This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 96
Andre Shipley et al.,
            Respondents,
        v.
City of New York et al.,
            Appellants.




          Ronald E. Sternberg, for appellants.
          Marvin Ben-Aron, for respondents.
          National Association of Medical Examiners, amicus
curiae.




PIGOTT, J.:
          At issue on this appeal is whether a medical examiner
has a mandated obligation -- pursuant to the New York Public
Health Law and a next of kin's common-law right to immediate
possession of a decedent's body for preservation and burial
(commonly known as the "right of sepulcher") -- to notify a

                              - 1 -
                               - 2 -                           No. 96

decedent's next of kin that, although a decedent's body is
available for burial, one or more organs and/or tissues have been
retained for further examination and testing as part of an
authorized autopsy.   We hold that no such obligation exists.
                                I.
           The tragic and unfortunate events from which this
litigation originated occurred on January 9, 2005, when the
decedent Jesse Shipley, a 17-year-old high school student, was
killed in an automobile accident in Staten Island, New York.      Dr.
Stephen de Roux, a forensic pathologist and a medical examiner
employed by the Office of the New York City Medical Examiner,
conducted an autopsy of decedent the day following the accident
at the Richmond County Mortuary.
           The medical examiner spoke with decedent's father,
plaintiff Andre Shipley, prior to conducting the autopsy.    He
apprised Mr. Shipley of his intentions and, even though it was
not required, obtained Mr. Shipley's consent to perform the
autopsy.   Mr. Shipley asked the medical examiner to make
decedent's body as "presentable as possible" for the funeral.
During the autopsy, the medical examiner removed, among other
organs, decedent's brain and "fixed" it in formalin1 in a jar


     1
        In the amicus curiae brief submitted to this Court, the
National Association of Medical Examiners explains that fixation
in formalin fluid for two weeks allows a medical examiner to
properly analyze brain tissues. The fixation process, along with
the subsequent neuropathological examination, routinely extends
beyond the body being released to a funeral home after autopsy.

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                                - 3 -                          No. 96

separate from tissue samples he had taken of other organs.2     The
jar was labeled with decedent's name and the date of the autopsy,
and was placed in a cabinet in the autopsy room.    The medical
examiner's routine practice was to wait until the cabinet had
accumulated at least six specimens before contacting a
neuropathologist, Dr. Hernando Mena, who would at that point
travel to Staten Island in order to conduct a neuropathologic
examination of the brain specimens.
            Once decedent's autopsy had been conducted, funeral
home personnel retrieved decedent's body from the mortuary and a
funeral was held on January 13, 2005.
            In March 2005, forensic science students from
decedent's high school took a field trip to the Richmond County
Mortuary.    During a tour of the autopsy room, some of the
students observed the specimen jar holding decedent's brain.
This information was relayed to decedent's sister, Shannon, who
told her parents.    On March 9, 2005, Dr. Mena examined the
specimen and concluded that decedent had died of multiple blunt



     2
       The medical examiner explained at his deposition that he
removed blood, bile, gastric contents, liver and vitreous humor
from decedent's body and sent them to the toxicology lab. He
also took samples from certain organs and placed the pieces in a
histology stock jar. This ensured that the medical examiner
could microscopically examine those tissues after the body's
burial. The medical examiner typically retains these samples for
approximately three years. The organs and tissues not retained
by the medical examiner are typically placed in a red "biohazard"
bag, which is then placed inside the body before the incision is
sewn up.

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                               - 4 -                          No. 96

trauma to the head.
                                II.
          The Shipleys3 commenced this action against the City of
New York and the Office of the New York City Medical Examiner
(collectively, the City), alleging negligent infliction of
emotional distress resulting from the display and alleged
mishandling and withholding of their son's brain.   Following
discovery, the City moved for summary judgment dismissing the
complaint for failure to state a cause of action, arguing that,
based on the complaint's language, the Shipleys were asserting
that the City interfered with the Shipleys' common-law right of
sepulcher.   The City argued that the medical examiner had the
authority to conduct the autopsy, had received the consent of Mr.
Shipley to do so in any event, and that the removal and retention
of the brain by the medical examiner was authorized by law.     The
Shipleys countered that even assuming the medical examiner had
the authority to conduct the autopsy, he had "mishandled"
decedent's organs and "unlawfully interfered" with the Shipleys'
right to decedent's "whole body."
          Supreme Court denied the City's motion, holding that
the City failed to establish as a matter of law that decedent's
brain was lawfully retained for scientific purposes and that a


     3
       Although Shannon is listed as a plaintiff on the
complaint, she was dismissed from the action on the ground of
lack of standing. Therefore, use of the name "Shipleys" will
refer to plaintiffs Andre and Korisha Shipley.

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                                - 5 -                        No. 96

question of fact existed as to whether the City interfered with
the Shipleys' right of sepulcher when it failed to apprise the
Shipleys before their son's burial that his brain had been
removed and was in the possession of the medical examiner (2009
WL 7401469, 2009 NY Misc LEXIS 6586 [Sup Ct, Richmond County
2009]).
          The Appellate Division modified by deleting the
provision of Supreme Court's order denying the City's motion for
summary judgment seeking dismissal of so much of plaintiffs'
first cause of action as was to recover damages for unauthorized
withholding, mutilation, and display of decedent's body parts,
and granting that branch of the motion, and, as so modified,
affirmed (80 AD3d 171, 180 [2d Dept 2010]).
          As relevant here, the Appellate Division held that the
autopsy of decedent was authorized, even if Mr. Shipley had not
consented to it, because the medical examiner had the statutory
authority to exercise his discretion in performing the autopsy
and removing and retaining organs for further examination and
testing (see id. at 175-176).   Nonetheless, according to the
Appellate Division, the medical examiner had "the mandated
obligation, pursuant to Public Health Law § 4215 (1) and the next
of kin's common-law right of sepulcher, to turn over the
decedent's remains to the next of kin for preservation and proper
burial once the legitimate purposes for the retention of those
remains [had] been fulfilled" (id. at 178).   The court deemed


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                               - 6 -                         No. 96

this obligation to be not only "ministerial in nature" but also
one that was "clearly for the benefit of, and . . . owed directly
to, the next of kin," and this obligation could have been met
with "the simple act of notifying the next of kin that, while the
body [was] available for burial, one or more organs [had] been
removed for further examination" (id.).   In the Appellate
Division's view, such notification would have given the Shipleys
an opportunity "to make an informed decision regarding whether to
bury the body promptly without the missing organs and then either
accept the organs at a later date or authorize the medical
examiner to dispose of them, or alternatively, to wait until such
time as the organs and body can be returned to them together . .
. for burial or other appropriate disposition by the next of kin"
(id.).
          The case thereafter proceeded to trial on the sole
issue of whether the medical examiner returned decedent's body to
the Shipleys without informing them that the medical examiner had
retained decedent's brain (and therefore violated the Shipleys'
right of sepulcher).4   The City called one witness, Dr. de Roux,
who testified that the brain was the only organ that was removed
for neuropathologic examination by Dr. Mena, but that he had



     4
       The Appellate Division held that the Shipleys failed to
raise a triable issue of fact in response to the City's prima
facie showing that decedent's brain was not mishandled or put on
"public display," and precluded the Shipleys from pursuing those
theories of liability at trial (80 AD3d at 179).

