Article by Nuo (Norman) Jiang, Esq.

Death is one of life’s greatest uncertainties and is often accompanied by fear, discomfort and existentialism. Societal reluctance to discuss death in an open and honest manner often carries real costs by leaving families and friends of the deceased ill-prepared for the untimely deaths of loved ones. In a time of uncertainty and emotional taxation, families spending thousands of dollars on funeral arrangements expect perfection and flawless delivery of contracted funeral services. While errors by funeral homes and service providers in executing these arrangements do happen and can often be resolved with transparent communication, larger mistakes, such as burial of the wrong body, or burial in an incorrect manner, can land funeral service providers in civil lawsuits potentially carrying disastrous consequences. The State of New York has developed a large body of law addressing these civil claims asserted against funeral homes and this law probes a funeral service provider’s conduct in its disposition of the remains of the deceased.

New York recognizes, among other claims, a specific cause of action to recover for funeral home negligence by way of Right of Sepulcher. Generally, common law Right of Sepulcher protects the next of kin’s right to bury the deceased. This common law right was seminally articulated in Rugova v. City of New York where the Court noted that it is the next of kin’s absolute right “to the immediate possession of a decedent’s body for preservation and burial.” The right’s parameters were further articulated in Melfi v. Mount Sinai Hosp., where the Court explained that if a “person unlawfully interferes with that right or improperly deals with the decedent’s body,” damages are awarded against that person “as compensation to the next of kin” for the emotional injury that resulted from their inability to conduct a proper burial.”

The Right of Sepulcher is recognized in New York’s common law, but the State legislature also codified the right under the New York Public Health Law Article 42 (hereafter “NYPHL 42”).  A plaintiff can assert claims under both the common law and NYPHL 42 versions of the right when interference with right to a proper burial occurs. NYPHL 42 deals with cadavers and consists of multiple chapters and subsections discussing these issues.  New York’s Courts have recognized a cause of action under NYPHL 4200 for interference with right to immediate possession of decedent’s body and specifically provides:

Except in the cases in which a right to dissect it is expressly conferred by law, every body of a deceased person, within this state, shall be decently buried or incinerated within a reasonable time after death…The provisions of this section shall not impair the right to carry the body of a deceased person through this state, or to remove from this state the body of a person who has died within it, for the purpose of burying the same elsewhere.

New York Courts have broadly interpreted the issues surrounding this right, and have awarded compensation in the past for violations of the same. The New York judiciary has historically favored plaintiffs in hearing these claims. New York Courts have essentially created a “deluxe package” of the property right in a deceased’s body and disposition, which was first recognized in the case of Larson v. Chase. Over the years, New York Courts have assigned property value in corpses to be protected, allowed for recovery for emotional distress even absent money damages, expanded the right to include body parts and organs and imposed a duty to notify. This “deluxe package” only increased the duties and penalties on hospitals and those who handle the dead.

Typically, practitioners asserting claims on behalf of a deceased’s next of kin in New York Courts will file a civil complaint against a funeral home or funeral service to accuse the entity of negligence, breach of contract, or breach of some other kind of duty. The decision to assert a separate count citing the Right of Sepulcher is a strategic one and some attorneys choose to raise the Right of Sepulcher for the first time in a dispositive motion. As discussed in more detail below, it is of the utmost importance for a plaintiff’s attorney to prove that the funeral service provider failed to act in good faith in carrying out the disposition of the deceased’s remains. The Right of Sepulcher is especially concerned with the lack of good faith conduct and will find for a plaintiff when the same is present.

Given the strength of the Right of Sepulcher and the New York judiciary’s tendency to favor Plaintiffs, it should be noted that the right is not absolute. NYPHL 42 also provides for statutory defenses that New York practitioners defending funeral homes and funeral service providers should seek to invoke. NYPHL 4201 concerns “disposition of remains, responsibility therefore.”  Article 42, Title 7 concerning cemetery and funeral home liability, provides a shield for funeral home liability for:

actions taken reasonably and in good faith to carry out the written directions of a decedent as stated in a will or in a written instrument executed pursuant to this section [and] actions taken reasonably and in good faith to carry out the directions of a person who represents that he or she is entitled to control of the disposition of remains, provided that such action is taken only after requesting and receiving written statement that such person:

(a) is the designated agent of the decedent designated in a will or written instrument executed pursuant to this section; or (b) that he or she has no knowledge that the decedent executed a written instrument pursuant to this section or a will containing directions for the disposition of his or her remains and that such person is the person having priority under subdivision two of this section.

This statutory defense places a great deal of emphasis on having the right person control the disposition of the deceased’s remains. For many funeral homes and service providers, this issue of control is a nonfactor as control is not for the funeral service provider to decide and is normally left to the next of kin or to the deceased in preparing a last will and testament. To be afforded this protection, a funeral home must first prove that it took actions in good faith to carry out the directions of a member of the estate who represented that he or she is entitled to control of the disposition of decedent’s remains. The other component of the statute requires the funeral home to request and receive a written statement that such person is either the designated agent of the decedent (designated in a will or written instrument executed pursuant to this section); or that person has no knowledge that the decedent executed a written instrument pursuant to this section or a will containing directions for the disposition of his or her remains and that such person is the person having priority under subdivision two of this section shown above.

In showing that it acted in good faith in carrying out the instructions the deceased’s designated agent, a funeral home or service provider must establish a fine detailed timeline of events in conducting the disposition. Funeral service providers should be aware that these types of claims function as an examination of their compliance with the statutory requirements under NYPHL 4201. In defending against Right of Sepulcher claims, a timeline showing compliance with NYPHL 4201 and to the designated agent’s instructions by way of the deceased may be the difference in funeral service providers avoiding liability for alleged mistakes.