Assata Constant, Plaintiff, v. VG LLC 10 10 10 10

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Supreme Court, Kings County, New York.

Assata Constant, Plaintiff, v. Andrew T. Cleckley Funeral Services, Inc., Andrew T. Cleckley Funeral Home, Inc., Andrew T. Cleckley, Barbadian Alva Stuart, VG Utica Realty LLC, U-Haul International, U-Haul Co. of New York and Vermont, Inc., Harleigh Cemetery & Crematory, and/or John Doe Funeral Homes (No.1-#10) (fictitious names, individuals and/or entities), John Doe Landlords (#1-#10) (fictitious names, individuals and/or entities), John Doe Trucking Rental Companies (#1-#10) (fictitious names, individuals and/or entities), John Doe Cemeteries and Crematories (#1-#10) (fictitious names, individuals and/or entities), Defendants.


Decided: April 29, 2021

Plaintiff's Attorney: Law Offices of John T. Bazzurro, LLC Michael B. Shaw, Esq. 200 Meco Drive Millstone, NJ 08535 (732) 410-5350 Attorney for Defendant Harleigh Cemetery & Crematory: Gordon Rees Scully Mansukani, LLP 500 Mamaroneck Avenue Suite 503 Harrison, New York 10528 (914) 777-2225 Attorney for Defendants U-Haul International, Inc. and U-Haul Co. of New York and Vermont, Inc. Nicoletti Spinner Ryan Gulino Pinter LLP 555 Fifth Avenue, 8th Floor New York, New York 10017 (212) 730-7750

The following e-filed papers read herein:NYSCEF #:

Notice of Motion, Affirmation (Affidavit),

and Exhibits Annexed 6-10

Affirmation in Opposition and Exhibits Annexed16-18

Reply Affirmation19

In this action to recover damages for personal injuries, defendants U-Haul International, Inc. (incorrectly sued herein as U-Haul International) and U-Haul Co. of New York and Vermont, Inc. (collectively, U-Haul), move for an order, pursuant to CPLR 3211 (a) (1) and (7), dismissing the complaint as against them with prejudice. Plaintiff Assata Constant (plaintiff) opposes.

Facts and Allegations

Plaintiff's father, Gilbert Constant (the decedent), passed away on March 30, 2020, in Brooklyn, New York (Complaint, ¶ 17).1 Following the decedent's passing, plaintiff's stepmother as his surviving spouse arranged with Andrew T. Cleckley Funeral Services, Inc. for his funeral services (id., ¶ 18). Thereafter, the decedent was transported to Andrew T. Cleckley Funeral Services, Inc. and/or Andrew T. Cleckley Funeral Home, Inc. and/or John Doe Funeral Homes (#1 through #10) (collectively, the Cleckley Funeral Home) (id., ¶ 19). On or about April 29, 2020, plaintiff presented to the Cleckley Funeral Home to "inquire as to the whereabouts of the [d]ecedent's body and/or remains at which time [its] employee(s) informed [p]laintiff that [the] same was unknown. At that time, said . . . employee(s) informed [p]laintiff that there was a 'wait[ ]list' for deceased bodies to be stored in 'U-Haul trucks' rented by [the] Cleckley Funeral [H]ome specifically for storage of the bodies" (id., ¶ 22). "On or about April 29, 2020, while lawfully on the Cleckley Funeral Home premises, [p]laintiff observed numerous exposed and decomposing bodies, including bodies stored in unrefrigerated 'U-Haul trucks' " (id., ¶ 22). "[U]pon information and belief, the [d]ecedent was cremated at . . . Harleigh Cemetery & Crematory . . . at some unknown time" (id., ¶ 24). "To date, [p]laintiff is not in possession of her father['s] remains" (id., ¶ 26).

On June 30, 2020, plaintiff brought this action against, among others, U-Haul alleging, as against it, causes of action sounding in negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress (Complaint, Counts VIII through X). The theory of plaintiff's case, regardless of the label attached to it, is twofold. Firstly, plaintiff alleges that U-Haul owed a general duty to plaintiff and the public at large to ensure that its trucks were being rented for lawful purposes and not for purposes that would endanger the general welfare of the public (such as an illegal and improper storage of the decedent and other cadavers) (Complaint, ¶¶ 61-62, 64). Secondly, plaintiff alleges that U-Haul, by virtue of knowing the number of trucks rented from it by the Cleckley Funeral Home and the identity of the latter as a funeral home and/or crematorium service, had a specific duty to inquire as to the nature and intended use of the rented U-Haul trucks (id., ¶¶ 63, 68).

