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ALTHOUGH DECEDENT’S BODY WAS DELIVERED TO THE WRONG FUNERAL HOME, PLAINTIFFS DID NOT DEMONSTRATE DEFENDANT INTERFERED WITH PLAINTIFFS’ RIGHT OF SEPULCHER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs did not demonstrate defendant interfered with plaintiffs’ right of sepulcher by releasing the decedent’s body to the wrong funeral home:

“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” … . “To establish a cause of action for interference with the right of sepulcher, [a] plaintiff must establish that: (1) plaintiff is the decedent’s next of kin; (2) plaintiff had a right to possession of the remains; (3) defendant interfered with plaintiff’s right to immediate possession of the decedent’s body; (4) the interference was unauthorized; (5) plaintiff was aware of the interference; and (6) the interference caused plaintiff mental anguish” … . …

…[T]the evidence establishes that Cleckley, who was then satisfying a residency to become a licensed funeral director, was directed by his superior to collect and transport the decedent’s body to the funeral home. The plaintiffs presented no evidence either that Cleckley was aware that the funeral home was not authorized to take possession of the decedent’s body or that he was negligent in failing to verify that his superior was authorized to direct him to collect and transport the decedent’s body. Thus, the plaintiffs failed to meet their prima facie burden to show that he wrongfully interfered with the plaintiffs’ right to immediate possession of the decedent’s body … . The plaintiffs likewise failed to demonstrate that Cleckley acted wrongfully or negligently such that he may be held liable for their emotional injuries … . Turner v Owens Funeral Home, Inc., 2020 NY Slip Op 07237, Second Dept 12-2-20

 

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