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ESTATE OF Lonnie Lamont HAMILTON, and Lonnie Lee Hamilton, Individually and as Administrator of Estate, Claimant, v. STATE of New York, Defendant.
Claimant, Lonnie Lee Hamilton individually and on behalf of the estate of his deceased son Lonnie Lamont Hamilton, moves for partial summary judgment on the issue of liability pursuant to CPLR 3212 on his cause of action for interference with his right of sepulcher.
Lonnie Lamont Hamilton (hereinafter Lonnie, Jr. or the decedent) died on March 18, 2016 when he hung himself with torn sheets while confined to a cell in the Special Housing Unit of Marcy Correctional Facility (Marcy). He was twenty years old and had arrived at Marcy from the Downstate Correctional Facility reception facility on March 13, 2015 (claimant's Exhibit H, Chronological Entry Sheet; claimant's Exhibit F, Smith EBT, p. 42).
With respect to the loss of sepulcher cause of action, the relevant facts are undisputed.1 After Lonnie, Jr. was pronounced dead, the matter was assigned to Reverend Giles Sherman Dunmore, the facility Chaplain, to notify his next of kin of his death. Reverend Dunmore reviewed the decedent's guidance file and computer records to obtain a list of phone numbers to call in order to notify the decedent's next of kin. Reverend Dunmore called all of the numbers on the list, including the decedent's father's, but was unable to reach a family member or anyone who could relay the news of Lonnie, Jr.’s passing to the family. According to Reverend Dunmore's entries in the Chronological Entry Sheet (claimant's Exhibit H, Chronological Entry Sheet), he called the decedent's father's phone number three times but was unable to make contact. Reverend Dunmore testified that the decedent's father's phone number was no longer in service and he was unable to recall whether Department of Corrections and Community Supervision's (DOCCS) records included phone numbers for the decedent's mother or sister (claimant's Exhibit G, Dunmore EBT, p. 37-38). Reverend Dunmore searched the decedent's personal property for information and attempted to contact the decedent's uncle at the same number he used to call the decedent's father “but it was the wrong number” (claimant's Exhibit H, Chronological Entry Sheet entry for March 19, 2016). In addition, Reverend Dunmore called three other phone numbers contained in DOCCS’ records and the Cordele County Sherriff's Office in the State of Georgia where the decedent was born, without any success in locating decedent's relatives. As it turns out, the phone number Reverend Dunmore utilized to call the decedent's father was the wrong number as one of the digits entered into the computer records had been typed as a “0” rather than a “6” (compare claimant's Exhibits I, Emergency Contact information dated May 2, 2015, and H, Chronological Entry Sheet entry for March 19, 2016). Reverend Dunmore completed the Inmate Death Notification form stating, “After searching files and possible leads, we were not able to reach emergency contact locate (family) or nearest of kin” (claimant's Exhibit H, Inmate Death Notification form). Reverend Dunmore admittedly did not send a letter to the decedent's family and never contacted law enforcement in the Bronx to locate and notify the family. On March 30, 2016, twelve days after the decedent's death, he was buried in a plywood box in State-issued clothing on the grounds of Marcy Correctional Facility (claimant's Exhibit F, Smith EBT, p. 113; claimant's Exhibit H, Inmate Death Notification form). In attendance was Rabbi Maxx (prison records reflected the decedent was Jewish), Offender Rehabilitation Counselor (ORC) Smith, and the two individuals from the maintenance department who opened and closed the grave.
Not having received any letters from the decedent since Christmas of 2015, by May 2016 claimant felt there was something wrong (claimant's Exhibit C, Hamilton EBT, p. 79). Claimant's daughter (the decedent's sister) and the claimant's sister both checked DOCCS’ website and learned that Lonnie was listed as “deceased” (id.). Claimant called DOCCS, irate, and testified that “everybody's hot potato-ing the phone” (id. at 80). Finally, claimant was able to confirm that his son was deceased. Claimant and his mother (decedent's grandmother) both called ORC Smith and Reverend Dunmore, among others. ORC Smith testified that the grandmother was “hysterical” and wanted to know why they were not notified (claimant's Exhibit F, Smith EBT, p. 118). Reverend Dunmore testified that the grandmother wanted to know where her grandchild was and why he was given a Jewish burial.
ORC Smith testified that he spoke with Reverend Dunmore daily regarding his progress in notifying the family of Lonnie, Jr.’s death. However, ORC Smith never suggested that Reverend Dunmore send a letter to the decedent's next of kin and ORC Smith was never made aware of any effort to contact the local police in the Bronx where the decedent and his family lived before his arrest.
