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THERE ARE QUESTIONS OF FACT WHETHER THE CITY’S DELAY IN NOTIFYING THE NEXT OF KIN OF THE IDENTIFICATION OF DECEDENT’S BODY AND THE LOCATION OF DECEDENT’S REMAINS ENTITLES THE NEXT OF KIN TO DAMAGES PURSUANT TO THE COMMON-LAW RIGHT OF SEPULCHER (SECOND DEPT).

The Second Department determined there were questions of fact in this right of sepulcher action stemming from city’s delay in notifying decedent’s next of kin if the identification and location of decedent’s remains.

On June 27, 2003, the plaintiff reported to the police that his 16-year-old son (hereinafter the decedent) was missing, and the New York City Police Department (hereinafter NYPD) commenced a missing person investigation. The decedent’s body was found 10 days later on July 7, 2003. The Office of the Chief Medical Examiner (hereinafter OCME) conducted an autopsy, but the medical examiner incorrectly determined that the body belonged to a 25 to 30 year old Asian male. Therefore, the body was not identified as that of the decedent. Because the decedent’s body remained unidentified, it was buried in the City public cemetery known as “Potter’s Field” on Hart Island in the Bronx. …

In September or October 2009, the plaintiff and his daughter, the decedent’s sister, provided their DNA samples to the NYPD as part of the missing person investigation. On January 10, 2011, the OCME confirmed that the unidentified body buried in Potter’s Field was that of the decedent. … Approximately one month after the OCME confirmed the identification of the decedent’s body, on February 16, 2011, the NYPD notified the plaintiff of the identification, and further informed him that the decedent had drowned and that the body had been found on July 7, 2003. The next day, the plaintiff was informed by the OCME that the decedent had been buried in Potter’s Field, but he was not informed of the exact location of the burial until 2015. …

“The common-law right of sepulcher affords the deceased’s next of kin an absolute right to the immediate possession of a decedent’s body for preservation and burial . . ., and damages may be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent’s body” … .  … [W]hen a municipal defendant has all of the necessary identifying information, the obligation of informing the next of kin of the decedent’s death is a ministerial function that creates a special duty running to the decedent’s next of kin rather than to the public at large … .

… [T]here are triable issues of fact as to whether the delays in informing the plaintiff that the decedent had been identified and in informing the plaintiff of the location of the decedent’s burial interfered with the plaintiff’s right of sepulcher … . However, we note that triable issues of fact exist only with respect to the City’s delay in notifying the plaintiff about the identification and the delay in informing him of the location of the burial. Therefore, the plaintiff is not entitled to damages with respect to the delay from the time the decedent was first reported missing in 2003 until the identity of the decedent’s body was confirmed on January 10, 2011. Cansev v City of New York, 2020 NY Slip Op 04145, Second Dept 7-22-20

 

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