Summary
In Tinney v City of New York (94 AD3d 417 [1st Dept 2012]), the Court held that where the City defendants "had all necessary identifying documents," the failure to timely inform the next of kin of their father's death was a breach of a ministerial function, not a discretionary act.
Summary of this case from Reid v. City of New YorkOpinion
2012-04-3
Kyle TINNEY, et al., Plaintiffs–Respondents–Appellants, v. The CITY OF NEW YORK, et al., Defendants–Appellants–Respondents.
Michael A. Cardozo, Corporation Counsel, New York (Edward F.X. Hart of counsel), for appellants-respondents. Belovin & Franzblau, Bronx (David A. Karlin of counsel), for respondents-appellants.
Michael A. Cardozo, Corporation Counsel, New York (Edward F.X. Hart of counsel), for appellants-respondents. Belovin & Franzblau, Bronx (David A. Karlin of counsel), for respondents-appellants.
FRIEDMAN, J.P., DeGRASSE, FREEDMAN, ABDUS–SALAAM, JJ.
Order, Supreme Court, Bronx County (Dominic R. Massaro, J.), entered December 28, 2009, which denied the motion by defendants The City of New York, New York City Police Department, New York City Department of Health, New York City Medical Examiner's Office of the Department of Health (collectively, the City) for summary judgment dismissing the complaint, and denied the cross motion by plaintiffs for summary judgment, unanimously modified, on the law, to grant plaintiffs' motion for summary judgment on the issue of liability, and remand the case to the IAS court for further proceedings, and otherwise affirmed, without costs.
Plaintiffs' action is not time-barred by General Municipal Law § 50–i(1)(c). As we have previously held, a cause of action for the right of sepulcher “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” ( Melfi v. Mount Sinai Hosp., 64 A.D.3d 26, 32, 877 N.Y.S.2d 300 [2009] ). The next of kin's mental anguish cannot arise until he or she became aware of defendant's actions—in this case, in February 2006 when plaintiffs first discovered the facts underlying this action including learning for the first time that their father was dead ( id.; see also Johnson v. State of New York, 37 N.Y.2d 378, 372 N.Y.S.2d 638, 334 N.E.2d 590 [1975] ).
In addition, under the circumstances presented in this case, where defendant had all the necessary identifying documents, the act claimed to be omitted is a ministerial, as opposed to a discretionary, function. Therefore, the City is not shielded from liability on the ground that the allegedly tortious acts were discretionary ( see McLean v. City of New York, 12 N.Y.3d 194, 202, 878 N.Y.S.2d 238, 905 N.E.2d 1167 [2009]; see also Garrett v. Holiday Inns, 58 N.Y.2d 253, 263, 460 N.Y.S.2d 774, 447 N.E.2d 717 [1983]; cf. Valdez v. City of New York, 18 N.Y.3d 69, 936 N.Y.S.2d 587, 960 N.E.2d 356 [2011] ). We further find that the City's omissions give rise in this action to liability for loss of the right to sepulcher ( Shipley v. City of New York, 80 A.D.3d 171, 908 N.Y.S.2d 425 [2010] ). Moreover, no further factual development would shed any light on this case, at least not with respect to liability, and therefore, plaintiffs' motion for summary judgment should have been granted on the issue of liability.