Plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, New York County (Jane S. Solomon, J.), entered January 30, 2007, which denied their motion for a preliminary injunction and declared that they have no legal right to certain specimens.
The opinion of the court was delivered by: Saxe, J.P.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
David B. Saxe, J.P., Luis A. Gonzalez, John W. Sweeny, Jr., Dianne T. Renwick, Leland G. DeGrasse, JJ.
This appeal considers whether plaintiffs, as the administrators of their late son's estate, may obtain possession from defendant tissue bank of certain semen specimens deposited by their son before his death, or whether that relief is precluded either by his directive that the specimens be destroyed in the event of his death or by the terms of applicable New York State Department of Health regulations.
In 1997, Mark Speranza deposited a number of semen specimens in the facility of defendant Repro Lab, Inc., a tissue bank licensed by the State of New York. The specimens were frozen and stored in defendant's liquid nitrogen vaults. The record contains no information on Mark's reasons for doing so. However, the parties agree that Mark was about to undergo treatment for an illness, and was concerned about being able to conceive a child afterwards. As part of his agreement with Repro Lab, on July 30, 1997, Mark filled in and signed a form document entitled, "Ultimate Disposition of Specimens," which contained several options for the disposition of the specimens by the tissue bank in the event of Mark's death. One option on the form directs that the specimens be given the depositor's spouse, another directs that the samples be destroyed, and a third option, with the heading "Other," leaves a blank to be filled in. Mark checked off the provision stating that in the event of his death, "I authorize and instruct Repro Lab to destroy all semen vials in its possession." The document concludes with the statement that "[t]his agreement shall be binding on the parties and their respective assigns, heirs, executors and administrators."
Six months later, on January 28, 1998, Mark died.
Plaintiffs Mary and Antonio Speranza, Mark's parents, were named administrators of his estate, and they contacted Repro Lab about the specimens. Plaintiffs assert that they were then informed that Mark had deposited the specimens for his use only, in that the specimens were not screened as required for donation to a member of the public. However, the lab agreed to maintain the specimens if plaintiffs continued to pay the yearly fee. The president of Repro Lab, Awilda Grillo, states that Mary Speranza pleaded with her not to destroy the specimens until she could determine her legal options, and that she acceded to that request, as long as the storage fee continued to be paid. The Speranzas paid the annual fee each year.
Mark's parents then began to seek a surrogate mother to be artificially inseminated with those semen specimens, with the hope of producing a grandchild for them. In 2005, the Speranzas contacted Repro Lab to ascertain the procedure for obtaining the specimens and were informed that the lab could not turn over the specimens; it produced for the first time the document Mark had signed specifying that the specimens should be destroyed upon his death. However, the lab continued to be willing to maintain the specimens upon payment of the annual fee.
Plaintiffs, in their position as administrators of their son's estate, then commenced this action seeking a declaration that the estate is the rightful owner of the specimens. The complaint asserts that by accepting yearly payments from them after Mark's death, the lab breached and terminated its agreement with Mark, or waived or relinquished any obligation it had to destroy the specimens, and plaintiffs constructively became the rightful and proper owners of the specimens. Plaintiffs also moved for a preliminary injunction ordering the tissue bank to preserve the sperm specimens pending the outcome of this action.
In the order challenged here, the IAS court denied plaintiffs' motion for an injunction, and then, sua sponte, dismissed the action. As a preliminary matter, the court asserted that the contract between Mark and defendant could be reformed, in light of both Mark's desire to have a child and defendant's acceptance of storage fees from plaintiffs. Nevertheless, the court concluded that because the medical tests for disease required for donors of reproductive tissue by the Department of Public Health (10 NYCRR 52-8.6[g]) had not been performed on Mark and no longer could be conducted, it would violate the law and public policy to allow the sperm to be released to plaintiffs for their use.
Initially, plaintiffs challenge the propriety of the sua sponte issuance of a final judgment in this matter, contending that it was premature, since only a motion for a preliminary injunction was before the court. They emphasize that there has been no discovery, they question the validity of the proffered contract, and they assert that there are scientific issues to be considered at trial ...