On November 2, 2020, U-Haul served the instant pre-answer motion to dismiss the complaint as against it. U-Haul's motion is supported by a corporate officer's affidavit averring, as to U-Haul International, Inc., that such defendant "does not operate any rental facilities in New York City, nor does [it] employ the individuals who work at such facilities."2 The corporate officer's affidavit further avers, as to U-Haul Co. of New York and Vermont, Inc., that its standard rental agreement, as used in New York City, explicitly restricts the use of its rented trucks to the "Do-It-Yourself" moving and prohibits any other use.3 Specifically, the U-Haul standard rental agreement provides that:

"1. Customer represents and warrants that the rental of this EQUIPMENT is for the sole purpose of Do-It-Yourself moving. Customer agrees that rental of the EQUIPMENT with the intent to use the EQUIPMENT for a purpose other than do-it-yourself moving . . . may be construed as fraudulent.

* * *

11. Customers shall not store or transport . . . any toxic, . . . poisonous, dangerous or illegal substances, regardless of the manner in which it is stored or transported" (italics added).4

Plaintiff's opposition to U-Haul's motion consists solely of her counsel's affirmation.



"The threshold question in any negligence action is: does defendant owe a legally recognized duty of care to plaintiff?" (Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 232 [2001]). "Absent a duty of care, there is no breach and no liability" (Zhili Wang v Barr & Barr, Inc., 127 AD3d 964, 965 [2d Dept 2015]). "Foreseeability does not define the duty, but merely defines the scope of the duty, once it is determined to exist" (Santoro v Poughkeepsie Crossings, LLC, 180 AD3d 12, 18 [2d Dept 2019] [internal citations omitted]).

"The question of whether a member or group of society owes a duty of care to reasonably avoid injury to another is of course a question of law for the courts" (Purdy v Pub. Adm'r of Westchester County, 72 NY2d 1, 8 [1988], rearg denied 72 NY2d 953 [1988]). Courts traditionally "fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability" (Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 586 [1994]).

Here, U-Haul owed no duty to plaintiff to prevent the misuse of the U-Haul trucks by the Cleckley Funeral Home for what was essentially a criminal act — the unrefrigerated storage of the decedent and other cadavers before burial. This is more so the case as U-Haul lacked authority to control the Cleckley Funeral Home's conduct (see e.g. Aupperlee v Rest. Depot, LLC, 177 AD3d 940, 942 [2d Dept 2019], lv denied, 35 NY3d 902 [2020]; Rodriguez v Judge, 132 AD3d 966, 969 [2d Dept 2015]; Cook v Schapiro, 58 AD3d 664, 666-667 [2d Dept 2009], lv denied 12 NY3d 710 [2009]).


Under common law, "every one [had the right] to have decent burial after death; which implies the right to have his [or her] body carried, decently covered, from the place where it lies to a cemetery or other proper [e]nclosure, and there put under ground" (Patterson v Patterson, 59 NY 574, 583 [1875]). "The decent burial of the dead is a matter in which the public have concern. It is against the public health if it do[es] not take place at all, and against a proper public sentiment, that it should not take place with decency" (id. at 585 [internal citation omitted]).

In 1881, the state legislature recognized and sanctioned the right of everyone to have a decent burial by enacting section 306 of the Penal Code, which, in 1909, became section 2211 of the then-enacted Penal Law, and in 1953 the exact language contained in section 2211 was transferred to the since-effective subdivision 1 of section 4200 of the Public Health Law (see 1969 Ops Atty Gen. No. 69-67, 1969 WL 173240) (informal opinion). Public Health Law § 4200 (1) requires that "every body of a deceased person, within this state, shall be decently buried or incinerated within a reasonable time after death." Public Health Law § 12-b (2) generally makes it a criminal offense for any person to "wilfully" violate, inter alia, Public Health Law § 4200 (1).