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                                - 7 -                        No. 96

obtained small samples of other organs and placed them in
formalin.   He retained the latter organ samples so that they
could be microscopically examined at a later date in the event a
question arose as to decedent's cause of death.
            At the conclusion of the defense's case, the Shipleys
moved for a directed verdict on the issue of liability, relying
on the medical examiner's testimony that the Shipleys were never
informed that the medical examiner had retained decedent's brain
and other organs.    The City also moved for a directed verdict,
arguing, among other things, that there was insufficient evidence
to establish a special relationship with regard to the right of
sepulcher claim.    Supreme Court granted the Shipleys' motion for
a directed verdict as to liability.
            Following a trial on damages, resulting in a verdict of
$1 million for the Shipleys, the City's motion to set aside the
verdict was denied.    The Appellate Division affirmed the judgment
entered upon the Shipleys' stipulation to a reduced award of
damages (105 AD3d 936, 936-937 [2nd Dept 2013]).    The Shipleys
consented to the reduced award.    This Court granted the City
leave to appeal, bringing up for review the Appellate Division's
order denying, in part, the City's motion for summary judgment.
                                III.
            A medical examiner's authority to conduct autopsies is
largely statutory.    Title II of article 42 of the Public Health
Law identifies those individuals who possess the legal authority


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                               - 8 -                         No. 96

to perform autopsy and dissection (see Public Health Law §§ 4209;
4210), and delineates criminal penalties for unlawful dissection
(see Public Health Law § 4210-a) and civil penalties for
unauthorized autopsies conducted in good faith (see Public Health
Law § 4210-b).   The Public Health Law also contains a religious
exemption that prohibits a dissection or autopsy "in the absence
of a compelling public necessity" where a "surviving relative or
friend of the deceased" objects on the ground that the procedure
is "contrary to the religious belief of the decedent" (Public
Health Law § 4210-c).5
          Public Health Law § 4210 provides that a county medical
examiner, or one acting at his or her direction, has the right to
dissect the body of a deceased person (see Public Health Law §
4210 [2] [c]).   Additionally, New York City Charter § 557 (f) (1)
states, as relevant here, that the chief medical examiner
possesses "such powers and duties as may be provided by law in
respect to the bodies of person[s] dying from criminal violence,
by accident, by suicide, suddenly when in apparent health, when
unattended by a physician, in a correctional facility or in any
suspicious or unusual manner . . ." (emphasis supplied).    Medical
examiners possess the discretionary authority to determine when
an autopsy is necessary, and, when indicated, "the autopsy shall
include toxicologic, histologic, microbiologic and serologic


     5
       The Shipleys did not raise a religious objection to the
dissection or autopsy.

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                              - 9 -                            No. 96

examinations" (Administrative Code of City of NY § 17-203).     The
statutory authority of a medical examiner to conduct dissection
and autopsy is, therefore, fairly broad, as is the right of the
medical examiner to remove and retain an organ, like the brain,
for further examination and testing (see id. at § 557 [f] [3]
[permitting the chief medical examiner to conduct "forensic and
related testing and analysis" and perform "pathology, histology
and toxicology testing and analysis" along with "determining the
cause or manner of injuries and/or death"]).
          The medical examiner clearly had the authority to
conduct the autopsy in this instance.   As a public employee
engaging in a governmental function, his determination to conduct
the autopsy and his decision to remove the brain and other organs
for further study constituted "discretionary acts," meaning that
his conduct involved the "'exercise of reasoned judgment'" that
"may not result in the [City's] liability even [if] the conduct
[was] negligent" (Valdez v City of New York, 18 NY3d 69, 76
[2011], quoting Lauer v City of New York, 95 NY2d 95, 99 [2000]).
The pertinent issue in this appeal, however, is whether, in the
exercise of his statutory duties and obligations, the medical
examiner nevertheless had a common-law and statutory duty to
notify the Shipleys of his retention of certain organs and
tissues, and therefore violated the Shipleys' common-law right of
sepulcher and the Public Health Law when he failed to do so.




                              - 9 -
                             - 10 -                          No. 96

                               IV.
          The common-law right of sepulcher affords the
deceased's next of kin an "absolute right to the immediate
possession of a decedent's body for preservation and burial, and
damages may be awarded against any person who interferes with
that right or improperly deals with the decedent's body" (Mack v
Brown, 82 AD3d 133, 137 [2d Dept 2011] [citations omitted]; see
Darcy v Presbyterian Hosp., 202 NY 259, 263 [1911], rearg denied
203 NY 547 [1911] [recognizing a cause of action for interference
and prevention of next of kin's right to receive the body of the
deceased]; Shepherd v Whitestar Dev. Corp., 113 AD3d 1078, 1080
[4th Dept 2014]; Melfi v Mt. Sinai Hosp., 64 AD3d 26, 31 [1st
Dept 2009]; LaMore v Sumner, 46 AD3d 1262, 1264 [3d Dept 2007]).
The right itself "is less a quasi-property right and more the
legal right of the surviving next of kin to find 'solace and
comfort' in the ritual of burial" (Melfi, 64 AD3d at 32).
Damages are limited to the emotional suffering, mental anguish
and psychological injuries and physical consequences thereof
experienced by the next of kin as a result of the interference
with the right of sepulcher (see id. at 32, 36-37; see also PJI
3:6.1).
          Decedent's body was returned to the Shipleys once the
authorized autopsy had been conducted.   The body was thus made
available to the Shipleys for preservation and burial.    Because
the right of sepulcher is premised on the next of kin's right to
possess the body for preservation and burial (or other proper

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                              - 11 -                        No. 96

disposition), and is geared toward affording the next of kin
solace and comfort in the ritual of burying or otherwise properly
disposing of the body, it is the act of depriving the next of kin
of the body, and not the deprivation of organ or tissue samples
within the body, that constitutes a violation of the right of
sepulcher.6
           To be sure, a cause of action for violation of the
right of sepulcher will lie where there has been an "unauthorized
autopsy" (Darcy, 202 NY at 265), which the courts of this state
consider an "unlawful mutilation" (Grawunder v Beth Israel Hosp.
Assn., 242 AD 56, 60-61 [2d Dept 1934], affd 266 NY 605, 606
[1935]).   However, the autopsy in this instance, as conceded by

     6
        The dissent's reliance on Hendriksen v Roosevelt Hosp.
(297 F Supp 1142 [SD NY 1969]) for the proposition that the
deceased's next of kin must first consent to a medical examiner's
retention of parts of the body is misplaced. In Hendriksen, the
defendant hospital and its physician did not possess the legal
authority to conduct an autopsy in the first instance, and,
therefore, they obtained written consent from the decedent's next
of kin. That consent provided that "'[p]ermission is hereby
granted for a complete autopsy to include examination (by scalp
incision) of the central nervous system,'" which the plaintiff
executed for the purpose of ascertaining the cause of death (id.
at 1143-1144). The only issue in Hendriksen was whether the
defendants' retention of decedent's internal organs and viscera
exceeded the scope of the written consent. Although the
Hendriksen court relied on Hassard v Lehane (143 AD 424 [1st Dept
1911]) for the (erroneous) proposition Hassard "established" that
consent was necessary for "the retention of parts of the body"
(Hendriksen, 297 F Supp at 1144), a closer examination reveals
that Hassard was nothing more than a wrongful autopsy case (see
Hassard, 143 AD at 425-426). As such, the Hassard court's
statement -- unsupported by any authority -- that "even if the
autopsy had been authorized . . ., that did not . . . justify the
removal and detention of any of the organs of the decedent" (id.
at 426), is plainly dicta.

