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Li v. New York Hospital Medical Center of Queens

Supreme Court of New York, Second Department

February 22, 2017

Zhuangzi Li, as administrator of the estate of Linru Fan, et al., respondents,
v.
New York Hospital Medical Center of Queens, appellant, et al., defendant. Index No. 22169/10

          Farley, Holohan & Glockner, LLP (Mauro Lilling Naparty LLP, Woodbury, NY [Matthew W. Naparty and Seth M. Weinberg], of counsel), for appellant.

          Steven E. North, P.C., New York, NY (Laurence M. Deutsch and Annette Hasapidis of counsel), for respondents.

          REINALDO E. RIVERA, J.P. SHERI S. ROMAN SYLVIA O. HINDS-RADIX HECTOR D. LASALLE VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         In an action, inter alia, to recover damages for violation of the common-law right of sepulcher, negligent infliction of emotional distress, and fraud, the defendant New York Hospital Medical Center of Queens appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (O'Donoghue, J.), dated December 12, 2012, as granted the plaintiffs' motion for summary judgment on the issue of liability on the first cause of action insofar as asserted against it and denied that branch of its cross motion which was for summary judgment dismissing the first cause of action insofar as asserted against it. Justice Rivera has been substituted for former Justice Skelos (see 22 NYCRR 670.1[c]).

         ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting the plaintiffs' motion for summary judgment on the issue of liability on the first cause of action insofar as asserted against the appellant, and substituting therefor a provision denying the motion, and (2) by deleting the provision thereof denying that branch of the appellant's cross motion which was for summary judgment dismissing so much of the first cause of action, insofar as asserted against it, as alleged failure to timely perform an autopsy, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

         Linru Fan and Zhuang Zi Li (hereinafter together the plaintiffs) were the parents of a fetus which genetic testing indicated was a female fetus with a genetic defect incompatible with life. Linru Fan elected to terminate the pregnancy. The procedure was performed at the defendant New York Hospital Medical Center of Queens (hereinafter the Hospital). On the day of the procedure, the Hospital presented Linru Fan with a form entitled "Consent for Burial Form, " which provided: "I hereby request and authorize that New York Hospital Queens bury, or arrange for the burial of the baby, " and gave her the option of designating either a private undertaker, "the Department of Hospitals, New York City, " or the St. Vincent de Paul Society to perform the burial. Linru Fan selected the option of a burial by "the Department of Hospitals, New York City."

         After the procedure, a nurse allegedly told the plaintiffs that the fetus was male, contrary to the original determination after genetic testing that the fetus was female. The plaintiffs requested an autopsy to confirm the accuracy of the genetic testing. However, the fetus was misplaced, delaying the autopsy for over two months. Eventually, the fetal remains were found at the bottom of a large bin with limbs and other body parts. Ultimately, the autopsy confirmed that the fetus was, in fact, female. The remains were then given to the plaintiffs, who arranged for their disposal.

         The plaintiffs commenced the instant action alleging, inter alia, (1) violation of the common-law right of sepulcher, in that the Hospital mishandled the fetal remains and delayed in performing an autopsy, (2) negligent infliction of emotional distress, and (3) fraud. The plaintiffs moved for summary judgment on the issue of liability against the Hospital on the first cause of action, which alleged violation of the common-law right of sepulcher, in that the appellant mishandled the fetal remains and delayed in performing an autopsy. The Hospital cross-moved for summary judgment dismissing "all claims" against it. The Supreme Court granted the plaintiffs' motion, and denied that branch of the Hospital's cross motion which was for summary judgment dismissing the first cause of action insofar as asserted against it. The Hospital appeals. During the pendency of this appeal, Linru Fan died, and Zhuangzi Li, as administrator of her estate, was substituted for her on this appeal.

         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... damages will be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent's body" (Melfi v Mount Sinai Hosp., 64 A.D.3d 26, 31; see Johnson v State of New York, 37 N.Y.2d 378, 382; Darcy v Presbyterian Hosp. in City of N.Y., 202 NY 259, 262; Henderson v Kingsbrook Jewish Med. Ctr., 91 A.D.3d 720). The right of sepulcher applies to stillborn infants (see Emeagwali v Brooklyn Hosp. Ctr., 60 A.D.3d 891). Here, although the plaintiffs relinquished their right to prompt possession of the fetal remains when Linru Fan executed a written consent form authorizing the Hospital to arrange for the burial, the plaintiffs also alleged that the Hospital violated their right to sepulcher by mishandling the fetal remains (see Massaro v O'Shea Funeral Home, 292 A.D.2d 349; see also Gostlowski v Roman Catholic Church, 262 NY 320). However, damages attributable to emotional distress caused by the failure to timely perform an autopsy on the fetus are not recoverable (see Slaughter v St. Anthony Community Hosp., 206 A.D.2d 513).

         The Hospital argues that a cause of action to recover damages for mishandling a body only applies to a fetus where the attending physician estimates that the fetus has completed 20 weeks of gestation because, the Hospital contends, a fetus of fewer than 20 weeks of gestation is not a "body" (see 10 NYCRR 405.9[f][9]). Even assuming that such a cause of action lies only with respect to a fetus that has completed at least 20 weeks of gestation, and that the fetus here had not completed 20 weeks of gestation, under the particular facts of the instant case, the Hospital created a right of sepulcher where one might not otherwise exist by affirmatively representing to the plaintiffs that the fetus would receive a burial. The form provided to them relating to the disposition of the fetal remains indicated that the Hospital would bury or arrange for the burial of the fetus. The plaintiffs testified at their respective depositions that they believed that the fetus would be buried in a cemetery. Since the Hospital created a reasonable expectation that the fetus would receive a burial, it was not free to mishandle the fetal remains (see Finley v Atlantic Transp. Co., Ltd., 220 NY 249; see also Massaro v O'Shea Funeral Home, 292 A.D.2d 349; Gostkowski v Roman Catholic Church of Sacred Hearts of Jesus & Mary, 237 A.D. 640, affd 262 NY 320). However, questions of fact exist as to whether the Hospital, in fact, acted negligently with respect to its handling of the fetal remains as related to burial.

         Since the Supreme Court declined to address that branch of the Hospital's cross motion which was for summary judgment dismissing the third cause of action, which alleged fraud, insofar as asserted against it, the Hospital now asks this Court to search the record and award it summary judgment dismissing that cause of action insofar as asserted against it. In light of the plaintiffs' representation in their brief that they consider that cause of action "withdrawn, " there is no need for a disposition of the merits of that cause of action. The withdrawal can be effected in the Supreme Court in accordance with the plaintiffs' representation.

         The parties' remaining contentions either are not properly before this Court, are without merit, or need not be addressed in light of our determination.

         Accordingly, the Supreme Court should have denied the plaintiffs' motion for summary judgment on the issue of liability on the first cause of action insofar as asserted against the Hospital, and should have granted that branch of the Hospital's cross motion which was for summary judgment dismissing so much of that cause ...


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