Preview
FILED: BRONX COUNTY CLERK 07/27/2018 10:52 AM INDEX NO. 22567/2016E
NYSCEF DOC. NO. 122 Mtn. Seq.07/27/2018
RECEIVED NYSCEF:
NEW YORK SUPREME COURT — COUNTY OF BRONX # 06
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX: PART LPM
X
LITTLE, DONALD Index N2. 22567/2016E
- against - Hon. LUCINDO SUAREZ.
MCCALL'S BRONXWOOD FUNERAL HOME, Justice.
INC.
X
The following papers numbered 1 to 4 read on this motion, REARGUE/RENEW/RESETTLE,
noticed on June 12, 2018 and duly submitted as No. 55 on the Motion Calendar of July 12, 2018
PAPERS NUMBERED
Notice of Motion — Exhibits and Affidavits Annexed 1, 2
Notice of Cross-Motion — Exhibits and Affidavits Annexed
Answering Affidavit and Exhibits 3
Replying Affidavit and Exhibits 4
Filed Papers
Memoranda of Law
Stipulations
Upon the foregoing papers, defendant's motion for leave to reargue the decision and order of the
undersigned dated May 7, 2018 is granted, in accordance with the annexed decision and order.
Dated: 07/25/2018
LUCINDO SUAREZ, J.S.C.
Check one: Motion is: Check if appropriate:
Case Disposed in Entirety it Granted o GIP o Schedule Appearance o Settle Order
Case Still Active o Denied o Other o Fiduciary Appointment o Submit Order
Referee Appointment
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX: I.A.S. PART LPM
X
DONALD LITTLE,
DECISION AND ORDER
Plaintiff,
- against - Index No. 22567/2016E
MCCALL'S BRONXWOOD FUNERAL HOME, INC.,
Defendants.
X
PRESENT: Hon. Lucindo Suarez
Upon defendant's notice of motion dated May 18, 2018 and the affirmation submitted in
support thereof; plaintiff's affirmation in opposition dated July 2, 2018; defendant's affirmation
in reply dated July 12, 2018; and due deliberation; the court finds:
In this action alleging interference with plaintiff's right to sepulcher, it is alleged that
defendant funeral home displayed plaintiff's decedent's body at the wrong open-casket funeral
and then cremated the remains in contravention of the wishes expressed to defendant. Defendant
previously moved for partial summary judgment on the issue of punitive damages. Defendant
now moves for leave to reargue the May 7, 2018 decision and order of the undersigned which
denied its motion. Plaintiff opposes, arguing that defendant's reckless indifference and/or
conscious disregard is premised on its failure to maintain a proper logging system and its failure
to properly implement the existing logging system and supports the imposition of punitive
damages.
Defendant's owner testified that when a body is received, the funeral home creates a log
sheet and the body is tagged, if not already tagged when received. The tag remains in place and
is not removed. Defendant's manager and funeral director testified that when a body is received,
any existing toe tag is examined to ensure it matches the name given by the family, and it is the
funeral director's responsibility to ensure delivery of the correct body. Defendant adds a second
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toe tag, even if one is already present, as a back-up identification method. Plaintiff's decedent's
body was retrieved on December 25. Defendant did not realize that plaintiff's decedent's body
had been disposed of until January 5, when it started preparations for plaintiff's decedent's
viewing. Instead, plaintiffs decedent's body was displayed at the funeral of Valjean McDonald
on December 29 and then cremated as per the directions of the McDonald family. Defendant did
not notify plaintiff of the errors for two and a half hours, and only after it was discovered that the
funeral home had never received McDonald's body. Upon dispatch of an employee to retrieve
McDonald's body and the receipt of McDonald's body, the funeral director called plaintiff.
On the prior decision, the undersigned found that to prepare plaintiff's decedent's body
for McDonald's funeral, defendant failed to properly transcribe or entirely disregarded two toe
tags and disregarded the absence of evidence of possession of McDonald's body in the first place
and that plaintiff raised an issue of fact with respect to defendant's gross negligence sufficient to
warrant denial of summary relief. See Plunkett v. NYU Downtown Hasp., 21 A.D.3d 1022, 801
N.Y.S.2d 354 (2d Dep't 2005). The funeral director had no explanation for how the error
occurred and the court found her testimony raised a question as to whether defendant had
opportunities to discover and correct the error, given the double toe tag and log sheet systems.
