Jury Award Reduced In NYC Loss of Sepulcher Case

The City of New York improperly released the body of a 51 year-old male to a funeral home in Pennsylvania, where he was ultimately buried. The plaintiff-decedent’s mother had been informed that her son had died, and two of the plaintiff-decedent’s siblings had already identified the body at the medical examiner’s office before the body was released to the PA funeral home. The body was exhumed several days later and returned to New York. However, due to decomposition, it had to be cremated.

Loss of Sepulcher

A “loss of sepulcher” occurs when the next of kin of the deceased is deprived of the right to choose and control the burial, cremation, or other final disposition of a dead body.

Under New York Law, the next of kin of a decedent can commence a lawsuit for a violation of his or her right of sepulcher when

1. a next of kin’s right to immediate possession of a decedent’s body is interfered with, and
2. the interference causes mental anguish. New York courts have held that interference with a next of kin’s right of sepulcher can arise under the following circumstances: 1) unauthorized autopsy; 2) inadvertent disposition of remains; and
3. failure to notify next of kin of the death.

In Jones v. City of New York, the jury awarded the plaintiff $800,000 for past emotional pain and suffering arising from a loss of sepulcher. On appeal, however, the Court held that the award deviates materially from what is reasonable compensation. The Third Department ruled that it would vacate the award and order a new trial on damages unless the plaintiff stipulated to accept a reduced award of $400,000.

Jones v. City of New York, 80 AD3d 416 (3d Dept. 2011).