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                              - 12 -                          No. 96

the Shipleys, was plainly authorized.   Indeed, there is nothing
in our common law jurisprudence that mandated that the medical
examiner do anything more than produce the decedent's body for a
proper disposition.   Thus, the only way there could be a
violation of the Shipleys' right of sepulcher would be if the
common law directed the medical examiner to produce not only
decedent's body for proper disposition once the authorized
autopsy was conducted, but the organs and tissue samples as well.
          The Shipleys claim that, notwithstanding the medical
examiner's statutory authorization to conduct autopsies and
retain organs for examination and testing, both the common-law
right of sepulcher and Public Health Law § 4215 (1) require that
the brain and tissue samples removed during the autopsy be
returned to a decedent's next of kin and only they, the next of
kin, may direct the manner of their disposition.   Public Health
Law § 4215 (1) states that:
          "[i]n all cases in which a dissection has
          been made, the provisions of this article
          [42, entitled "Cadavers"], requiring the
          burial or other lawful disposition of a body
          of a deceased person, and the provisions of
          law providing for the punishment of
          interference with or injuries to it, apply
          equally to the remains of the body after
          dissection as soon as the lawful purposes of
          such dissection have been accomplished"
          (emphasis supplied).
          The Appellate Division held that the medical examiner
had a "mandatory obligation" and "ministerial" duty pursuant to
the common-law right of sepulcher and Public Health Law § 4215
(1) to turn over to the Shipleys the organs that he removed from

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                               - 13 -                           No. 96

decedent, once he had completed the dissection and "the
legitimate purposes of the retention of those remains [had] been
fulfilled" (80 AD3d at 178).   This was error that broadly
expanded the medical examiner's obligations under common law and
statute.
           We have explained that "ministerial acts -- meaning
conduct requiring adherence to a governing rule, with a
compulsory result -- may subject the municipal employer to
liability for negligence" (Lauer, 95 NY2d at 99, citing Tango v
Tulevech, 61 NY2d 34, 40-41 [1983] [liability will be imposed if
the ministerial action is "otherwise tortious and not justifiable
pursuant to statutory command"]).    Indeed, section 4215 (1)
contains a "governing rule" or "statutory command" to the extent
that the medical examiner, once he or she is finished with the
authorized dissection, must turn the "remains of the body after
dissection" over for "burial or other lawful disposition."      The
issue thus boils down to whether the statutory language "remains
of the body" refers to what is left of the body after the autopsy
has been conducted (as the City argues), or requires the medical
examiner to turn over not only the body itself but also any
organs or tissue samples that have been removed during the
autopsy (as the Shipleys contend).
           That there is ambiguity concerning the statutory
language "remains of the body," which is not a defined term,
necessarily means that although the Legislature has provided the
medical examiner with a "governing rule" and "statutory command"

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                             - 14 -                           No. 96

to turn over a decedent's body for burial or proper disposition,
it has not issued such a rule or command directing the medical
examiner to turn over the organs and tissue samples recovered as
a result of a dissection or autopsy.7   Had the Legislature so
intended, rather than utilizing the phrase "remains of the body,"
it could have utilized the specific words "tissue, organ or part
thereof" as it has done in other sections of article 42 of the
Public Health Law (see Public Health Law §§ 4216 [making it a
class D felony for a person to remove from a dead body "any
tissue, organ or part thereof"]; 4217 [making it a misdemeanor
for a person to purchase or receive "any tissue, organ or part"

     7
        The dissent asserts that Public Health Law § 4215 (2)'s
statement that, where an autopsy or dissection has been made on
an "unclaimed body[,] . . . the persons having possession of the
body may, in their discretion, cause it to be either buried or
cremated, or may retain parts of such body for scientific
purposes," necessarily means that "parts of such body" is a
subset of "remains of the body" such that "remains of the body"
must mean more than the cadaver itself (dissenting op, at 13-14).
Section 4215 (2), however, provides more interpretive evidence
that, had the Legislature intended for "remains of the body" to
include something more than the cadaver itself, it knew how to do
so. Indeed, the Public Health Law provides guidance concerning
the delivery and disposal of unclaimed bodies (see Public Health
Law §§ 4211 [Cadavers; unclaimed; delivery to schools for study];
4212 [Cadavers; unclaimed; delivery to schools; procedure]; 4214
[2] ["In the case of an unclaimed body of a deceased person, the
medical colleges, schools, institutes and universities shall have
a priority claim to the said body, for the purposes of medical,
anatomical or surgical science and study as provided in this
article"]; 4215 [2]). Plainly, the use of the language "parts of
such body for scientific purposes" in section 4215 (2) is
intended to protect certain institutions from criminal penalties
for unlawful autopsy and dissection. It does not follow, as the
dissent argues, that the use of the term "parts of such body" is
meant as a limitation on a medical examiner's authority to retain
organs and tissues.

                             - 14 -
                              - 15 -                          No. 96

of a dead body]; 4218 [making it a class D felony for a person to
open a grave or other place of internment "with intent to remove
the body, or any tissue, organ or part thereof, for the purpose
of selling it or demanding money for the same, of for the
purposes of dissection . . ."]).
           The Legislature did not include such language in
section 4215 (1).   If anything, the Public Health Law's
designation of "tissues, organs, and body parts . . ., body
fluids that are removed during . . . autopsy" as "regulated
medical waste" (Public Health Law § 1389-aa [1] [b]), which must
be stored, contained and treated or disposed of in a particular
manner (see Public Health Law §§ 1389-cc; 1389-dd), only
underscores that the medical examiner did not have a ministerial
duty to turn over such organs and tissue samples as a matter of
course.   Absent any specific legislative command that he do so,
it was within the medical examiner's discretion to determine (a)
what organs and tissue samples to retain; and (b) whether to
apprise the Shipleys that decedent's body had been returned
without the specimens.
           The enactment of article 42 of the Public Health Law
constituted legislative acknowledgment that certain governmental
and non-governmental actors, such as coroners, medical examiners,
and hospital and mortuary personnel, may, in certain
circumstances, need to conduct dissections for a myriad of




                              - 15 -
                               - 16 -                          No. 96

reasons.8   In such situations, the "immediate" possession of the
deceased's body by the next of kin is necessarily delayed.     This
is evidenced by Public Health Law § 4200's directive that "every
body of a deceased person, within this state, shall be decently
buried or incinerated within a reasonable time after death,"
unless "a right to dissect it is expressly conferred by law"
(Public Health Law § 4200 [1] [emphasis suppled]).   And, of
course, the right of certain individuals to dissect and conduct
autopsies is "expressly conferred by law."
            When the Legislature enacted statutes granting medical
examiners (and others) the authority to conduct autopsies and
dissections (see Public Health Law §§ 4209; 4210), it
acknowledged through the enactment of section 4215 (1) that there
would be situations where the decedent's body may not be buried
or incinerated within a reasonable time after the decedent's
death, as per section 4200 (1)'s directive.   Thus, section 4215
strikes a balance permitting the lawful dissection of a body,
while concomitantly ensuring that once the lawful purposes have
been accomplished the body will be buried, incinerated or
properly disposed of as per section 4200 (1), and that the
penalties for the interference or injuries to the body would
"apply equally to the remains of the body after dissection . . ."
            When section 4200 (1) and section 4215 (1) are read in



