgment dismissing plaintiffs' claim for punitive damages against them. Defendants demonstrated, prima facie, that their conduct die not rise to the level of moral culpability necessary to warrant the imposition of punitive damages (see Diwson v YMCA of Long Is., 120 A.D.3d 748, 991 N.Y.S.2d 360 [2d Dept 2014]; Markowitz v Fein, 30 A.D.2d 515, 290 N.Y.S.2d 128 [1st Dept 1968]; cf. Gostkowski v Roman Catholic Church of Sacred Hearts if Jesus & Mary, 262 NY 320, 186 NE 798 [1933]), In opposition, plaintiffs failed to raise a triable issue of fact as to whether defendants' alleged conduct rose to such level (see Dawson v YMCA of Long Is., supra-, see generally Alvarez v Prospect Hosp., supra). Accordingly, plaintiffs' claim for IED against defendants is dismissed.
The Court turns to the balance of the funeral home defendant's cross motion, seeking summary judgment dismissing the cross claims against it. The funeral home defendant failed to establish its prima facie entitlement to summary judgment dismissing the cross claims against it. By its verified answer, the cemetery defendant interposes cross claims against the funeral home defendant for, inter alia, apportionment of liability, contribution, and indemnification. As set forth above, there has been no determination as to any party's liability with regard to plaintiffs' claims for violation of their right of sepulcher and NIED, and the funeral home defendant fails to specify its rationale for seeking dismissal of the cross claims against it. The Court cannot grant summary judgment on a rationale not urged by the funeral home defendant (see Crosbie v KBC Food Corp., 190 A.D.3d 684, 135 N.Y.S.3d 897[2d Dept 2021]; Romanelli v Jones, 179 A.D.3d 851, 117 N.Y.S.3d 90 [2d Dept 2020] Grucci v Grucci, 174 A.D.3d 790, 102 N.Y.S.3d 885 [2d Dept 2019]; Frank M. Flower &Sons v North Oyster Bay Baymen-s Assn., Inc., 150 A.D.3d 965, 55 N.Y.S.3d 139 [2d Dept 2017). In light of the foregoing, the branch of the funeral home defendant's cross motion for summary judgment dismissing the cross claims against it is denied, regardless of the sufficiency of the papers in opposition (see Winegrad v New York Univ Med, Ctr., supra).
Accordingly, the motion by plaintiffs is denied, and the motion by the cemetery defendant and the cross motion by the funeral home defendant are granted in part and denied in part.