Floyd W. HENDERSON, et al., appellants, v. KINGSBROOK JEWISH MEDICAL CENTER, respondent.
In an action, inter alia, to recover damages for negligence, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated October 7, 2010, as granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging a violation of the plaintiffs' right of sepulcher.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging a violation of the plaintiffs' right of sepulcher is denied.
The plaintiffs are the children of Leroy Henderson (hereinafter the decedent), who died at the Kingsbrook Jewish Medical Center (hereinafter the defendant), on March 6, 2010. The complaint alleges, inter alia, that the defendant failed to release the decedent's body to the funeral home the plaintiffs chose until March 9, 2010, despite their inquiries and efforts to obtain an earlier release. The defendant moved, among other things, to dismiss the complaint for failure to state a cause of action (see CPLR 3211[a] ). The Supreme Court granted the motion without explanation. The plaintiffs appeal from so much of the order as granted that branch of the motion which was to dismiss the cause of action alleging a violation of the plaintiffs' right of sepulcher. We reverse the order insofar as appealed from.
As recently stated by this Court in the case of Shipley v. City of New York, 80 A.D.3d 171, 177, 908 N.Y.S.2d 425:
“New York's jurisprudence has long recognized the interest of a decedent's next of kin in the remains of their decedent, and infringement upon that interest repeatedly has been acknowledged to be actionable (see Johnson v. State of New York, 37 N.Y.2d 378, 382, 372 N.Y.S.2d 638, 334 N.E.2d 590 ; Darcy v. Presbyterian Hosp. in City of N.Y., 202 N.Y. 259, 262–265, 95 N.E. 695 ; Wainwright v. New York City Health & Hosps. Corp., 61 A.D.3d 851, 852, 877 N.Y.S.2d 203 ; Estate of LaMore v. Sumner, 46 A.D.3d 1262, 1264, 848 N.Y.S.2d 754 ; Prescott v. Turner, 15 A.D.3d 557, 558, 792 N.Y.S.2d 80  ). As frequently formulated in case law, ‘the common-law right of sepulcher gives the next of kin the absolute right to the immediate possession of a decedent's body for preservation and burial, and ․ damages will be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent's body’ (Melfi v. Mount Sinai Hosp., 64 A.D.3d 26, 31, 877 N.Y.S.2d 300 ; see Darcy v. Presbyterian Hosp. in City of N.Y., 202 N.Y. at 262, 95 N.E. 695; Nesbit v. Turner, 15 A.D.3d 552, 553, 792 N.Y.S.2d 84 ; Estate of Scheuer v. City of New York, 10 A.D.3d 272, 274–275, 780 N.Y.S.2d 597 ; Booth v. Huff, 273 A.D.2d 576, 577, 708 N.Y.S.2d 757 ; Lott v. State of New York, 32 Misc.2d 296, 297–298, 225 N.Y.S.2d 434  ). The right of sepulcher is deeply rooted in many religious traditions (see Melfi v. Mount Sinai Hosp., 64 A.D.3d at 32–36, 877 N.Y.S.2d 300) ․ [and a] claim based on a violation of the right is designed to compensate the next of kin for the emotional suffering and mental anguish which they experience from the interference with their ability to properly bury their decedent (see Melfi v. Mount Sinai Hosp., 64 A.D.3d at 32, 36–37, 877 N.Y.S.2d 300; Bambrick v. Booth Mem. Med. Ctr., 190 A.D.2d at 647, 593 N.Y.S.2d 252).”
In determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511; see Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720). In addition, the pleading is to be “afforded a liberal construction” (Sarva v. Self Help Community Servs., Inc., 73 A.D.3d 1155, 1155, 903 N.Y.S.2d 77).
Here, the complaint states a cause of action alleging a violation of the plaintiffs' right of sepulcher, since the facts stated therein allege that the defendant interfered with the plaintiffs' “absolute right to the immediate possession of a decedent's body for preservation and burial” (Melfi v. Mount Sinai Hosp., 64 A.D.3d 26, 31, 877 N.Y.S.2d 300). Although the delay in releasing the decedent's body was not inordinate and may ultimately be determined to have been reasonable and proper under all of the circumstances, “[w]hether [the] plaintiff can ultimately establish [his] allegations is not part of the calculus in determining a motion to dismiss [made pursuant to CPLR 3211(a)(7) ]” (EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26; see Ginsburg Dev. Cos., LLC v. Carbone, 85 A.D.3d 1110, 1111, 926 N.Y.S.2d 156).
Accordingly, the Supreme Court should have denied that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging a violation of the plaintiffs' right of sepulcher.