Supreme Court, Bronx County, December 22, 2021

Rothstein Law PLLC, Brookfield, Connecticut (Eric E. Rothstein of counsel), for plaintiffs.

Fullerton Beck, LLP, White Plains (Heather J. Julien of counsel), for defendant.

The decision/order on this motion for summary judgment is as follows:

Plaintiffs move pursuant to CPLR 3212 for partial summary judgment on the issue of [*2]liability on their first cause of action for loss of sepulcher and their second cause of action for violation of Public Health Law § 4201 and for dismissal of defendant's second, fourth, sixth and seventh affirmative defenses pursuant to CPLR 3211 (b) and 3212. Tracy Reese is a registered domestic partner of decedent, Charlene Wimbush, and the remaining plaintiffs, Daran Porter, Cherry Porter, Stevie Porter and Lisa Porter, are siblings.

Plaintiffs Tracy Reese (Reese) and Daran Porter (D. Porter) aver that they spoke to nonparty Isiah Owens (Owens), the president and owner of defendant Owens Funeral Home, Inc., about decedent. Both Reese and D. Porter aver that they did not authorize defendant to take possession of the body of decedent, nor did they authorize defendant to embalm her. After decedent was embalmed by defendant, another undertaker, Unity Funeral Chapel, retrieved decedent's body from defendant.

In contrast, Owens avers that "Mr. Reese verbally authorized the retrieval of Ms. Wimbush's remains,"^[FN1] and avers that "Mr. Reese requested embalming and funeral arrangements and burial-services for the decedent."^[FN2] "At his request, Mr. Reese viewed the remains of the decedent after we had retrieved the body, and he did not have any complaints at the time."^[FN3]

Plaintiffs argue that summary judgment should be granted to them pursuant to Public Health Law § 4201 (7), arguing that defendant was required to have a written contract before taking control of the body. The pertinent part of Public Health Law § 4201 (7) states as follows:

"No . . . funeral director, undertaker, embalmer or funeral firm shall be held liable for actions taken reasonably and in good faith to carry out the directions{**74 Misc 3d at 942} of a person who represents that he or she is entitled to control of the disposition of remains, provided that such action is taken only after requesting and receiving written statement that such person:

"(a) is the designated agent of the decedent designated in a will or written instrument executed pursuant to this section; or

"(b) that he or she has no knowledge that the decedent executed a written instrument pursuant to this section or a will containing directions for the disposition of his or her remains and that such person is the person having priority under subdivision two of this section."

" 'It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature' (Patrolmen's Benevolent Assn. v City of New York, 41 NY2d 205, 208; see also, Longines-Wittnauer v Barnes & Reinecke, 15 NY2d 443, 453). As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning [*3]thereof. As we have stated:

" 'In construing statutes, it is a well-established rule that resort must be had to the natural signification of the words employed, and if they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning' (Tompkins v Hunter, 149 NY 117, 122-123; see also, Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98)." (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998].)

It is clearly stated in Public Health Law § 4201 (7) that if a funeral home has written authorization to follow the directions of an authorized person regarding the "disposition of remains," and carries out those directions "reasonably and in good faith," then the funeral home cannot be held liable. However, what the Public Health Law does not say is that in the absence of written authorization, a funeral home is liable for handling a decedent.

Owens avers that "[w]hile the document was not signed by Mr. Reese, it is customary for customers such as Mr. Reese, to{**74 Misc 3d at 943} provide verbal authority at the time of consultation and to return later to execute the documents at the time of payment of the funeral services fees."^[FN4] This averment of Owens' is unopposed by any evidence that funeral home practice is any different and is an issue of fact for factual determination by a finder of fact. Furthermore, whether defendant received plaintiffs' authorization to retrieve decedent's body and embalm it is a factual issue that cannot be resolved on a summary judgment motion.

On a summary judgment motion the "court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility." (Dauman Displays v Masturzo, 168 AD2d 204, 205 [1st Dept 1990].) "It is settled that the function of a court on a motion for summary judgment is issue finding, not issue determination." (Clearwater Realty Co. v Hernandez, 256 AD2d 100, 103 [1st Dept 1998].)

Reese avers that "[a]fter picking up Charlene's remains, Unity Funeral Chapel sent me a post-embalming photograph of Charlene and based on how she looked, the next-of-kin decided we could not have an open casket funeral."^[FN5] Another issue of fact is whether defendant is liable for the decedent's body's condition that warranted a closed casket as Owens avers as follows:

"The Funeral Home embalmed the remains of the decedent. The remains were properly embalmed based on accepted standards and practices in the industry. Any physical changes of the decedent's remains were due to the natural changes of the remains, between the date of death, February 10, 2021 and February 19, 2021, the date upon which the Funeral Home took possession of the remains from the Department of Health and Mental Hygiene Office of Chief Medical Examiner, and not due to improper embalming."^[FN6]

Plaintiffs cite to Turner v Owens Funeral Home, Inc. (2013 NY Slip Op 34261[U] [Sup Ct, Bronx County, Nov. [*4]22, 2013, Douglas, J., index No. 20229/2012E]) arguing that summary judgment was granted to plaintiffs on the same facts.^[FN7] However, the Turner decision awards summary judgment to plaintiffs on the following grounds:{**74 Misc 3d at 944}

"Owens has failed to raise any triable issue of fact with respect to its improper possession of the decedent's body. Owens concedes that it did take possession of the body, but does not put forth any evidence or testimony to rebut Turner's contention that Owens was never authorized to retrieve the body and embalm it. Such evidence would be in Owens's possession. Owens has not demonstrated what further discovery is necessary to defend on this claim. Accordingly, it is undisputed that Owens possessed the body and embalmed it without permission."^[FN8]

In contrast to Turner, the defendant herein submitted Owens' affidavit as evidence that that defendant had authorization to possess and embalm decedent's remains.

Plaintiffs argue for dismissal of defendant's affirmative defenses on grounds of unauthorized taking of decedent's remains and embalming them without permission, and for defendant's failure to comply with Public Health Law § 4201. Plaintiffs have not established these grounds for dismissal of defendant's affirmative defenses as a matter of law.

Accordingly, plaintiffs' motion is denied.