Gerald A. Corallo, Jr., et al., appellants, v. Bernadette Corallo, etc., et al., respondents. (2026)

Argued—December 5, 2025

DECISION & ORDER

O/

In an action, inter alia, to recover damages for violation of the common-law right of sepulcher and violation of Public Health Law § 4201, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Vincent J. Martorana, J.), dated April 11, 2024.  The order, insofar as appealed from, granted those branches of the separate motions of the defendant Bernadette Corallo and the defendants Donohue Cecere Funeral Directors and Carriage Funeral Holdings, Inc., which were pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against each of them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

The decedent, Gerald A. Corallo, Sr. (hereinafter the decedent), died in a hospital on August 3, 2022.  He was survived by his wife, the defendant Bernadette Corallo (hereinafter Bernadette).  On August 5, 2022, the defendants Donohue Cecere Funeral Directors and Carriage Funeral Holdings, Inc. (hereinafter together the funeral defendants), entombed the decedent's body in a cemetery crypt at Bernadette's direction.  In September 2023, the plaintiffs, who are the decedent's surviving children from a prior marriage, commenced this action against Bernadette and the funeral defendants, inter alia, to recover damages for violation of the common-law right of sepulcher and violation of Public Health Law § 4201.  The plaintiffs alleged, among other things, that they were the decedent's next of kin and had a right to the immediate possession of the decedent's remains upon his death.  Bernadette and the funeral defendants separately moved, inter alia, pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against each of them.  In an order dated April 11, 2024, the Supreme Court, among other things, granted those branches of the separate motions.  The plaintiffs appeal.

Generally, on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint is afforded a liberal construction, the facts as alleged in the complaint are accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court determines only whether the facts as alleged fit within any cognizable legal theory (see Leon v. Martinez, 84 N.Y.2d 83, 87–88).  “When evidentiary material is considered, the criterion is whether the [plaintiff] has a cause of action, not whether [the plaintiff] has stated one, and, unless it has been shown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, ․ dismissal should not eventuate” (Guggenheimer v. Ginzburg.  43 N.Y.2d 268, 275).

“ ‘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’ ” (Turner v. Owens Funeral Home, Inc., 189 AD3d 911, 912, quoting Shipley v. City of New York, 25 NY3d 645, 653).  “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” (id. at 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).  Public Health Law § 4201(2)(a) “identifies, in descending priority, those persons who shall have the right to dispose of a decedent's remains” (Martin v. Ability Beyond Disability, 153 AD3d 695, 697;  see Mack v. Brown, 82 AD3d 133, 138).  In the absence of a written instrument of designation, a decedent's surviving spouse has priority over a decedent's surviving adult children (see Public Health Law § 4201[2][a][ii], [iii] ).

Here, the Supreme Court properly directed dismissal of the causes of action to recover damages for violation of the common-law right of sepulcher and violation of Public Health Law § 4201 (see CPLR 3211[a][7] ).  Bernadette's evidentiary submissions conclusively established that the plaintiffs' allegation that they had a right to possession of the decedent's remains was not a fact at all (see Public Health Law § 4201[2][a][ii], [iii];  Turner v. Owens Funeral Home, Inc., 189 AD3d at 912;  Mack v. Brown, 82 AD3d at 138).  Thus, the plaintiffs failed to state a cause of action against either Bernadette or the funeral defendants for violation of the common-law right of sepulcher or violation of Public Health Law § 4201.

The plaintiffs' remaining contentions are without merit.

Accordingly, the Supreme Court properly granted those branches of the separate motions of Bernadette and the funeral defendants which were pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against each of them.

DILLON, J.P., IANNACCI, DOWLING and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court