Mt. Sinai Hospital and New York City Health and Hospitals Corporation appeal from an order of the Supreme Court, New York County (Joan B. Carey, J.), entered May 5, 2008, which, to the extent appealed from as limited by the briefs, denied the motion by defendant Health and Hospitals Corporation to dismiss the cause of action for loss of sepulcher and the motion by defendant Mount Sinai to strike plaintiff's demands for punitive damages related to the claims of malpractice and loss of sepulcher, and granted plaintiff's motion to amend the complaint to plead a cause of action for gross negligence and related punitive damages against Mount Sinai in connection with the malpractice claim.
The opinion of the court was delivered by: Catterson, J.
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.
Richard T. Andrias, J.P., David B. Saxe, John W. Sweeny, Jr., James M. Catterson, Karla Moskowitz, JJ.
The plaintiff, John Melfi, brings this action for, inter alia, loss of sepulcher after his brother's body was sent to a community college for embalming practice and then for burial in a mass grave in Potter's Field.
On October 28, 2001, playwright Leonard Melfi, best known for his one-act play Birdbath and contributions to the Broadway hit Oh! Calcutta!, collapsed in his room at the Narragansett Hotel, a welfare hotel, on the upper west side of Manhattan. The ambulance call report prepared by EMS personnel contained a preliminary diagnosis of respiratory distress, and identifying information including Mr. Melfi's address, date of birth, and social security number. The report also listed his friend Joann Tedesco as next of kin together with her phone number.*fn1
Mr. Melfi was fitted with an oxygen mask and taken by ambulance to Mt. Sinai Hospital where a staff member in the emergency room prepared a patient registration form containing the identifying information and the contact information for Joann Tedesco. A triage assessment was performed in the emergency room but the record does not show that any treatment was administered. Mr. Melfi was next assessed by attending physician John Joseph Bruns, Jr., M.D., who made a preliminary diagnosis of congestive heart failure and atrial fibrillation.
Subsequently, at trial, Dr. Bruns testified to administering a drug to reduce the heart rate and conceded that additional treatment would typically be administered in light of Mr. Melfi's critical symptoms. However the record does not reflect any additional treatment. Further, although Dr. Bruns testified that Mr. Melfi received nursing care, no documentation was generated to that effect either. The only documentation that showed any treatment was a billing sheet indicating that pulse oximetry, catheter placement and an electrocardiogram were performed. Mr. Melfi's condition quickly deteriorated, and, despite the fact that he stopped breathing and became unresponsive, there is nothing in the medical records to indicate that any life-saving treatment was initiated.
Mr. Melfi died at 6:20 p.m. that evening. The death certificate prepared by the hospital included Mr. Melfi's name and age, but omitted any additional identifying information such as his address, social security number, and Joann Tedesco's contact information, which had been listed on the EMS Report and in the Patient Registration Form. Although Dr. Bruns testified that he made two phone calls in an effort to reach Ms. Tedesco, these attempts are also undocumented in the records.
Mr. Melfi's body remained in Mt. Sinai Hospital's morgue for 30 days. On November 21, 2001, a death certificate was filed with the NYC Department of Health. Shortly thereafter a burial permit was issued, and on November 28, 2001, Mr. Melfi's body was transferred to the City morgue at Bellevue Hospital.
The record is silent as to any effort made to identify or locate the next of kin during the period the body was at the City morgue. Mr. Melfi's body was subsequently sent for embalming practice by students of the Nassau County Community College's Mortuary Science Department before it was finally transferred on December 20, 2001 to the City cemetery on Hart Island also known as "Potter's Field."*fn2 Mr. Melfi's body was interred in a mass grave with 150 unclaimed bodies.
Two months after Mr. Melfi's burial, on or about February 2, 2002, his niece, Dawn Kosilla, a New York State Trooper, was contacted by the manager of the Narragansett Hotel who informed her of her uncle's death. Ms. Kosilla, who had visited her uncle approximately a week before his death, notified her father, the decedent's brother, John Melfi. The family then contacted Ms. Tedesco who advised them that she had not been informed about Leonard Melfi's death.
John Melfi immediately started making inquiries at Mt. Sinai Hospital and the City morgue in an effort to locate his brother's body. After several unsuccessful encounters with employees of the hospital and the morgue, he enlisted the assistance of the local media and shortly thereafter, in mid-February, learned that his brother had been buried in Potter's Field.
John Melfi arranged for the exhumation of the body on April 10, 2002 and had it transported to a Manhattan funeral home where he identified his brother's naked corpse which was visibly scarred with incisions and holes made by the students who had practiced on him. Leonard Melfi was finally laid to rest in the family burial plot in his hometown of Binghamton, New York on April 18, 2002.
On or about May 2, 2002, John Melfi served a notice of claim on the defendants. The notice of claim stated in the entry required for "the time when, the place where, and the manner in which the claim arose," that due to Mt. Sinai's negligence and medical malpractice, Mr. Melfi expired at the hospital on October 28, 2001. The notice of claim further stated that "no notification was made to anyone regarding Mr. Melfi's death," and that prior to his burial on December 20, 2001, "his body was illegally embalmment (sic) without the permission of the next of kin."
On October 21, 2002, the plaintiff commenced this action against the City defendants and Mt. Sinai asserting causes of action for medical malpractice, wrongful death, loss of sepulcher, fraudulent concealment and punitive damages. Following discovery, defendant New York City Health and Hospitals Corporation, sued here as Bellevue Hospital and Health and Hospitals Corporation (hereinafter referred to as "HHC") moved for dismissal of the action as time-barred by the 90-day requirement for service of notice of claim. The defendant Mt. Sinai Hospital moved to dismiss the claims for punitive damages and fraudulent concealment. The plaintiff moved for leave to amend his complaint to add claims for negligent and intentional infliction of emotional distress.
By decision and order dated April 30, 2008, the court denied HHC's motion for dismissal. The court reasoned that, "[a]s the defendant's conduct is not immediately apparent to a plaintiff, the time in which to file a notice of claim in such a case should begin to run only when the wrongdoing has been discovered, such as in a medical malpractice case in which a foreign object is discovered in the body of a patient." The court also denied Mt. Sinai's motion to dismiss the punitive damages claim; it dismissed the plaintiff's fraudulent concealment claim.
The plaintiff's motion for leave to amend was granted to the extent of permitting him to assert a cause of action for gross negligence in the claim against Mt. Sinai and to seek punitive damages in connection therewith; leave to amend was not granted to add claims of negligent and intentional infliction of emotional distress as these were determined by the court to be duplicative of the loss of sepulcher claim. All claims against the New York City Police Department, Department of Corrections and Department of Health were dismissed as the court determined that they had no duty to identify Mr. Melfi or locate his next of kin.
For the reasons set forth below, we modify and dismiss the claim for punitive damages on the loss of sepulcher cause of action against Mt. Sinai, and affirm Supreme Court's determination to deny dismissal of the action against HHC on the grounds that the notice of claim for loss of sepulcher was untimely filed.
It is well established that the common-law right of sepulcher 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. Darcy v. Presbyterian Hosp. in City of N.Y., 202 N.Y. 259, 95 N.E. 695 (1911); Estate of Scheuer v. City of New York, 10 AD3d 272, 274-275, 780 N.Y.S.2d 597, 600 (1st Dept. 2004), lv. denied, 6 NY3d 708, 813 N.Y.S.2d 44, 846 N.E.2d 475 (2006); Booth ...