DICK v. CITY OF NEW YORK (2004)

Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered August 28, 2003, which, to the extent appealed from, denied plaintiffs' motion for leave to file an amended complaint, unanimously affirmed, without costs.

 In asserting that an earlier decision in November 2002 erroneously dismissed their claims relating to the mishandling of decedent's body, in light of New York's long-recognized cause of action for emotional distress due to interference with possession of a dead body, plaintiffs are disputing a decision and order which they never appealed.   Accordingly, this Court lacks authority to review that 2002 order (see Hecht v. City of New York, 60 N.Y.2d 57, 61, 467 N.Y.S.2d 187, 454 N.E.2d 527 [1983] ).   Even if the 2002 order were to be considered as nonfinal when issued, in that it authorized plaintiffs to move for leave to amend their complaint, plaintiffs permitted it to become final by operation of its terms when they failed to file an amended complaint within the time allotted (see e.g. Crystal v. Manes, 130 A.D.2d 979, 516 N.Y.S.2d 823 [1987] ).

The only viable argument remaining pertains to the order appealed from, i.e., the determination that plaintiffs' notice of claim was insufficient to apprise the City of a claim of unauthorized autopsy (see General Municipal Law § 50-e [2] ).   The record reflects that that determination was appropriate.