A rehabilitation facility’s “reasonable” attempts to contact a deceased patient’s family—including leaving voicemails and trying to track a P.O. Box—meant the deceased’s estate and family did not have its right to sepulcher violated when a guardian buried the decedent, a state appeals court has ruled.
In awarding certain defendants summary judgment, an Appellate Division, Second Department, panel ruled the defendants in Martin v. Ability Beyond Disability, 64948/13, “submit[ted] evidence demonstrating that their actions concerning the decedent’s burial were reasonable and made in good faith … and in compliance with Public Health Law §4201.”
In November 2012, John Alvin Martin II died while at a rehabilitation facility operated by Ability Beyond Disability. Martin II’s guardian, defendant Philip Conaty, and defendant Ability both alleged that, at the time, they had no contact information for Martin II’s family and that the family hadn’t spoken to Conaty in decades. The family has also said it only had sporadic contact with Martin II, the panel wrote.
For six days Ability staff allegedly tried to notify Martin II’s family, calling 411, leaving voicemails at possible phone numbers and reaching out to the Postal Service and police to learn more about a P.O. Box address. With no family found, Conaty held a funeral.
Two days later, Martin II’s parents, John Martin and Emma Martin, and his sister, Tuwanda Martin, learned of the death. They sued, individually, and Tuwanda Martin as the estate administratrix, alleging violation of the right of sepulcher, which affords a deceased’s next of kin the right to possession of the body for preservation and burial.
Justices Ruth Balkin, Sheri Roman, Sandra Sgroi and Colleen Duffy noted in their Aug. 16 decision that under the state sepulcher law “if a decedent’s surviving parents are not ‘reasonably available’ … then a court-appointed guardian has the right to control the disposition of the decedent’s remains.”
“The defendants’ submissions demonstrated, prima facie, that, under the circumstances presented, the plaintiffs were not reasonably available,” the panel wrote. “In opposition, the plaintiffs failed to raise a triable issue of fact.”
The panel reversed the 2015 decision of Westchester County Supreme Court Justice William Giacomo, to the extent that he had denied summary judgment to defendants in regard to allegations made by the administratrix, John Martin and Emma Martin.
“Ability Beyond is vindicated. The good people there were devastated by their life-long patient’s loss and then hit with this baseless lawsuit,” said Greg Saracino, a Milber Makris Plousadis & Seiden partner who represented Ability Beyond Disability, in an email. He added, “The court really had to delve into the legislative history of the Public Health law to determine whether the issue of reasonableness could be decided as a matter of law.”
Steven Kimmel of Washingtonville represented Conaty. Robert Tolchin of the Berkman Law Office represented the estate administratrix and family members. Neither could be reached for comment.