     8
       For instance, autopsies and hygienic maintenance of the
deceased's body in preparation for disposition.

                               - 16 -
                               - 17 -                          No. 96

tandem, there is no language that would cause a medical examiner
to divine from section 4215 (1) that he or she is required to
return not only decedent's body, but the organs and tissue
samples that the medical examiner is legally permitted to remove.
Similarly, our right of sepulcher jurisprudence does not mandate
that a medical examiner return decedent's organs and tissue
samples.   Thus, because there was no governing rule or statutory
command requiring a medical examiner to turn over organs and
tissue samples, it could not be said that he or she has a
ministerial duty to do so.    At most, a medical examiner's
determination to return only the body without notice that organs
and tissue samples are being retained is discretionary, and,
therefore, no tort liability can be imposed for either the
violation of the common-law right of sepulcher or Public Health
Law § 4215 (1).   Once a medical examiner returns a decedent's
body sans the organs and tissue samples, the medical examiner for
all intents and purposes has complied with the ministerial duty
under section 4215 (1).   Absent a duty to turn over organs and
tissue samples, it cannot be said that the medical examiner has a
legal duty to inform the next of kin that organs and tissue
samples have been retained.
           The events that precipitated this litigation were
tragic and unfortunate.   But, absent any specific rule requiring
the medical examiner to turn over the removed organs and tissue
samples and/or notify the Shipleys that the brain and such tissue
samples had been retained for further examination and testing,

                               - 17 -
                              - 18 -                         No. 96

liability cannot be imposed on the City for failing to abide by
an alleged "ministerial" duty when there was no specific
directive for a medical examiner to follow other than the
mandatory obligation to return the body once finished with the
lawful objectives of the examination.
                                V.
          The issues raised on this appeal are of a sensitive
nature.   The Appellate Division attempted to craft a notification
rule that it claimed would be "hardly onerous" for the medical
examiner to follow, i.e., the "simple act of notifying the next
of kin that, while the body is available for burial, one or more
organs have been removed for further examination" and that they
may be accepted at a later date for burial (80 AD3d at 178).    But
the claimed ease of that rule's application is irrelevant in the
context of these matters because practical and policy
considerations exist beyond merely providing next of kin with
notification.
          The Appellate Division's notification rule -- which the
Office of the New York City Medical Examiner has followed (not
out of its belief that it is appropriate but rather because it
felt compelled by the Appellate Division to do so) -- presumes
that all next of kin actually want to be notified.   The Appellate
Division's notification rule raises more questions than it
answers, such as what type of notice is required; what the time
period is for when such notice should be given; which organs,
tissues and specimens must be turned over and how; and how long

                              - 18 -
                             - 19 -                           No. 96

should such organs, tissues and specimens be retained while the
next of kin determine whether they wish to bury the body with
those items.
          Other jurisdictions have impliedly recognized the
inherent problem with judicially-crafted notice rules and, after
the commencement of litigation by next of kin asserting that they
possessed a property interest in their decedents' organs (see
Waeschle v Dragovic, 576 F3d 539, 545 [6th Cir 2009], cert den
559 US 1037 [2010]; Albrecht v Treon, 118 Ohio St3d 348, 350, 889
NE2d 120, 122 [2008]), enacted statutes that provide legislative
guidance on a medical examiner's obligations concerning the
return of a decedent's organs and tissues after a lawful autopsy
has been conducted (see Mich Compiled Laws Ann § 52.205 [6]
[requiring medical examiner to "promptly deliver or return the
body or any portion of the body to relatives or representatives
of the decedent," but allowing the medical examiner to "retain
any portion of the body" that the medical examiner considers
necessary; setting forth the notification and record-keeping
procedures the medical examiner must follow "if a portion of the
body retained is an entire organ or limb of the decedent," and
also calling for the disposition of the unwanted organs or limbs
as "medical waste"]; Ohio Rev Code Ann § 313.1239 [defining


     9
       These medical waste and religious exemption provisions are
somewhat similar to ours (see Public Health Law §§ 1389-aa [1]
[b] [medical waste]; 4210-c ["no dissection or autopsy shall be
performed over the objection of a surviving relative or friend of
the deceased that such procedure is contrary to the religious

                             - 19 -
                                - 20 -                        No. 96

"retained tissues, organs, blood, other bodily fluids, gases and
other specimens from autopsy" as "medical waste" and requiring
their disposal in accordance with state and federal law, but
providing for a religious exemption that prohibits the coroner
from removing those specimens unless such removal "is a
compelling public necessity," and, in such case, the coroner must
"return the specimens, as soon as is practicable, to the person
who has the right to the disposition of the body," unless the
specimen is a DNA specimen]).
                                 VI.
          There is simply no legal directive that requires a
medical examiner to return organs or tissue samples derived from
a lawful autopsy and retained by the medical examiner after such
an autopsy.   The medical examiner's obligations under both the
common-law right of sepulcher and Public Health § 4215 (1) are
fulfilled upon returning the deceased's body to the next of kin
after a lawful autopsy has been conducted.   If the Legislature
believes that next of kin are entitled to notification that
organs, tissues and other specimens have been removed from the
body, and that they are also entitled their return prior to
burial of the body or other disposition, it should enact
legislation delineating the medical examiner's obligations in
that regard, as it is the Legislature that is in the best


believe of the decedent," unless compelling public necessity can
be demonstrated]).


                                - 20 -
                               - 21 -                        No. 96

position to examine the issue and craft legislation that will
consider the rights of families and next of kin while
concomitantly taking into account the medical examiner's
statutory obligations to conduct autopsies.
            Accordingly, the order insofar appealed from should be
reversed, with costs, and the complaint dismissed in its
entirety.




                               - 21 -
Andre Shipley et al. v. City of New York, et al.
No. 96




RIVERA, J.(dissenting):
          The underlying facts leading to this appeal are
horrific, and although specific to the parties, they remind us of
the grief experienced upon the passing of a family member and the
urgent desire of the living to provide final repose to the dead.
Throughout history, individuals from different cultures and
communities have performed funeral rites, based on personal
beliefs and religious customs, intended to send the deceased to a
final resting place.   This most human of acts has been repeated
over the centuries in myriad and unique ways, and within our
legal system the common law has recognized the next of kin's
right to possession of the body for preservation and burial,
known as the right of sepulcher.
          This appeal requires the Court to consider this ancient
right in the context of the defendants' statutory authority to
conduct an autopsy on the body of the deceased.    Resolution of
the issues raised by the parties must be based on applicable
common and statutory laws, which embody New York State's long-
established "[r]espect for the dead, [and] the feelings of [human
beings] for their deceased parents, relatives and friends"
(Finley v Atlantic Transp. Co. Ltd., 220 NY 249, 255 [1917]).      In

                               - 1 -
                              - 2 -                           No. 96

accordance with the plaintiffs' right of sepulcher and the
mandates of the Public Health Law, I would hold that defendants'
statutory authority to conduct an autopsy does not permit a
medical examiner to retain organs once the lawful purpose for
their retention has been accomplished, absent notification to,
and consent from the next of kin.   Therefore, I disagree with the
majority's conclusion that a medical examiner has unfettered
discretion to retain organs once they no longer serve any
legitimate purpose, and also to withhold information from the
next of kin that parts of the body are unavailable immediately
for burial, or are never to be returned.   I therefore dissent.


