Legal Speak

Atty. Harvey I. Lapin Bio

Atty. Harvey I. Lapin's blog

Do Not Be the Judge

Posted by Atty. Harvey I. Lapin on July 1, 2015

  On December 19, 2014, Supreme Court of Monroe County New York published its decision in the case of Gerardi v. Harris Funeral Home Inc., 2014 N.Y. Slip Op. 24424 (2014) dealing with the issue of who had the authority to control the disposition of the cremated remains of the Plaintiff’s deceased husband. The case deals with the New York state law dealing with the priority of the parties that may authorize the disposition of remains. (Public Health Law § 4201[2])

  The facts in the case are typical of these disputes. The Plaintiff was married to the deceased at the time of his death. At that time she met with employees of the Defendant, had the funeral home handle the decedent’s remains, conduct and supervise the visitation, and to perform cremation. The Plaintiff also received the bill for the funeral and professional undertaking services, and paid the bill for these services. The Plaintiff was also advised by the Funeral Home that they would retain the cremated remains until the Plaintiff instructed them about the disposition. When the Plaintiff returned to sign various documents and to request the cremated remains of her husband, the Defendant advised that the executor of the decedent's estate had priority and that the cremated remains were turned over to the executor. The will of the deceased was never probated and no executor of the will was ever appointed by the Court. Subsequently the cremated remains of the deceased were buried in the cemetery in a space with his first wife.

  The Plaintiff filed a lawsuit against the Defendant. The complaint alleges that the Defendant gave the cremated remains to an unauthorized third party. The Plaintiff asserted that the intentional, reckless, and/or negligent actions of the Defendant caused her to undergo emotional and physical distress and mental anguish and the Plaintiff sustained damage. The Plaintiff also asked for punitive damages, based on the reckless and intentional conduct of Defendant.

  The Plaintiff filed a Motion for Summary Judgment and the Defendant responded. The Judge reviewed the Motion and supporting affidavits and held as a matter law in favor of the Plaintiff. The Defendant’s Defense was that it had been contacted by the Executor and was provided with a copy of the will of the deceased and on that basis determined that the Executor had the authority to handle the disposition of the cremated remains. Unfortunately the Judge disagreed and held that the New York State Law clearly provided the widow had priority and there was no evidence to the contrary. There is no indication in the decision of whether any damages have been determined and the author suspects there is or might be a settlement. Hopefully the Defendant is covered by insurance.

  The bottom line is it is not good idea to resolve a dispute between two parties when each are claiming to have the authority to handle the disposition of a decedent’s remains. The author has always advised clients that are faced with disputes to do nothing and let the disputing parties resolve the dispute or provide a court order. It is not a good idea to be a judge in these disputes.


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