In one of the few criminal prosecutions under the immediate predecessor to Public Health Law § 4200 (1) (i.e., section 2211 of the since-repealed Penal Law of 1909), it was stated that:

"Defendant, an undertaker, was found guilty of acts that would grieve and shock relatives and outrage the public in failing to inter several corpses entrusted to him for burial. He absconded with the moneys paid him by relatives or representatives, and left the bodies in the basement of the building he occupied. All of the indictments arose out of these transactions. The order consolidating the trial of the indictments was proper, and the evidence sustains the conviction" for, among other things, four separate misdemeanors (one for each dead body which defendant failed to bury).

(People v Ackley, 270 App Div 958, 958 [3d Dept 1946] [per curiam] [italics added], affd without opinion 296 NY 731 [1946], lv denied 296 NY 825 [1947], cert denied 330 US 846 [1947]).

Aside from potential criminal prosecutions resulting from either unperformed or delayed burials, funeral homes are subject to administrative penalties imposed by the New York State Department of Health (see e.g. Matter of Myer Funeral Serv. Corp. v Zucker, 188 AD3d 1488, 1492 [3d Dept 2020] ["the approximate six-week delay in disposing of decedent's body constituted an unreasonable amount of time under the circumstances presented"; hence, the imposition of a $28,000 fine was not an abuse of discretion]; see also 10 NYCRR 77.12 [g] [Funeral homes commit "misconduct in the business and practice of funeral directing" by, among other things, "abandoning, neglecting, abusing or failing to treat with dignity and respect, a dead human body entrusted" to their care.]).

Separately from the foregoing, "[t]he 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 or other disposition of the remains, and damages may be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent's body" (Mack v Brown, 82 AD3d 133, 137 [2d Dept 2011] [italics added]). For example, a hospital mortuary's failure to properly refrigerate a decedent for a period of five days before transfer to a funeral home for burial subjected it to liability as a matter of law (see Wainwright v New York City Health & Hosps. Corp., 61 AD3d 851, 852 [2d Dept 2009]; accord Massaro v Charles J. O'Shea Funeral Home, Inc., 292 AD2d 349, 351 [2d Dept 2002] [in an action to recover damages for negligent infliction of emotional distress based on mishandling of decedent's body, defendants funeral director, casket manufacturer, and cemetery were denied summary judgment dismissing claims as against them]).

In contrast to morgues, funeral homes, and cemeteries which are licensed by the New York State Department of Health in handling human remains, a general rental company, such as U-Haul, supplies regular, unrefrigerated trucks to the public for moving and storing household and commercial goods. Thus, the statutory obligations regarding the handling of decedents and the common-law right of sepulcher of their next of kin cannot, in the absence of specific allegations to the contrary, apply to the general rental companies.


In an attempt to meet the pleading requirements, plaintiff alleges that U-Haul failed to inquire "as to the purpose of the use of its trucks and/or equipment [by] the [Cleckley Funeral Home] despite [U-Haul's] knowledge of the number of [its] trucks being rented and the nature of the [Cleckley Funeral Home's] business" (Complaint, ¶ 68; see also ¶ 63). If plaintiff is seeking to plead a cause of action under a theory of negligent entrustment as against U-Haul, her allegations are insufficient as a matter of law. To establish a cause of action under a theory of negligent entrustment, a defendant, as relevant herein, must "have some special knowledge concerning a characteristic or condition peculiar to the [person to whom a particular chattel is given] which renders [that person's] use of the chattel unreasonably dangerous" (Byrne v Collins, 77 AD3d 782, 784 [2d Dept 2010] [internal quotation marks omitted; italics in the original], lv denied 17 NY3d 702 [2011]). General rental companies, however, are under no obligation to check a renter's driving background beyond verifying that he or she has a valid driver's license (see Byrne, 77 AD3d at 784; see also Monette v Trummer, 105 AD3d 1328, 1330 [4th Dept 2013], affd 22 NY3d 944 [2013]). In this regard, the Second Judicial Department's decision in Cook v Schapiro (58 AD3d 664 [2009], lv denied 12 NY3d 710 [2009]), is instructive. In Cook, a car dealership sold, by way of a trade-in, a new car to an 80-year-old woman who, on purchase, presented her valid driver's license and a valid car registration for the traded-in automobile. Two days later, the buyer, while driving her new car, struck and killed plaintiff's decedent. The Second Judicial Department, in ruling that the claim of negligent entrustment as against the car dealership was not viable, emphasized:

"At bar, in the absence of any evidence whatsoever that its salesperson possessed special knowledge concerning a characteristic or condition peculiar to [the car buyer] that rendered her use of the [new] car unreasonably dangerous, there can be no viable cause of action alleging negligent entrustment. Thus, notwithstanding the tragic nature of the instant accident, but mindful of the precedential, and consequential, future effects of this ruling, we decline to impose on an automobile salesperson in a commercial transaction such as this a duty to assess the ability or mental or physical fitness of a customer to operate a motor vehicle that is beyond the ken of the average salesperson."

