New York Appellate Division Second Clarifies the Right of Sepulcher in James v. Office of the Chief Medical Examiner

In James v. Office of the Chief Medical Examiner (2025), the Appellate Division, Second Department, addressed whether the City’s handling of a decedent’s remains violated the common-law right of sepulcher. The plaintiff alleged that OCME’s delay in notification and subsequent burial arrangements interfered with her legal rights. The court disagreed, holding that because the next of kin was notified, given the option to make burial arrangements, and ultimately chose to have the City inter the decedent at Hart’s Island, there was no unlawful interference.

Key Point: The decision underscores the distinction between the act of burial and the legal right of sepulcher. Burial is the outcome; the right of sepulcher protects the next of kin’s immediate possession and control of the body. Only when that right is unlawfully interfered with does a claim arise.

Full Text of James v. Office of the Chief Medical Examiner

Decided on August 20, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
VALERIE BRATHWAITE NELSON
BARRY E. WARHIT
LAURENCE L. LOVE, JJ.

2024-05779
(Index No. 702807/20)

Muriel Goode-Trufant, Corporation Counsel, New York, NY (Jamison Davies and Chloé K. Moon of counsel), for appellants.

Harris Keenan & Goldfarb PLLC, New York, NY (Jason Steinberg and Valentine Wallace of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for violation of the common-law right of sepulcher, the defendants appeal from an order of the Supreme Court, Queens County (Chereé A. Buggs, J.), dated February 27, 2024. The order denied that branch of the defendants' motion which was for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and that branch of the defendants' motion which was for summary judgment dismissing the complaint is granted.

The plaintiff's decedent, James Everett, died on January 15, 2019. On January 27, 2019, the decedent's remains were transferred to the Office of the Chief Medical Examiner (hereinafter OCME). On May 10, 2019, an OCME investigator identified the plaintiff as the decedent's next-of-kin and informed the plaintiff by telephone of the decedent's death. OCME informed the plaintiff that the decedent's remains could be released to her via a funeral home of her choice or, alternatively, buried by the City of New York in the City's public cemetery known as "Potter's Field." On May 24, 2019, the plaintiff requested a burial by the City. The decedent's remains were buried in Potter's Field on Hart's Island on June 13, 2019.

In February 2020, the plaintiff commenced this action, inter alia, to recover damages for violation of the common-law right of sepulcher. The defendants moved, among other things, for summary judgment dismissing the complaint. In opposition, the plaintiff contended, inter alia, that she was not informed of the decedent's burial, nor was she informed of the precise location of the decedent's burial plot within Potter's Field until nearly one year after the burial. The plaintiff argued that the defendants' delay in informing her of the time and location of the decedent's burial violated her common-law right of sepulcher. By order dated February 27, 2024, the Supreme Court denied that branch of the defendants' motion which was for summary judgment dismissing the complaint. The defendants appeal.

"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" (Shipley v City of New York, 25 NY3d 645, 653 [internal quotation marks [*2]omitted]; see Marinelli v New York Methodist Hosp., 205 AD3d 710, 711). "'Interference can arise either by unauthorized autopsy or by disposing of the remains inadvertently, or . . . by failure to notify the next of kin of the death'" (Cansev v City of New York, 185 AD3d 894, 895, quoting Melfi v Mount Sinai Hosp., 64 AD3d 26, 39). "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" (Turner v Owens Funeral Home, Inc., 189 AD3d 911, 912-913 [internal quotation marks omitted]; see Gutnick v Hebrew Free Burial Socy. for the Poor of the City of Brooklyn, 198 AD3d 880, 882). "Because the right of sepulcher is premised on the next of kin's right to possess the body for preservation and burial (or other proper disposition), and is geared toward affording the next of kin solace and comfort in the ritual of burying or otherwise properly disposing of the body, it is the act of depriving the next of kin of the body . . . that constitutes a violation of the right of sepulcher" (Shipley v City of New York, 25 NY3d at 653-654).

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that their alleged actions or inactions did not interfere with the plaintiff's right to immediate possession of the decedent's remains (see id.; cf. Cansev v City of New York, 185 AD3d 894, 896). In opposition, the plaintiff failed to raise a triable issue of fact.

The parties' remaining contentions either are without merit or need not be reached in light of our determination.

Accordingly, the Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing the complaint.

DILLON, J.P., BRATHWAITE NELSON, WARHIT and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

Source: https://www.nycourts.gov/reporter/3dseries/2025/2025_04711.htm