Generally speaking, the “right of sepulcher” means the right to choose and control the burial, cremation, or other final disposition of a dead human body. Under New York Law, the next of kin of a decedent can commence a lawsuit for a violation of his or her right of sepulcher when 1) a next of kin’s right to immediate possession of a decedent’s body is interfered with, and 2) the interference causes mental anguish. New York courts have held that interference with a next of kin’s right of sepulcher can arise under the following circumstances: 1) unauthorized autopsy; 2) inadvertent disposition of remains; and 3) failure to notify next of kin of the death.
A prerequisite to commencing a lawsuit against a New York CIty Hospital, including Mount Sinai, is that a Notice of Claim must be filed within 90 days of the alleged negligence or malpractice. A recent interesting decision from the Appellate Division, First Department, Melfi v. Mount Sinai Hospital, addresses when this unique cause of action accrues for Notice of Claim and Statute of Limitations purposes. A short recitation of the facts of the case is below:
Leonard Melfi, a well-known playwright, died at Mount Sinai Hospital on October 28, 2001 from congestive heart failure. His body was not claimed from the hospital’s morgue for 30 days, and on November 28, 2001, the body was provided to Nassau County Community College in order for embalming students to practice their future trade. The body was then buried at Potter’s Field, a city cemetery, with 150 other unclaimed bodies.
Melfi’s family did not learn of his death until February 2, 2002. His body was exhumed and re-buried on April 18, 2002 in Binghampton, New York.
Defense attorneys for the City argued that Melfi’s Notice of Claim, filed on May 2, 2002, was late and the sepulcher case should be dismissed, since the Notice was not filed until 133 days after the body was transferred to Nassau Community College.
The Second Department disagreed holding that the right of sepulcher does not accrue, and therefore the the claim does not become actionable, until the plaintiff experiences an emotional injury. Since it is impossible for a next of kin to experience an emotional injury before learning of a loved one’s death, the clock for Notice of Claim and Statute of Limitations purposes in loss of sepulcher cases, does not begin to run until the next of kin attains knowledge that the decedent has died.
The New York Attorneys At Gallivan & Gallivan represent individuals in loss of sepulcher cases. If you have been deprived of your right to the immediate possession of a loved one’s body or loved one’s body has been mishandled, please contact us for a free consultation to discuss your rights.