                               I.
          Plaintiffs Andre and Korisha Shipley lost their only
son, 17-year-old Jesse Shipley, while he was a passenger in a car
involved in a motor vehicle accident in Staten Island.   During
the course of Jesse's autopsy, the forensic pathologist and
Richmond County's then-Acting Deputy Chief Medical Examiner
removed and took tissue samples from various organs, including
the heart, liver, and kidney, and then reinserted those organs
into the body.
          The medical examiner also removed and retained Jesse's
entire brain for future examination by another doctor.   According
to the medical examiner it was his Office's standard practice to
preserve the brain in formaldehyde and then wait until


                              - 2 -
                              - 3 -                           No. 96

approximately six more specimens were ready before requesting
that the doctor travel to Staten Island to conduct the
neuropathological study of the brains.   The medical examiner
explained that "it doesn't make sense" for the doctor "to come
and do one."
          The medical examiner completed the autopsy within 24
hours of Jesse's death, and the body was transferred to the
funeral home the following day, whereupon the family held funeral
services and buried their son three days later.   It is undisputed
that the medical examiner did not notify the plaintiffs before
the autopsy or in advance of the burial that their son's brain
had been removed and retained for future study.
          Plaintiffs alleged that they first learned about the
retention of Jesse's brain two months after the burial, under
apparent gruesome circumstances.   According to plaintiffs, they
learned from their daughter that during a field trip to the
Medical Examiner's Office several students and a teacher from
Jesse's high school saw what they believed to be a brain and
other body parts on display in a jar labeled with Jesse's name
and the words "as a result of drunk driving."   The students had
an emotional reaction to seeing the jar and its contents, and as
a result the teacher immediately cancelled the trip and left with
the students.
          After plaintiffs confirmed that Jesse's brain had been
removed and retained, they spoke with their priest, who informed


                              - 3 -
                                - 4 -                           No. 96

them that their son's burial was not proper without the remaining
body parts.    In response to the plaintiffs' request, the Medical
Examiner's Office returned the brain and the retained samples of
several other organs to the family. Plaintiffs then conducted a
second funeral and burial service for their son, months following
the first.
          Plaintiffs thereafter commenced this action against the
City of New York and the Office of the New York City Medical
Examiner, asserting, inter alia, damages for costs and emotional
injuries due to the defendants' violation of plaintiffs' right of
sepulcher.    The majority rejects what had proved successful
arguments in support of the plaintiffs' claims in the courts
below, but does so by misreading defendants' statutory authority
to retain organs during the course of Jesse's autopsy.


                                 II.
          Under New York's common-law right of sepulcher, the
next of kin has the absolute right to the immediate possession of
a decedent's body for preservation and burial (Darcy v Presbyt.
Hosp. in City of New York, 202 NY 259 [1911]; Finley, 220 NY 249;
Estate of Scheuer v City of New York, 10 AD3d 272 [1st Dept
2004], lv denied 6 NY3d 708 [2006]).    The concept of a family's
right to burial, recognized by diverse cultures and religious
faiths, is age-old and serves an important role in the complexity
of human existence.    As one court has described it,


                                - 4 -
                              - 5 -                          No. 96

          "[t]he right of sepulcher, evoking the
          mystery and sorrow of death and the hope for
          an afterlife, has been ritualized since the
          earliest pre-Christian civilizations. From
          the Egyptian mummification process to the
          Roman civil law's imposition of a duty of
          burial, virtually every faith and society has
          exhibited a reverence for the dead"
(Melfi v Mount Sinai Hosp., 64 AD3d 26, 32 [1st Dept 2009]).
The duty associated with disposition of the body concerns "the
legal right of the surviving next of kin to find 'solace and
comfort' in the ritual of burial" (id., 64 AD3d at 32; see also
Finley, 220 NY at 257 [recognizing unauthorized burial at sea
"depriv(ed) the next of kin of the solace of giving the body a
decent burial"], and Stahl v William Necker, Inc., 184 AD 85,
90-91 [1st Dept 1918]["[n]ext of kin have the right to the
possession for the purpose of burial or other disposition which
they may see fit to make of the body of a deceased relative"]).
          It is now well-settled that violation of the next of
kin's right to burial is compensable.   One of the earliest and
clearest articulations of such a claim appears in Foley v Phelps
(1 AD 551 [1st Dept 1896]), wherein the court stated that
          " '[t]he right to bury a corpse, and to
          preserve its remains, is a legal right, which
          the courts of law will recognize and
          protect.' The right is to the possession of
          the corpse in the same condition it was in
          when death supervened. It is the right to
          what remains when the breath leaves the body,
          and not merely to such a hacked, hewed and
          mutilated corpse as some stranger . . . may
          choose to turn over to an afflicted relative"
(id. at 555, quoting Brick Church Case, 4 Bradf. (Sur.) 532).


                              - 5 -
                               - 6 -                           No. 96

Then in 1911, in Darcy v Presbyterian Hosp. in City of N.Y., this
Court held that a surviving spouse could maintain a cause of
action for "wounded feelings and mental distress" arising from
the unlawful interference with her right to possession of her
husband's body and the unauthorized dissection of his remains
(202 NY at 263).   Just six years later, when this Court decided
Finley, the courts had already recognized a right of action "for
an unauthorized dissection or one contrary to the wishes or
consent of the widow, heirs or next of kin . . . for retaining
organs of a deceased body after autopsy or without consent . . .
and for mutilation of a body" (220 NY at 257-258 [internal
citations omitted]).   Against this legal backdrop, Finley made
clear that the next of kin has "a legal right to the possession
of the body for burial and any unlawful interference with that
right [is] an actionable wrong" which "is a subject for
compensation" (id. at 258).


                               III.
          The majority concludes that in accordance with the
Public Health Law the medical examiner was under no duty to
return for burial Jesse's removed body parts, or to notify
plaintiffs of the removal and retention of Jesse's brain and
other organ samples.   However, a careful reading of all the
applicable statutes and rules reveals notable limitations on the
medical examiner's authority to conduct an autopsy and retain the


                               - 6 -
                              - 7 -                           No. 96

remains of the body, and evinces an intention to ensure proper
return of all body parts for burial purposes, subject only to the
completion of a lawful dissection.
          The Public Health Law provides that "[e]xcept in cases
in which a right to dissect is expressly conferred by law, every
body of a deceased person, within this state shall be decently
buried or incinerated within a reasonable time after death"
(Public Health Law § 4200 [1]).   Section 4215 (1) further states
that where a dissection is performed,
          "the provisions of this article, requiring
          the burial or other lawful disposition of a
          body of a deceased person, and the provisions
          of law providing for the punishment of
          interference with or injuries to it, apply
          equally to the remains of the body after
          dissection as soon as the lawful purposes of
          such dissection have been accomplished."
By its plain language, the statute is protective of the next of
kin's right of burial of the deceased's remains.
          While the statute grants authority to conduct an
autopsy, article 42 of the Public Health Law, upon which the
majority and defendants' rely, "reflects . . . concerns for
respecting the corporeal remains of decedents and protecting the
feelings of family members by strictly limiting the circumstances
under which autopsies may be performed" (Bambrick v Booth Mem.
Med. Ctr., 190 AD2d 646, 647 [2d Dept 1993] [emphasis added]).
Accordingly, autopsies only may be conducted by designated
individuals for statutorily delineated purposes (see Public
Health Law § 4209 [limiting the persons who may preform an

