The following papers read on this motion:

Notice of Motion and Affidavits ...............................................X

Affirmation in Opposition .........................................................X

Reply Affirmation......................................................................X

The defendants move for an order pursuant to CPLR §3212 granting summary judgment to the defendants. The plaintiffs submit opposition. The defendants submit a reply affirmation.

The plaintiffs initiated this action against the defendants asserting that on or about April 3, 2007, the Medical Examiner of the County of Nassau performed an autopsy on the decedent without [*2]the consent from the Executrix of the estate, decedent's wife, Evelyn Freiman, (also referred to as "Freiman"), in violation of the decedent's, and the Executrix's, sacred and religious beliefs, and in breach of the statutory duty owed to the Executrix, Evelyn Freiman, under New York Public Health Law §4210, et. seq.

The defendants have demonstrated that on or about April 3, 2007, North Shore University Hospital contacted the Nassau County Medical Examiner's Office, ("MEO"), and notified MEO that the decedent was pronounced dead, the decedent's private physician was not willing to issue the death certificate, and that an autopsy was not to be performed as per the wishes of the decedent's family, as the decedent was Jewish. The MEO testified that he spoke with the decedent's wife, Freiman, and explained to her that there were concerns about medications that the decedent took that could have contributed to his death, and that they were going to do toxicology studies to determine if the medications he took contributed to his death. The defendants annex a copy of the "Statement of Opposition to Autopsy", whereby Freiman requested that the MEO forego an autopsy upon the remains of the decedent, citing Jewish religious beliefs, and did not object to the MEO "taking blood and/or other fluid samples for toxicologic and other analyses by syringe and needle, as long as no incision is made".

Section 4210-c of the Public Health Law provides, in pertinent part, that "no dissection or autopsy shall be performed over the objection of a surviving relative or friend of the deceased" when it is contrary to the religious beliefs of the decedent, in the absence of a compelling public necessity.

Here, the defendants have demonstrated that an autopsy was not performed by the defendants. The defendants have demonstrated that the MEO extracted blood and fluids by way of a needle, upon Freiman's consent. The defendants also refer to the 50-H transcript for Freiman, whereby she testified, in response to the inquiry of whether there was a claim that an autopsy was performed, "No, there wasn't an autopsy performed . . . it's against the Jewish Law . . ." In any event, the defendants have demonstrated that the MEO is entitled to a toxicology screening without Freiman's consent, in order to investigate and certify the cause of death. (New York County Law §671(1)(a)).

Additionally, the plaintiffs' assertion that Freiman was coerced into consenting to the authorization allowing the MEO to extract blood and other fluid samples for toxicologic analyses is unsubstantiated.

The defendants have made a prima facie showing of entitlement to summary judgment. The plaintiffs, in opposition, fail to raise a triable issue of fact to warrant denial of this motion.

The plaintiffs have failed to submit any admissible evidence whatsoever indicating that the defendantsperformed an autopsy of the decedent. Rather, the plaintiffs argue that the penetration of a needle and/or syringe into portions of the decedent's body, to obtain "specimen", such as blood, urine and vitreous fluid from the eye, falls within the meaning of an autopsy within the Public Health Law. However, the plaintiffs do not cite any authority to support such assertion.

The plaintiffs do refer to Judaism, and cite "A Guide to Jewish Religious Practice", 270 [*3](1979), I Klein, (hereinafter referred to as the "Guide"), to support plaintiffs' assertion that "Jewish Law teaches that the whole body should be buried, and that if parts have been removed, for examination or otherwise, they must be returned and buried with the rest of the body". While plaintiff's reliance on the Guide has no authoritative basis under this Court's jurisdiction, the defendants, by way of reply, contend that while an autopsy was not performed, the "Guide", (at p. 274-275), provides that an autopsy is permitted when required by law in order to determine the cause of death.

In light of the foregoing, the defendants' motion for summary judgment is granted, and the plaintiffs' complaint is dismissed.

E N T E R :

________________________________

J.S.C.

Dated: September 23, 2011