Nash v City of New York (2005 NY Slip Op 51430(U))

Nash v City of New York

2005 NY Slip Op 51430(U) [9 Misc 3d 126(A)]

Decided on September 9, 2005

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Theresa Nash and Marvin Nash, Plaintiffs-Appellants,

against

City of New York, THE NEW YORK CITY DEPARTMENT OF HEALTH, THE OFFICE OF THE CHIEF MEDICAL EXAMINER FOR THE CITY OF NEW YORK, NEW YORK CITY HEALTH AND HOSPITALS CORPORATION AND KINGS COUNTY HOSPITAL CENTER MORGUE, Defendants-Respondents.

Plaintiffs appeal from an order of the Civil Court, New York County, entered October 24, 2003 (Eileen N. Nadelson, J.) which granted defendants' motion to

dismiss the complaint at the close of plaintiffs' case pursuant to CPLR 4401. Plaintiffs also appeal from two orders of the same court and Judge, dated October 7, 2003, which granted defendants' motions to exclude from evidence an inter-agency memorandum as privileged and to preclude plaintiffs' psychological expert from testifying at trial.
PER CURIAM:

Orders entered October 7, 2003 and October 24, 2003 (Eileen N. Nadelson, J.) [*2]affirmed, with $10 costs.

The trial court properly granted defendants' motion for judgment as a matter of law after the close of plaintiffs' case since there was no rational process upon which the jury could have found in favor of plaintiffs (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]). Plaintiffs sought damages for emotional distress arising from the City's purportedly negligent missing person investigation for their deceased adult son, a Connecticut resident reported missing in early November 1997. Decedent's unidentified body was found in the water near Pier 5 in Brooklyn within two weeks of his disappearance. Decedent was not identified until approximately 11 months later, apparently as a result of a computer database entry error.

The trial court properly found that defendants' missing person investigation was a discretionary, not a ministerial task (see Lauer v City of New York, 95 NY2d 95 [2000]; Estate of Scheuer v City of New York, 10 AD3d 272 [2004]) and that the municipal defendants did not owe plaintiffs a duty born of a special relationship (see Pelaez v Seide, 2 NY3d 186 [2004]). Additionally, plaintiffs' evidence did not establish that defendants interfered with plaintiffs' common law right to possession of their deceased son's body (see Rekemeyer v Cerone, 252 AD2d 22, 24 [1999].

We have considered plaintiffs' evidentiary claims and find them lacking in merit.

This constitutes the decision and order of the Court.
Decision Date: September 09, 2005