                              - 7 -
                               - 8 -                          No. 96

autopsy]; id. § 4210 [limiting the right to dissect the body of a
deceased person]).   Thus, a medical examiner is authorized to
dissect a deceased person under Public Health Law § 4210,1 for
example, in cases prescribed by special statutes, in the course
of a criminal investigation, generally to determine the cause of
death, or where a next of kin consents (see Public Health Law §
4210 [2]) [dissection is permitted by a coroner or medical
examiner, "performed in the course of an investigation within the
jurisdiction of the officer performing or directing the
dissection, or . . . upon the written request of a district
attorney, or sheriff, or the chief of a police department"]; id.
§ 4210 [3] [autopsy authorized by next of kin of the deceased]).
          Moreover, under the New York City's local laws and
rules the Chief Medical Examiner may perform an autopsy or
dissection for those dying "from criminal violence, by accident,
by suicide, suddenly when in apparent health, when unattended by
a physician, in a correctional facility or in any suspicious or
unusual manner" (New York City Charter § 557 [f] [1]; see also
County Law § 673).   Significantly, no autopsy is conducted "if it
may be concluded with reasonable certainty that death occurred
from natural causes or obvious traumatic injury, and there are no
other circumstances which would appear to require an autopsy"
unless the medical examiner deems the autopsy necessary in


     1
       Section 4210 (1) also authorizes coroners and coroner's
physicians to conduct autopsies.

                               - 8 -
                               - 9 -                          No. 96

accordance with the law (Administrative Code of the City of New
York § 17-203).2
          As the laws authorizing an autopsy are in derogation of
the common law right of sepulcher, they must be strictly
construed (McKinney's Cons. Laws of N.Y., Book 1, Statutes § 301,
Comment ["Statutes in derogation or in contravention of (the
common law), are strictly construed, to the end that the common
law system be changed only so far as required by the words of the
act and the mischief to be remedied"]).   Thus, notwithstanding
the majority's suggestion to the contrary, a medical examiner
does not have unlimited power to conduct an autopsy.   Although a
medical examiner exercises a certain amount of professional
judgment in the course of performing a human dissection, the law
does not permit professional conduct in excess of statutory
authority.   The question then is whether a medical examiner may
retain organs or parts thereof, and, upon the next of kin's
request, refuse to turn them over for burial and proper
disposition once the autopsy is complete and such human material


     2
       The Administrative Code of the City of New York authorizes
investigation of deaths appearing to be caused by
          "(a) A violent death, whether by criminal
          violence, suicide or casualty;(b) A death
          caused by unlawful act or criminal
          neglect;(c) A death occurring in a
          suspicious, unusual or unexplained manner;(d)
          A death caused by suspected criminal
          abortion;(e) A death while unattended by a
          physician . . . (f) A death of a person
          confined in a public institution other than a
          hospital, infirmary or nursing home."

                               - 9 -
                               - 10 -                        No. 96

is no longer required for further study.
            In a case presenting facts and claims similar to those
presented by this appeal, the Southern District of New York, in
Hendriksen v Roosevelt Hospital, refused to dismiss a right of
sepulcher claim based on the alleged lack of consent by plaintiff
to the removal and retention of organs during a lawful autopsy
(297 F Supp 1142, 1143-1144 [1969], citing Hassard v Lehane 143
AD 424, 425 [1st Dept 1911] [recognizing claim for retention of
organs]).   In reaching its conclusion, the Southern District
relied on the First Department's decision in Hassard v Lehane,
which involved an unlawful autopsy, and the removal and retention
of the decedent's organs.   The First Department determined that
the next of kin had a legal right to the possession of her son's
corpse "in the condition it was in at the instant of death for
the purpose of preserving and burying the remains" (143 AD at
425).   It further opined that retention of the organs was
unwarranted absent legal authority to do so (id. at 426).
            The Southern District recognized in Hendriksen that the
authority to conduct an autopsy is limited in accordance with the
statute, and, to the extent organs are removed, there must be a
lawful basis for their retention.   Whether on consent of the next
of kin or upon some other lawful authority, organ retention is
not automatically permissible, or in fact intended, by the
statute (Hendriksen, 297 F Supp at 1144-45; see also Dixon, 76
AD3d 1043 [same], decided with Shipley v City of New York, 80


                               - 10 -
                              - 11 -                         No. 96

AD3d 171).   Although the court's analysis in Hendriksen responded
to the issues in that case, the approach is just as applicable
and equally relevant to the issues raised by the current appeal:
           "We are not herein concerned with the mere
           removal of organs in the course of autopsy,
           or the taking of tissue samples in order to
           determine cause of death, but with the
           failure, as yet unexplained, to return those
           organs to the body and thereby restore its
           condition to the extent reasonably possible.
           The necessity of consent to the retention of
           parts of the body, even in the presence of
           consent to the autopsy itself, was
           established by Hassard v. Lehane, which
           stated: 'Doubtless if the defendant made the
           autopsy by the direction of the coroner, that
           would justify the dissection of the body . .
           . but it would not, in the absence of further
           directions from the coroner or district
           attorney, or other evidence, warrant the
           removal or detention of any part of the
           body' "
(297 F Supp at 1144 [internal citations omitted]).
           Yet, despite the long-established right of sepulcher,
the Public Health Law's apparent recognition of the next of kin's
right to burial, the state and city laws' limits on the medical
examiner's authority to conduct an autopsy, and the case law
requiring the return of organs and body parts upon completion of
the autopsy and all necessary examinations, the majority
concludes that a medical examiner may retain organs and organ
specimens, even though such retention serves no statutory
purpose.   That conclusion depends, in my opinion, on a misreading
of Public Health Law § 4215 (1), and the erroneous premise that
the right of sepulcher includes only the dissected corpse.


                              - 11 -
                              - 12 -                           No. 96

          Specifically, the majority adopts the City's
interpretation that the phrase "remains of the body" contained in
section 4215 (1) excludes organs removed during an autopsy
(majority op at 13-14).   In support of this conclusion, the
majority relies on other sections of the Public Health Law,
specifically sections that criminalize theft of tissues and
organs, which make no reference to "remains of the body".    That
interpretation is a strained and decontextualized reading of the
statute (see McKinney's Cons. Laws of N.Y., Book 1, Statutes §
97).
          The Public Health Law makes no provision for the
retention of organs upon completion of an autopsy, with one
exception, found in section 4215 (2).   That subparagraph refers
to autopsy or dissection of an unclaimed body, and provides "that
the persons having possession of the [unclaimed] body may, in
their discretion, cause it to be either buried or cremated, or
may retain parts of such body for scientific purposes."   In
accordance with this subparagraph, the person in possession of
the unclaimed body may retain, for scientific purposes, "parts"
rather than the whole of the body, upon completion of the autopsy
or dissection.   Consequently, "parts of such body" refers, by
necessity, to a subset of the "remains of the body."   Thus,
"remains of the body" encompasses more than merely the cadaver
without its organs, because otherwise the reference to "parts of
such body" would be unnecessary.