Such evidence, however, merely raised issues as to negligence, and was not instructive as to
whether a wrongful motive could be discerned from defendant's conduct.
Gross negligence will support the imposition of punitive damages. See Nesbeth v. St.
Luke's Hasp., 2014 NY Slip Op 3050I(U) (Sup Ct N.Y. County Mar. 4, 2014). "[G]ross
negligence consists of 'conduct that evinces a reckless disregard for the rights of others or
smacks' of intentional wrongdoing." Assured Guar. (UK) Ltd v. .I.P. Morgan Inv. Mgt Inc., 80
A.D.3d 293, 305, 915 N.Y.S.2d 7,9 (1st Dep't 2010) (citation omitted). It "is the commission or
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omission of an act or duty owing by one person to a second party which discloses a failure to
exercise slight diligence. In other words, the act or omission must be of an aggravated character
as distinguished from the failure to exercise ordinary care." New York Fruit Market v. Western
Union Tel Co., 190 A.D. 60, 64, 179 N.Y.S. 483, 485 (3rd Dep't 1919) (citation omitted).
Where the conduct as a whole shows "such conscious indifference to the effect of his acts on the
minds of the family of the deceased" to be deemed willful, malicious and wanton, punitive
damages may be awarded. Gostkowski v. Roman Catholic Church of Sacred Hearts ofJesus &
Mary, 262 N.Y. 320, 323-24, 186 N.E. 798, 799 (1933).
Punitive damages are available
[w]here the defendant's wrongdoing has been intentional and deliberate, and has
the character of outrage frequently associated with crime.. . Something more
than the mere commission of a tort is always required for punitive damages. There
must be circumstances of aggravation or outrage, such as spite or "malice," or a
fraudulent or evil motive on the part of the defendant, or such a conscious and
deliberate disregard of the interests of others that the conduct may be called wilful
or wanton.
Liberman v. Riverside Mem. Chapel, 225 A.D.2d 283, 291, 650 N.Y.S.2d 194, 199 (1st Dep't
1996). A finding of gross negligence, however, does not end the inquiry. In the case of gross
negligence, the imposition of punitive damages still requires a "high degree of moral turpitude,
wanton dishonesty and utter malice." Leighton v. Lowenberg, 103 A.D.3d 530, 531, 960
N.Y.S.2d 87, 88 (1st Dep't 2013). "Even where there is gross negligence, punitive damages are
awarded only in 'singularly rare cases' such as cases involving an improper state of mind or
malice or cases involving wrongdoing to the public." Bothmer v. Schooler, Weinstein, Minsky &
Lester, P.C., 266 A.D.2d 154, 154, 698 N.Y.S.2d 486, 487 (1st Dep't 1999). "[U]nless a wrong
motive exists, there is no basis for such award." Wigton v. Metro. S. R. Co., 38 A.D. 207, 209, 56
N.Y.S. 647, 648 (1st Dep't 1899) (citation omitted).
The extent and magnitude of evidence of a pattern of behavior may suffice to
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demonstrate such "callous indifference" as will support a punitive damages claim. See Garber v.
Lynn, 79 A.D.3d 401,913 N.Y.S.2d 175 (1st Dep't 2010). However, la] defendant must
'manifest evil or malicious conduct beyond any breach of professional duty." Nesbeth v. St.
Luke's Hosp., 2014 NY Slip Op 3050I(U), at *19 (Sup Ct N.Y. County Mar. 4,2014), citing
Dupree v. Giugliano, 20 N.Y.3d 921, 924, 982 N.E.2d 74, 958 N.Y.S.2d 312 (2012). The
available evidence must "give rise to a possible inference" that defendant engaged in behavior
coupled with such wrongful motive. See Vunk v. Long Island Diagnostic, NYLJ, Jul. 3, 2001, at
5, col 2 (Sup Ct, Suffolk County, Oliver, J.). It is the defendant's moral culpability that punitive
damages are designed to address. See Nooger v. Jay-Dee Fast Delivery, 251 A.D.2d 307, 673
N.Y.S.2d 1006 (2d Dep't 1998); Kubert v. Specht, 39 Misc.3d 1208(A), 2013 NY Slip Op
50544(U) (Sup Ct N.Y. County Apr. 10,2013).