It is undisputed that at the time of the decedent's death, the claimant resided with his mother (the decedent's grandmother) in the family home in the Bronx. This was the same address where the claimant grew up, and where he raised his son, the decedent in this case. It is also the same address where the decedent resided before his incarceration and where the decedent and his father had exchanged letters and packages. Both ORC Smith and Deputy Superintendent of Programs Mark Kinderman admitted during depositions that the last known address of the claimant, who was the decedent's emergency contact, was in DOCCS’ files (claimant's Exhibit F, Smith EBT, pp. 120-121; claimant's Exhibit J, Kinderman EBT, p. 56-57). When claimant was informed by someone from DOCCS that they attempted to contact the decedent's mother through law enforcement in Georgia, he stated: “Okay. But I'm here. I don't understand. You picked him up in the Bronx. Why are you looking in a jail in Cordele, Georgia? You picked him up in the Bronx at a house where we still live” (claimant's Exhibit C, Hamilton EBT, p. 87).
After a legal battle with the State, on September 8, 2016 the decedent's remains were exhumed, identified by the claimant and transported for burial in accordance with the family's wishes (Wagschal affirmation dated Oct. 29, 2020, ¶ 8). Claimant described the “hurt” he felt when he learned of his son's passing, the “fight” that was necessary to find out where his son was buried, and the emotional toll it took to see his body exhumed (claimant's Exhibit C, Hamilton EBT, pp. 69-70).
ORC Smith, Reverend Dunmore and Deputy Superintendent of Programs Kinderman all testified that the inmate death notification procedures set forth in DOCCS Directive 4013 govern inmate death notifications. According to Deputy Superintendent Kinderman, both peace officers and civilian employees of DOCCS are required to follow the Directive, which sets forth detailed step-by-step directions for administrative action in the event of an inmate death. With respect to notifying the inmate's next of kin or other designated individual, the Directive requires that a Chaplain or Supervising Offender Rehabilitation Counselor (SORC) record all notification efforts on form 4013A (claimant's Exhibit H, Inmate Death Notification form), which should include review of the inmate's “visitation, phone log, packages, and emergency contacts” (claimant's Exhibit E, Directive 4013 [II] [D] ). The Directive further states the following:
“4. ․ In difficult cases it is recommended to outreach to local Parole/Probation Field Offices and State/Local Police Departments.
5. In order to demonstrate due diligence on the part of the Department in those cases for which a working phone number cannot be located, the facility shall send certified letters (return receipt) to at least two next of kin or pre-designated individuals, if such addresses can be located” (claimant's Exhibit H, DOCCS Directive 4013, II [D]  and ).
Claimant contends that the failure to notify him of his son's death by certified mail or to otherwise contact local law enforcement in the Bronx in an attempt to locate him violates Directive 4013, thereby warranting partial summary judgment on his loss of sepulcher cause of action. In opposition to the motion, defendant does not dispute that its files contained the then-current address of decedent's father, that the decedent's father was indicated in its records as decedent's emergency contact, and that no letter was sent to anyone in an attempt to exercise due diligence in accordance with Directive 4013. Rather, defendant contends that although Reverend Dunmore was unable to reach a family member by phone, the requirement that a certified letter be sent was not triggered because on March 25, 2016, Reverend Dunmore called the claimant but there was “no answer” (claimant's Exhibit H, Chronological Entry Sheet, p. 2). According to the defendant, DOCCS is only required to send a certified death notification when a working phone number cannot be located and “[h]ere working phone numbers were located and voice messages were left without any return calls” (Affirmation in Opposition, 18).
Long settled in the law, the common law right of sepulcher gives a decedent's next of kin or other designated individual 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 , quoting Mack v Brown, 82 AD3d 133, 137 [2d Dept 2011]). Interference with the right of sepulcher 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” (Melfi v Mount Sinai Hosp., 64 AD3d 26, 39 [1st Dept 2009]). While recovery in such cases has been historically grounded on the fiction that relatives of the deceased have a quasi-property right in the body, it is now well recognized that “in reality the personal feelings of the survivors are being protected” (Johnson v State of New York, 37 NY2d 378, 382 ; see also Darcy v Presbyterian Hosp. in City of NY, 202 NY 259 , rearg denied 203 NY 547 ). Thus, a claim for loss of a right of sepulcher does not accrue until the next of kin learns of the interference and suffers mental anguish, which is generally presumed (Melfi, 64 AD3d at 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’ ” (Green v Iacovangelo, 184 AD3d 1198, 1200 [4th Dept 2020], lv denied 35 NY3d 917 , quoting Shepherd v Whitestar Dev. Corp., 113 AD3d 1078, 1080 [4th Dept 2014] [internal quotation marks omitted]; see 2A NY PJI2d 3:6 at 82 ). Here, it is undisputed that claimant is the next of kin who had a right to immediate possession of his son's remains for burial, that he was not notified of his son's death by either phone or letter as required and that DOCCS’ disposal of the remains without notifying the next of kin caused mental anguish.