                              - 12 -
                              - 13 -                          No. 96

          Moreover, the limitation in subparagraph (2) that
retention of "parts of such body" is permissible solely "for
scientific purposes" provides additional support for reading
"remains of the body" to include organs since organs are commonly
used for scientific study.   This interpretation of "remains of
the body" applies to the entirety of section 4215, and makes
clear that the majority's reading of subparagraph (1) is
textually unsupportable. (See McKinney's Cons. Laws of N.Y., Book
1, Statutes § 97, Comment ["The different parts of the same act,
though contained in different sections, are to be construed
together as if they were all in the same section, and the meaning
of a single section may not be determined by splitting it up into
several parts"]).
          Furthermore, while article 42 of the Public Health Law
does not define "parts of such body", article 43, which applies
to anatomical gifts, specifically includes organs within its
definition of "parts of the body" (Public Health Law § 4300 [5]).
Therefore, it is not true, as the majority argues, that the
legislature limits itself to use of the word "organ" when it
means to include only the word "organ".   Rather, the legislature
employs various terms throughout the Public Health Law when
intending to refer to organs and "other portions of the human
body" (see id.).
          The majority's reliance on sections 4216, 4217, and
4218 of the Public Health Law does not support its interpretation


                              - 13 -
                               - 14 -                         No. 96

of section 4215 (1), because those sections impose criminal
liability for uniquely targeted conduct and thus require a
certain textual specificity.   Those sections -- respectively
titled "Body stealing," "Receiving stolen body of a human being,"
and "Opening graves" -- criminalize what is best known as body
snatching, trafficking in human body parts, and grave robbing.3
The nature of these proscribed acts, generally for profit and
focused less on the corpse as a whole than on the unlawful
removal of more conveniently traded individual body parts, such
as organs, explains the statutory reference to discrete, highly

     3
       Section 4216, "Body stealing," provides "A person who
removes the dead body of a human being, or any tissue, organ or
part thereof from a grave, vault, or other place, where the same
has been buried, or from a place where the same has been
deposited while awaiting burial, without authority of law, with
intent to sell the same, or for the purpose of dissection, or for
the purpose of procuring a reward for the return of the same, or
from malice or wantonness, is guilty of a class D felony."

     Section 4217, "Receiving stolen body of a human being,"
states "A person who purchases, or receives except for the
purpose of burial, the dead body of a human being, or any tissue,
organ, or part thereof, knowing that the same has been removed
contrary to section forty-two hundred sixteen of this title, is
guilty of a misdemeanor."

     Section 4218, "Opening graves," provides "A person who opens
a grave or other place of interment, temporary or otherwise, or a
building wherein the dead body of a human being is deposited
while awaiting burial, without authority of law, with intent to
remove the body, or any tissue, organ or part thereof, for the
purpose of selling it or demanding money for the same, or for the
purpose of dissection, or from malice or wantonness, or with
intent to steal or remove the coffin or any part thereof, or
anything attached thereto, or any vestment, or other article
interred, or intended to be interred with the dead body, is
guilty of a class D felony."

                               - 14 -
                               - 15 -                         No. 96

valued, body components.   Certainly there is no suggestion by any
party to this appeal that these sections apply to a medical
examiner's withholding of organs for purposes of an autopsy or
legitimate examination.    Thus, these provisions cannot be read to
mean that the phrase "remains of the body" as set forth in
section 4215 (1) excludes an essential part of the body, i.e.
organs.
          As an additional matter, while our focus is on the
interplay between the Public Health Law and the right of
sepulcher, the defendants' litigation position regarding the
medical examiner's authority to retain organs appears at odds
with the City's health code.   Article 205 of the Code, "Deaths
and Disposals of Human Remains," defines "human remains" as "a
conceptus which has completed 24 weeks or more of gestation or
all or any part of the dead body of a human being but does not
include human ashes recovered after cremation" (New York City
Health Code [24 RCNY] § 205.01 [c] [emphasis added]).   Given the
broad scope of this definition, the phrase "any part of the dead
body" must be accorded its natural meaning to include a
deceased's organs.   Section 205.17, titled "Claiming of human
remains removed to the City mortuary," further provides that
"human remains which have been removed to the City mortuary"
shall be delivered along with the death certificate "on demand,
to a funeral director or undertaker," employed by, inter alia,
the next of kin (id. § 205.17).    Of course, the medical examiner


                               - 15 -
                              - 16 -                        No. 96

is authorized to conduct an autopsy for a lawful purpose.
(Administrative Code § 17-203). Thus, in New York City, "human
remains" includes the decedent's organs and those organs must be
returned upon demand by the funeral home, for proper disposition
by the next of kin, once the lawful purpose for retention of the
organs has been fulfilled.
          Here, only after the medical examiner released the body
for the first burial, and once the plaintiffs realized the brain
had been removed and demanded it be turned over, did the medical
examiner return Jesse's brain to plaintiffs.   The question then
is whether the defendants may be held liable for plaintiffs'
emotional damages due to the medical examiner's failure to inform
plaintiffs of the removal and retention of Jesse's brain prior to
the first funeral service and burial.


                                IV.
          "Government action, if discretionary, may not be a
basis for liability, while ministerial actions may be, but only
if they violate a special duty owed to the plaintiff, apart from
any duty to the public in general" (McLean v City of New York, 12
NY3d 194, 203 [2009]).   Under the common-law right of sepulcher,
the Public Health Law, and City code, the medical examiner is
without authority to retain organs once the lawful purpose for
their removal and retention has been accomplished.   Therefore,
once the legitimate basis for withholding the organs has ended,


                              - 16 -
                              - 17 -                          No. 96

the medical examiner has a ministerial duty to turn over the
organs to the next of kin upon demand or, where the next of kin
does not seek return, to properly dispose of the organs.
           In concluding that the medical examiner has no such
ministerial duty, the majority relies on its interpretation of
section 4215, and also points to Public Health Law § 1389-aa (1)
(b), which includes organs and body parts removed during an
autopsy within its definition of regulated medical waste (maj op
at 14).   For the reasons I have already described, section 4215
requires that the medical examiner return the organs, absent a
legitimate purpose to retain them.     With respect to the
majority's reference to section 1389-aa (1) (b), the majority
ignores the fact that, pursuant to his usual practice, the
medical examiner here initially turned over all the organs along
with the body, with the exception of Jesse's brain.     The medical
examiner testified that he removed all the organs in order to
obtain samples for the autopsy and future study.     He then, again
in accordance with his usual practice, placed all of the organs
into a bag, not including the brain, which he preserved for
future examination.   He put the bag into the body and stitched it
up for pick up by the funeral home.     As this testimony
establishes, the fact that organs are removed from the body
during an autopsy does not mean that the medical examiner cannot
reinsert them for burial or that the statute prohibits return of
the organs to next of kin.   Indeed, defendants admit that


