The Right of Sepulcher in the Age of Coronavirus

Leonard Melfi was a playwright best known for Oh! Calcutta! and for his many plays produced at LaMama Experimental Theater in New York’s East Village.  In his later years, he resided at the Narragansett Hotel located at 93rd Street and Broadway on Manhattan’s Upper West Side.  It was to this location that paramedics were summoned on October 24, 2001 when his niece who lived out of town tried to visit him but was unable to get him to answer the door.  Melfi was transported to Mt. Sinai Hospital where he died four hours later of congestive heart failure.

From there, Leonard Melfi’s story took a strange turn, one that not even he could have written.  Even though his patient registration form contained contact information for a close friend, the hospital failed to contact her.  As a result, no one in Melfi’s family knew that he had died.  His body remained in the hospital morgue for 30 days,  and thereafter his body was transferred to the City morgue at Bellevue Hospital.  There is no record as to whether any attempt was made at that point to contact Melfi’s family of his body’s whereabouts.  Melfi’s unclaimed body was subsequently transferred to the Nassau County Community College’s Mortuary Science Department where it was used for embalming practice by the students.  Finally, on December 20, 2001, Leonard Melfi was buried in a mass grave in Potter’s Field on Hart Island along with 150 other unclaimed bodies.

Melfi’s niece and his brother John would be informed of Leonard’s death two months later by the manager of the Narragansett Hotel. John Melfi then arranged to have his brother’s body exhumed and then held a proper funeral service at the Campbell Funeral home.  Leonard Melfi was finally laid to rest in the family plot in Binghamton, New York on April 18, 2002.    In May 2002, John Melfi filed a lawsuit against Mt. Sinai Hospital and the New York City Health and Hospitals Corporation, parent company of Bellevue, for medical malpractice, wrongful death, loss of sepulcher, fraudulent concealment and punitive damages.  We will concern ourselves here with loss of sepulcher because it is an issue that may arise again with the massive death toll and the accumulation of bodies in morgues during this time of coronavirus.

The lower court denied Mt. Sinai’s motion to dismiss the claim for loss of sepulcher (Melfi v. Mount Sinai Hosp., 877 N.Y.S.2d 300, 2009 N.Y. Slip Op. 03404), and the hospital appealed to the Appellate Division, First Department (Melfi v. Mount Sinai Hosp., 64 A.D.3d 26 (2009)).  In its decision, the court gave a detailed history for the right of sepulcher, but we will focus here specifically on the legal aspects that give rise to a claim under the right to sepulcher.  The court explained that  “the common-law right of sepulcher gives the next of kin the absolute right to the immediate possession of a decedent’s body for preservation and burial, and … damages will be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent’s body. (id. at 31).”   

The right of sepulcher is not a property right that would lead to damages and recovery under tort law but rather a quasi-possessory interest  such that damages are recoverable only for the emotional distress caused by the deprivation of the decedent’s body for proper disposition.  For damages under the right of sepulcher to accrue, two elements must be present:  “1) there must be interference with the next of kin’s immediate possession of decedent’s body and 2) the interference has caused mental anguish, which is generally presumed. Interference can arise either by unauthorized autopsy (Darcy, 202 N.Y. at 262–263, 95 N.E. 695), or by disposing of the remains inadvertently (Finley, 220 N.Y. at 257–258, 115 N.E. 715; Correa v. Maimonides Med. Ctr., 165 Misc.2d 614, 629 N.Y.S.2d 673 (Sup.Ct., Kings County 1995)), or, as in this case, by failure to notify next of kin of the death. (id, at 39).” The presumption of mental anguish suffered lies with the family member, meaning that the burden of proof shifts to the defendant to show that no such anguish occurred.

If you or your family has suffered mental anguish as a result a loss of sepulcher in New York due to the coronavirus pandemic, you should contact an attorney to assist you.  My law firm will be happy to consult with you and discuss your particular circumstances.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

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