(Cook, 58 AD3d at 666-667 [internal quotation marks, alterations, and citation omitted; italics added]).

Applying the foregoing principles, the Court holds that plaintiff's allegation that U-Haul's knowledge regarding "the number of [its] trucks being rented and the nature of the [Cleckley Funeral Home's] business" is insufficient to state a cause of action sounding in negligent entrustment as against U-Haul. Plaintiff has failed to allege that U-Haul possessed any special knowledge concerning a characteristic or condition peculiar to the Cleckley Funeral Home, as opposed to any other funeral home generally, which would render its use of the U-Haul trucks illegal, improper, or dangerous (compare Rios v Smith, 95 NY2d 647 [2001] [defendant permitted his minor son and the latter's minor friends to drive his all-terrain vehicles, which were capable of attaining speeds of 20-30 miles per hour, knowing that the minors, while driving the vehicles, would carry one passenger, per vehicle, also a minor, who rode the vehicle by holding onto the driver]; Splawnik v DiCaprio, 146 AD2d 333 [3d Dept 1989] [defendant, who was a sheriff's deputy and a licensed gun dealer, retrieved and loaded a handgun, turned the safety switch off, and handed it over to the woman he knew to be severely depressed]; Golembe v Blumberg, 262 App Div 759 [2d Dept 1941] [defendant permitted an adult who he knew was epileptic to drive defendant's automobile]).

In sum, the complaint must be dismissed as against U-Haul with prejudice for failure to state a cause of action. The Court cannot allow plaintiff to forego her pleading obligations in order to skip straight to discovery in search of a theory of liability as against U-Haul.


Based on the foregoing, it is

ORDERED that the branch of U-Haul's motion which is for an order pursuant to CPLR 3211 (a) (7) dismissing the complaint as against it for failure to state a cause of action is granted, and the complaint is dismissed in its entirety as against U-Haul with prejudice, and the remaining branch of U-Haul's motion which is for an order of dismissal pursuant to CPLR 3211 (a) (1) is denied as moot; and it is further

ORDERED that the action is severed and continued as against the remaining defendants; and it is further

ORDERED that to reflect the dismissal of U-Haul as set forth herein, as well as the prior stipulated dismissal of defendant VG Utica Realty LLC from this action (NYSCEF #21), the caption is amended to read as follows:


Index No. 511314/20

Assata Constant,


against -

Andrew T. Cleckley Funeral Services, Inc.,

Andrew T. Cleckley Funeral Home, Inc.,

Andrew T. Cleckley,

Barbadian Alva Stuart,

Harleigh Cemetery & Crematory,

and/or John Doe Funeral Homes (#1-#10)

(fictitious names, individuals and/or entities),

John Doe Landlords (#1-#10)

(fictitious names, individuals and/or entities),

John Doe Trucking Rental Companies (#1-#10)

(fictitious names, individuals and/or entities),

John Doe Cemeteries and Crematories (#1-#10)

(fictitious names, individuals and/or entities),



U-Haul's counsel is directed to electronically serve a copy of this decision and order with notice of entry on plaintiff's counsel and on those parties who have appeared in this action to date and to electronically file an affidavit of service thereof with the Kings County Clerk.

This constitutes the decision, order and judgment of the Court.


1.   The complaint (NYSCEF #1) is not verified either by plaintiff or her counsel.

2.    See Affidavit William W. Wolff, III, Vice President of U-Haul Co. of New York and Vermont, Inc., dated October 25, 2020 (NYSCEF #10) (the Wolff affidavit), ¶ 5.

3.    Id., ¶ 3.

4.    See Additional Terms & Conditions of Equipment Rental, annexed as Exhibit 1 to the Wolff affidavit.

Mark I. Partnow, J.

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