                              - 17 -
                                - 18 -                        No. 96

            "[t]he Medical Examiner, at the request of
            the next of kin, may, and does, as
            appropriate and as occurred in this case,
            return, for disposition by burial or
            cremation in accordance with the law, organs
            removed during an authorized autopsy once the
            legitimate purposes for the retention of
            those organs have been fulfilled."
Under these circumstances, the return of organs is ministerial,
and, therefore, if a special duty to plaintiffs exists, injury
caused by the failure to return or the negligent mishandling of
those organs may be a basis for liability.
            In Pelaez v Seide, this Court stated that
            "[a] special relationship can be formed in
            three ways: (1) when the municipality
            violates a statutory duty enacted for the
            benefit of a particular class of persons; (2)
            when it voluntarily assumes a duty that
            generates justifiable reliance by the person
            who benefits from the duty; or (3) when the
            municipality assumes positive direction and
            control in the face of a known, blatant and
            dangerous safety violation"
(2 NY3d 186, 199-200 [2004]).    Plaintiffs' action falls within
the first category of special relationship cases because under
section 4215 (1) of the Public Health Law the medical examiner is
under a duty to return the body and its remains (see Public
Health Law § 4215 [1]).    Such duty is clearly for the benefit of
the next of kin who is, by law, authorized to bury and dispose of
the body.
            Plaintiffs' action also falls within the second
category of special relationship cases because they relied on the
defendants' assumption of the duty to conduct an autopsy as


                                - 18 -
                              - 19 -                          No. 96

required by law, which also mandated return of Jesse's organs
once the legitimate purpose for their retention had been
accomplished.   To establish a special relationship by a duty
voluntarily assumed, plaintiffs must show that there was:
          "(1) an assumption by the municipality,
          through promises or actions, of an
          affirmative duty to act on behalf of the
          party who was injured; (2) knowledge on the
          part of the municipality's agents that
          inaction could lead to harm; (3) some form of
          direct contact between the municipality's
          agents and the injured party; and (4) that
          party's justifiable reliance on the
          municipality's affirmative undertaking"
(Valdez v City of New York, 18 NY3d 69, 80 [2011]).
          Here, the medical examiner took possession of the body,
conducted an autopsy, and returned the body for purposes of
burial by the next of kin.   The medical examiner knew that the
proper burial of the plaintiffs' son and the condition of the
body were significant to the family as the father indicated the
body should appear presentable for the funeral service.
Moreover, the right of sepulcher itself recognizes the
significance of this most difficult and consequential of actions,
the proper and final disposition of the remaining corporeal
remains of a loved one.   The medical examiner surely understood
that failure to return the body in order to comply with this most
intimate and personal of familial obligations would result in
harm to plaintiffs.   Further, it is undisputed that there was
contact between the medical examiner and plaintiff's father
related to the autopsy and the burial. On these facts, plaintiffs

                              - 19 -
                              - 20 -                           No. 96

justifiably relied on the medical examiner's assumption of the
duty to return the body, including the organs, for proper burial,
thus establishing the basis for a special relationship between
the City and plaintiffs.
          However, because the next of kin may very well
determine that a proper burial can be conducted without the
organs, the Appellate Division properly concluded that the
medical examiner may satisfy the duty to the next of kin by
notification of the organs removal (see 80 AD3d at 178).    Upon
such notice, the next of kin may then determine whether to
request the return of the organs, and, if so, whether to delay
burial and wait to learn if the medical examiner can, as a legal
matter, comply with this request, or whether to proceed
expeditiously with the disposition of the body.
          The majority finds that because there is no duty to
return organs, the medical examiner also has no duty to notify
the next of kin that organs have been retained (maj op at 17).
While I disagree that the medical examiner has no duty to return
the organs, I agree that there is no statute mandating
notification.   Nevertheless, that fact is of no moment because
the right of sepulcher provides sufficient legal basis for
imposing a notification requirement.   As this case makes
abundantly clear, the right would be rendered meaningless if the
next of kin did not know about the condition under which the body
was returned.   In other words, notification ensures a fully


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                                - 21 -                        No. 96

informed next of kin's exercise of the right of sepulcher.
          The majority also raises what it considers to be the
"practical and policy considerations" of providing notice to next
of kin (maj op at 17).   However, any such considerations must, of
necessity, be addressed in the first instance by the defendants.
In any event, the fact of the matter is, on this appeal,
defendants have represented that they are in compliance with the
Appellate Division's decision.    That is to say, they provide some
type of notice to next of kin, and upon request return the
organs.


                                  V.
          The question remains open as to whether the majority's
reading of the Public Health Law permits a demand for organs
based on religious grounds, or whether there should be some
notice concerning the legal rights of next of kin based on the
decedent's religious beliefs.    However, as the majority
acknowledges (maj op at 7-8), section 4210-c provides for a
religious exemption from an autopsy or dissection, and states
specifically,
          "[n]otwithstanding any other provision of
          law, in the absence of a compelling public
          necessity, no dissection or autopsy shall be
          performed over the objection of a surviving
          relative or friend of the deceased that such
          procedure is contrary to the religious belief
          of the decedent, or, if there is otherwise
          reason to believe that a dissection or
          autopsy is contrary to the decedent's
          religious beliefs."

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                              - 22 -                           No. 96

Notwithstanding the clear legislative intent to address religious
concerns regarding dissection and autopsies, this case suggests
the general public has little basis by which to understand the
rights afforded under the statute.
          According to the undisputed facts, the medical examiner
made no inquiry of the plaintiffs about their possible objection
to the autopsy on religious grounds.    However, plaintiffs'
testimony suggests they did not know about the exemption even
though religious concerns about the condition of their son's
post-autopsy body informed their demand for their son's brain.
Jesse's mother testified that she "wanted to confirm that his
remains be with his body in consecrated grounds for resurrection
purposes on judgement day."
          Moreover, even though the statute refers to religious
beliefs, and makes no distinction among religions or the types of
faith-based objections to an autopsy, the medical examiner
testified "that families can object, yes, based on certain
religions.   Not all religions."4   Apparently, the medical



     4
       The defendants' website identifies certain religions with
the potential to raise "a viable religious objection" (Office of
Chief Medical Examiner, Frequently Asked Questions,
http://www.nyc.gov/html/ocme/html/faq/faq.shtml#6 ["[I]f we
cannot fulfill our legal and public responsibility without
performing an autopsy, if the family has raised a viable
religious objection (i.e., based on Judaism, Islam, Christian
Science, Jehovah's Witness, or 7th Day Adventist) they will be
provided an opportunity to hire an attorney, if they desire, and
to present their objection to a Judge who will determine whether
an autopsy will be performed."]

                              - 22 -
                                  - 23 -                             No. 96

examiner here based decisions concerning the religious exemption
on the name of the decedent and the existence of some religious
artifact or apparel, which suggested to him the decedent's
religious affiliation.    This seems contrary to the language and
purpose of section 4210-c and further supports the need for
notification so that the next of kin are well-prepared to make
fully informed choices.
            The majority suggests that any change in the rights of
the next of kin should come from the legislature.            That is indeed
so because the majority has interpreted the law as applied to
cases involving an autopsy in such a way as to deny the next of
kin the right to demand return of their loved one in as
undisturbed a condition as possible.           Perhaps the majority's
ruling will result in greater awareness of the right of
sepulcher.   Even so, for those who indeed know enough to seek the
return of the deceased's organs, the majority provides no "solace
and comfort," and little assurance, that their request will be
honored by the medical examiner.        Therefore, I dissent.
*   *   *    *   *   *    *   *     *      *     *   *   *   *   *   *   *
Order, insofar as appealed from, reversed, with costs, and the
complaint dismissed in its entirety. Opinion by Judge Pigott.
Judges Read, Abdus-Salaam, Stein and Fahey concur. Judge Rivera
dissents in an opinion in which Chief Judge Lippman concurs.

Decided June 10, 2015




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