Likewise, evidence of or permitting the reasonable inference of reckless disregard, "the
conscious or intentional doing of an act of an unreasonable character in disregard of a known or
obvious risk so great as to make it highly probable that harm would follow, and done with
conscious indifference to the outcome," Szczerbiak v. Pilat, 90 N.Y.2d 553, 557, 686 N.E.2d
1346, 1349, 664 N.Y.S.2d 252, 255 (1997), is absent here.
Despite ample evidence of defendant's negligence, there is nothing in the record from
which to infer that in addition to defendant's failure to follow its own protocols, such failure was
the product of deliberate indifference or defendant was conscious of and indifferent to the
consequences attendant to such failure. The threshold for the imposition of punitive damages is
simply higher than the court allowed for on the previous motion. Cases such as these invite the
conflation of the sensitivity of the subject matter with the severity of defendant's conduct. The
moral culpability derived from the motivation attendant to such conduct must be evident from
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the record to support the imposition of punitive damages, however, and such is lacking on the
record as has been developed herein.
Accordingly, it is
ORDERED, that defendant's motion for leave to reargue the decision and order of the
undersigned dated May 7, 2018 is granted; and it is further
ORDERED, that upon such reargument, defendant's motion for summary judgment
dismissing plaintiff's claim for punitive damages is granted; and it is further
ORDERED, that the Clerk of the Court is directed to enter judgment in favor of
defendant dismissing plaintiff's claim for punitive damages.
This constitutes the decision and order of the court.
Dated: July 25, 2018
Lucindo Suarez, J.S.C.
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Preview
FILED: BRONX COUNTY CLERK 07/27/2018 10:52 AM INDEX NO. 22567/2016E NYSCEF DOC. NO. 122 Mtn. Seq.07/27/2018 RECEIVED NYSCEF: NEW YORK SUPREME COURT — COUNTY OF BRONX # 06 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: PART LPM X LITTLE, DONALD Index N2. 22567/2016E - against - Hon. LUCINDO SUAREZ. MCCALL'S BRONXWOOD FUNERAL HOME, Justice. INC. X The following papers numbered 1 to 4 read on this motion, REARGUE/RENEW/RESETTLE, noticed on June 12, 2018 and duly submitted as No. 55 on the Motion Calendar of July 12, 2018 PAPERS NUMBERED Notice of Motion — Exhibits and Affidavits Annexed 1, 2 Notice of Cross-Motion — Exhibits and Affidavits Annexed Answering Affidavit and Exhibits 3 Replying Affidavit and Exhibits 4 Filed Papers Memoranda of Law Stipulations Upon the foregoing papers, defendant's motion for leave to reargue the decision and order of the undersigned dated May 7, 2018 is granted, in accordance with the annexed decision and order. Dated: 07/25/2018 LUCINDO SUAREZ, J.S.C. Check one: Motion is: Check if appropriate: Case Disposed in Entirety it Granted o GIP o Schedule Appearance o Settle Order Case Still Active o Denied o Other o Fiduciary Appointment o Submit Order Referee Appointment 1 of 6 FILED: BRONX COUNTY CLERK 07/27/2018 10:52 AM INDEX NO. 22567/2016E NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 07/27/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: I.A.S. PART LPM X DONALD LITTLE, DECISION AND ORDER Plaintiff, - against - Index No. 22567/2016E MCCALL'S BRONXWOOD FUNERAL HOME, INC., Defendants. X PRESENT: Hon. Lucindo Suarez Upon defendant's notice of motion dated May 18, 2018 and the affirmation submitted in support thereof; plaintiff's affirmation in opposition dated July 2, 2018; defendant's affirmation in reply dated July 12, 2018; and due deliberation; the court finds: In this action alleging interference with plaintiff's right to sepulcher, it is alleged that defendant funeral home displayed plaintiff's decedent's body at the wrong open-casket funeral and then cremated the remains in contravention of the wishes expressed to defendant. Defendant previously moved for partial summary judgment on the issue of punitive damages. Defendant now moves