DURING THE FUNERAL PLAINTIFF (ALLEGEDLY) LEARNED DECEDENT’S BODY WAS NOT IN THE CASKET; THE LOSS OF SEPULCHER ACTION PROPERLY SURVIVED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department determined plaintiff’s loss of sepulcher action properly survived summary judgment. During the funeral plaintiff learned the casket was empty:

Viewing the evidence in the light most favorable to the plaintiff as the nonmoving party, during the funeral service and burial intended for the decedent, the plaintiff became aware that the decedent’s body was not in the casket and the decedent’s body was not located for some period of time. Accordingly, the appellants failed to establish, prima facie, that their alleged actions or inactions did not interfere with the plaintiff’s possession of the decedent’s body and her right to find “solace and comfort in the ritual of burial” … . Gutnick v Hebrew Free Burial Socy. for the Poor of the City of Brooklyn, 2021 NY Slip Op 05696, Second Dept 10-20-21