IN RE: Bakulesh KSHATRIYA etc. (2025)

Order and judgment (one paper), Supreme Court, New York County (Judy H. Kim, J.), entered May 7, 2024, which denied the petition to annul a determination of respondents Office of Chief Medical Examiner (OCME) and Dr. Julian Samuel, dated September 20, 2022, declining to change the manner of death on the death certificate of Sonam Kshatriya, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

As an initial matter, respondents waived their defenses based on standing and timeliness by failing to assert them in the answer or a motion to dismiss (see CPLR 3211[a][3], [a][5], [e];  Matter of Prudco Realty Corp. v. Palermo, 60 N.Y.2d 656, 657, 467 N.Y.S.2d 830, 455 N.E.2d 483 [1983];  Matter of Astacio v. Bratton, 146 A.D.3d 613, 614, 44 N.Y.S.3d 761 [1st Dept. 2017]).

OCME's determination was not arbitrary and capricious (see Matter of Robins v. New York City Off. of Chief Med. Examiner, 212 A.D.3d 541, 541, 182 N.Y.S.3d 83 [1st Dept. 2023], lv denied 39 N.Y.3d 914, 2023 WL 3589038 [2023]).  In an affirmation submitted with this proceeding, the Deputy Chief Medical Examiner explained why she and the City Medical Examiner who prepared the final autopsy report determined the manner of death to be suicide and disagreed with the conclusions in petitioner's expert reports.

OCME considered “all available information including scene investigation, police investigation, decedent's history, physical examination, a review of the decedent's writings found at the scene, and autopsy findings.”  Because OCME “set forth a reasonable basis for [its] determination,” it must be sustained (Matter of Infante v. Dignan, 12 N.Y.3d 336, 341, 879 N.Y.S.2d 824, 907 N.E.2d 702 [2009];  see also Matter of Robins, 212 A.D.3d at 541–542, 182 N.Y.S.3d 83).

Petitioner has not demonstrated entitlement to a hearing, which petitioner did not request before Supreme Court, or to discovery (see Price v. New York City Bd. of Educ., 51 A.D.3d 277, 293, 855 N.Y.S.2d 530 [1st Dept. 2008], lv denied 11 N.Y.3d 702, 864 N.Y.S.2d 389, 894 N.E.2d 653 [2008]).

We have considered petitioner's remaining contentions and find them unavailing.