In Hanna v. Fenton, the Supreme Court of the State of New York, New York County addressed a case involving the alleged mishandling of a decedent’s remains.
Decedent’s Next Of Kin Alleges Mishandling Of Decedent’s Remains
Early in the morning on July 20, 2017, Kathleen Hanna passed away in her home. At 6:00 a.m., her home health aide informed Valerie Paulino, one of decedent’s court-appointed co-personal needs guardians about decedent’s passing. Paulina informed Michael Fenton, one of Hanna’s co-property management guardians.
Defendant James Puccio, the licensed funeral director of defendant Glascott Funeral Home allegedly picked up decedent’s body after being authorized to do so by Paulino and Fenton. Plaintiff James Hanna (decedent’s brother and the co-personal needs and Property Management Guardian) was not informed that decedent’s remains were picked up, despite being appointed as agent in decedent’s Dispositional Appointment.
Later that morning, at about 8:54 a.m., James Hanna emailed Fenton to inform him of decedent’s death, unaware that Fenton already had been informed by Paulino. Fenton responded to the email less than 20 minutes later and informed James that decedent’s remains were transferred to Reddens Funeral Home, even though the remains were either in transit to or had already arrived at Glascott Funeral Home.
James Hanna called Reddens Funeral Home later that morning. Reddens informed him that they had no record of receiving decedent’s body.
In the late afternoon, Puccio, from Glascott, informed James Hanna that decedent’s remains were at Glascott. Puccio agreed to transfer the remains to Reddens pursuant to James Hanna’s demand. Decedent’s remains were transferred on July 21, and a service was held on July 26, 2017.
James Hanna and Charles Hanna (decedent’s nephew and personal representative) sued Fenton for the right of sepulcher and fraud. Fenton moved to dismiss, for costs, and for fees and sanctions for Plaintiff’s frivolous conduct.
What Is A Dispositional Appointment?
A dispositional appointment is a form provided by the New York State Department of Health that allows you to appoint an agent to control the disposition of your remains upon your death. The form is available from the Department of Health, here.
The dispositional appointment form contains a section for “special directions” for the appointed agent regarding the handling of your remains. Successor agents can also be appointed.
In this case, Plaintiff James Hanna had been appointed by the decedent as the agent to control the disposition of her remains.
Can Individuals With Different Degrees of Kinship Both Be A Decedent’s Surviving Next Of Kin?
Yes, individuals with different degrees of kinship can both be a decedent’s surviving next of kin. Here, Fenton argued that Charles Hanna (decedent’s nephew and personal representative) lacked standing to assert any claims against Fenton, because he was not the “next of kin” with standing to sue.
The court found that both decedent’s brother, James, and nephew, Charles, were her next of kin, and that both had standing to sue.
What Is The Right To Sepulcher Under New York Law?
As summarized by the Supreme Court of the State of New York, New York County:
The common law right of sepulcher originates from the absolute right of a decedent’s surviving next of kin to immediately possess the body for preservation and burial…. As the First Department reflected, “the right of sepulcher is less a quasi-property right and more the legal right of the surviving next of kin to find ‘solace and comfort’ in the ritual of burial.” Id. at 32. Further, “a cause of action does not accrue until interference with the right directly impacts on the ‘solace and comfort’ of the next of kin— that is, until interference causes mental anguish for the next of kin.”
What Is Actual Interference With A Next Of Kin’s Right To Possess Decedent’s Body?
The following scenarios generally constitute actionable interference with a next of kin’s right to possess the decedent’s body:
- Performance of an unauthorized procedure on the body
- Inadvertent disposal of the remains
- Defendant’s failure to notify the next of kin of the death.
Here, plaintiffs did not allege that any of the above interferences occurred. Although Fenton conveyed the wrong funeral home information to plaintiffs, the remains were located and transferred to the preferred funeral home on the day the decedent died. The decedent’s remains were not mishandled as contemplated under New York law.
The court stated:
Additionally, because plaintiffs are residents of Pennsylvania and could not take immediate possession of the body, the several hour delay in locating and transporting Ms. Hanna’s remains to Reddens is not the type of deprivation of “solace and comfort” of burial as contemplated by a claim sounding in a right of sepulcher, especially in light of the fact that a service was held for the decedent five days later.
Plaintiffs’ cause of action sounding in the right of sepulcher was dismissed.
Can An Action For Fraud Exist Under New York Law For Misrepresentation of the Location of A Decedent’s Remains?
Perhaps, but not in this case.
In order to state a claim for fraud under New York law facts must be alleged that indicate or permit a reasonable inference that the person had knowledge of the falsity of the representations or intended to induce reliance on the incorrect representation. Here, there were no facts alleged that Fenton had knowledge of the falsity of his representation regarding the location of decedent’s remains, or that he intended reliance upon that incorrect representation.
The complaint also failed to allege any injury or damages. Since Puccio agreed to release and transfer the remains, no damages could be inferred from any “mishandling” the decedent’s remains under New York law.