for leave to reargue the May 7, 2018 decision and order of the undersigned which denied its motion. Plaintiff opposes, arguing that defendant's reckless indifference and/or conscious disregard is premised on its failure to maintain a proper logging system and its failure to properly implement the existing logging system and supports the imposition of punitive damages. Defendant's owner testified that when a body is received, the funeral home creates a log sheet and the body is tagged, if not already tagged when received. The tag remains in place and is not removed. Defendant's manager and funeral director testified that when a body is received, any existing toe tag is examined to ensure it matches the name given by the family, and it is the funeral director's responsibility to ensure delivery of the correct body. Defendant adds a second 2 of 6 FILED: BRONX COUNTY CLERK 07/27/2018 10:52 AM INDEX NO. 22567/2016E NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 07/27/2018 toe tag, even if one is already present, as a back-up identification method. Plaintiff's decedent's body was retrieved on December 25. Defendant did not realize that plaintiff's decedent's body had been disposed of until January 5, when it started preparations for plaintiff's decedent's viewing. Instead, plaintiffs decedent's body was displayed at the funeral of Valjean McDonald on December 29 and then cremated as per the directions of the McDonald family. Defendant did not notify plaintiff of the errors for two and a half hours, and only after it was discovered that the funeral home had never received McDonald's body. Upon dispatch of an employee to retrieve McDonald's body and the receipt of McDonald's body, the funeral director called plaintiff. On the prior decision, the undersigned found that to prepare plaintiff's decedent's body for McDonald's funeral, defendant failed to properly transcribe or entirely disregarded two toe tags and disregarded the absence of evidence of possession of McDonald's body in the first place and that plaintiff raised an issue of fact with respect to defendant's gross negligence sufficient to warrant denial of summary relief. See Plunkett v. NYU Downtown Hasp., 21 A.D.3d 1022, 801 N.Y.S.2d 354 (2d Dep't 2005). The funeral director had no explanation for how the error occurred and the court found her testimony raised a question as to whether defendant had opportunities to discover and correct the error, given the double toe tag and log sheet systems. Such evidence, however, merely raised issues as to negligence, and was not instructive as to whether a wrongful motive could be discerned from defendant's conduct. Gross negligence will support the imposition of punitive damages. See Nesbeth v. St. Luke's Hasp., 2014 NY Slip Op 3050I(U) (Sup Ct N.Y. County Mar. 4, 2014). "[G]ross negligence consists of 'conduct that evinces a reckless disregard for the rights of others or smacks' of intentional wrongdoing." Assured Guar. (UK) Ltd v. .I.P. Morgan Inv. Mgt Inc., 80 A.D.3d 293, 305, 915 N.Y.S.2d 7,9 (1st Dep't 2010) (citation omitted). It "is the commission or 2 3 of 6 FILED: BRONX COUNTY CLERK 07/27/2018 10:52 AM INDEX NO. 22567/2016E NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 07/27/2018 omission of an act or duty owing by one person to a second party which discloses a failure to exercise slight diligence. In other words, the act or omission must be of an aggravated character as distinguished from the failure to exercise ordinary care." New York Fruit Market v. Western Union Tel Co., 190 A.D. 60, 64, 179 N.Y.S. 483, 485 (3rd Dep't 1919) (citation omitted). Where the conduct as a whole shows "such conscious indifference to the effect of his acts on the minds of the family of the deceased" to be deemed willful, malicious and wanton, punitive damages may be awarded. Gostkowski v. Roman Catholic Church of Sacred Hearts ofJesus & Mary, 262 N.Y. 320, 323-24, 186 N.E. 798, 799 (1933). Punitive damages are available [w]here the defendant's wrongdoing has been intentional and deliberate, and has the character of outrage frequently associated with crime.. . Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or "malice," or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton. Liberman v. Riverside Mem. Chapel, 225 A.D.2d 283, 291, 650 N.Y.S.2d 194, 199 (1st Dep't 1996). A finding of gross negligence, however, does not end the inquiry. In the case of gross negligence, the imposition of punitive damages still requires a "high degree of moral turpitude, wanton dishonesty and utter malice." Leighton v. Lowenberg, 103 A.D.3d 530, 531, 960 N.Y.S.2d 87, 88 (1st Dep't 2013). "Even where there is gross negligence, punitive damages are awarded only in 'singularly rare cases' such as cases involving an improper state of mind or malice or cases involving wrongdoing to the public." Bothmer v. Schooler, Weinstein, Minsky & Lester, P.C., 266 A.D.2d 154, 154, 698 N.Y.S.2d 486, 487 (1st Dep't 1999). "[U]nless a wrong motive exists, there is no basis for such award." Wigton v. Metro. S. R. Co., 38 A.D. 207, 209, 56 N.Y.S. 647, 648 (1st Dep't 1899) (citation omitted). The extent and magnitude of evidence of a pattern of behavior may suffice to 3 4 of 6 FILED: BRONX COUNTY CLERK 07/27/2018 10:52 AM INDEX NO. 22567/2016E NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 07/27/2018 demonstrate such "callous indifference" as will support a punitive damages claim. See Garber v. Lynn, 79 A.D.3d 401,913 N.Y.S.2d 175 (1st Dep't 2010). However, la] defendant must 'manifest evil or malicious conduct beyond any breach of professional duty." Nesbeth v. St. Luke's Hosp., 2014 NY Slip Op 3050I(U), at *19 (Sup Ct N.Y. County Mar. 4,2014), citing Dupree v. Giugliano, 20 N.Y.3d 921, 924, 982 N.E.2d 74, 958 N.Y.S.2d 312 (2012). The available evidence must "give rise to a possible inference" that defendant engaged in behavior coupled with such wrongful motive. See Vunk v. Long Island Diagnostic, NYLJ, Jul. 3, 2001, at 5, col 2 (Sup Ct, Suffolk County, Oliver, J.). It is the defendant's moral culpability that punitive damages are designed to address. See Nooger v. Jay-Dee Fast Delivery, 251 A.D.2d 307, 673 N.Y.S.2d 1006 (2d Dep't 1998); Kubert v. Specht, 39 Misc.3d 1208(A), 2013 NY Slip Op 50544(U) (Sup Ct N.Y. County Apr. 10,2013). Likewise, evidence of or permitting the reasonable inference of reckless disregard, "the conscious or intentional doing of an act of an unreasonable character in disregard of a known or obvious risk so great as to make it highly probable that harm would follow, and done with conscious indifference to the outcome," Szczerbiak v. Pilat, 90 N.Y.2d 553, 557, 686 N.E.2d 1346, 1349, 664 N.Y.S.2d 252, 255 (1997), is absent here. Despite ample evidence of defendant's negligence, there is nothing in the record from which to infer that in addition to defendant's failure to follow its own protocols, such failure was the product of deliberate indifference or defendant was conscious of and indifferent to the consequences attendant to such failure. The threshold for the imposition of punitive damages is simply higher than the court allowed for on the previous motion. Cases such as these invite the conflation of the sensitivity of the subject matter with the severity of defendant's conduct. The moral culpability derived from the motivation attendant to such conduct must be evident from 4 5 of 6 FILED: BRONX COUNTY CLERK 07/27/2018 10:52 AM INDEX NO. 22567/2016E NYSCEF DOC. NO. 122 RECEIVED NYSCEF: 07/27/2018 the record to support the imposition of punitive damages, however, and such is lacking on the record as has been developed herein. Accordingly, it is ORDERED, that defendant's motion for leave to reargue the decision and order of the undersigned dated May 7, 2018 is granted; and it is further ORDERED, that upon such reargument, defendant's motion for summary judgment dismissing plaintiff's claim for punitive damages is granted; and it is further ORDERED, that the Clerk of the Court is directed to enter judgment in favor of defendant dismissing plaintiff's claim for punitive damages. This constitutes the decision and order of the court. Dated: July 25, 2018 Lucindo Suarez, J.S.C. 5 6 of 6