Defendant's contention that it complied with Directive 4013 and was not required to send written notification of an inmate's death to the next of kin overlooks the controlling standard of care in such cases. Defendant argues in this regard that although Reverend Dunmore was unable to reach a family member by phone, Directive 4013 (II) (D) (5) requires a certified letter only when the phone number of the next of kin is a non-working number, not when the phone number works but is incorrect or is unanswered (citing claimant's Exhibit E, DOCCS Directive Section 4013). Whether the number dialed is incorrect or non-working is a meaningless distinction that overlooks the underlying impetus for the notification procedures set forth in the Directive and the applicable statutes and regulations (see Correction Law § 624 and 7 NYCRR 8.2). A plain reading of Correction Law § 624, entitled “Next of kin; death of inmate,” specifically requires that next of kin shall “be identified from the emergency contact information previously provided by the inmate to the department.” This was not done. Likewise, DOCCS regulation 7 NYCRR 8.2 requires that an inmate's immediate family be given the particulars of an inmate's death. As noted by Mark Bonaquist, Esq., in his Practice Commentaries to Correction Law § 624, given the cloistered environment of the prison setting, “[t]he obligations imposed by this section are reasonable and compassionate steps to help family members understand the circumstances surrounding their loved one's demise” (Correction Law § 624, 2017 Practice Commentaries). According Directive 4013 the restrictive interpretation defendant suggests by requiring written notifications of inmate deaths only when a functioning phone number is unavailable is contrary to the purpose of the statute; to keep family members informed.
Moreover, defendant's interpretation of the Directive does not comport with the applicable common law standard of care which requires that a facility's efforts to contact the next of kin must be “ ‘reasonable and sufficient under the circumstances’ ” (Green, 184 AD3d at 1200; see also Loughlin v State of New York, Ct Cl, Feb. 6, 2014, Mignano, J., claim No. 121996, UID No. 2014-029-013, [prison liable for failing to act reasonably in notifying the next of kin]; Turner v Owens Funeral Home, Inc., 189 AD3d 911, — [2d Dept 2020][“a plaintiff must demonstrate that ‘the injuries were “the natural and proximate consequence of some wrongful act or neglect on the part of the one sought to be charged” ’ ”]; Mack v Brown, 82 AD3d 133 [2d Dept 2011]).
Here, claimant met his burden of establishing his entitlement to partial summary judgment on his claim alleging defendant's interference with his right to sepulcher (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 ). Claimant demonstrated his right to the immediate possession of the decedent's body for preservation and burial, and defendant's unlawful interference with this right by failing to undertake reasonable measures to contact the next of kin before disposing of the remains. No letter was sent to the claimant, who was the decedent's emergency contact, and it is undisputed that DOCCS’ records contained his then-current address. Nor did they contact local police authorities in the Bronx where the claimant and his son lived prior to his incarceration and where the claimant and his mother (the decedent's grandmother) resided at the time of the decedent's death. DOCCS’ failure to attempt to notify the next of kin in writing at the emergency contact address on file was not reasonable under the circumstances presented.
Significantly, defendant does not contend that a special duty to the claimant was lacking or that its conduct was discretionary so as to immunize it from liability. Indeed, it is settled that when the State or 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” (Cansev v City of New York, ––– AD3d ––––, 2020 WL 4197163 [2d Dept 2020]; Rugova v City of New York, 132 AD3d 220 [1st Dept 2015]; Tinney v City of New York, 94 AD3d 417 [1st Dept 2012]; cf. Williams v City of New York, 188 AD3d 442 [1st Dept 2020] [question of fact existed as to whether the defendant had documents identifying the next of kin so that its failure to notify the next of kin was ministerial rather than discretionary]). Inasmuch as DOCCS was possessed of all the information necessary to inform the next of kin of the decedent's passing, its failure to do so under the circumstances warrants partial summary judgment on claimant's loss of sepulcher cause of action.
For all of the foregoing reasons, claimant's motion for partial summary judgment on the issue of liability on his eighth cause of action for loss of his right to sepulcher is granted. A trial on damages will be held in abeyance pending a determination of the remaining causes of action.
1. Notice of Motion dated October 29, 2020;
2. Affirmation in Support dated October 29, 2020, with Exhibits A-K;
3. Affirmation in Opposition dated November 25, 2020, with Exhibit A;
4. Affirmation in Reply dated December 1, 2020, with Exhibit A-B.
1. In addition to the loss of the right of sepulcher, claimant seeks damages for negligent supervision, wrongful death, and negligent infliction of emotional distress on behalf of the decedent.
Francis T. Collins, J.
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Docket No: 129318
Decided: February 19, 2021
Court: Court of Claims of New York.
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