6, 7 Filed Papers: Claim, Answer
Upon the foregoing papers, this motion is granted.
The claim herein alleges the negligence of the State of New York in the failure
to have notified Claimant Virginia Evans, the mother of Reese Jones, of the
death of her son on December 16, 1998, while he was incarcerated at Attica
Correctional Facility. It is further alleged that the State wrongfully and
negligently arranged for the cremation of the decedent, purportedly depriving
Claimant of the right to conduct a proper funeral and burial for her son in
accordance with her beliefs.
The Defendant seeks summary judgment dismissing the claim on numerous grounds.
Primarily, the Defendant asserts that the decedent never listed his mother, but
noted another person, irrespective of the purported assertion in Paragraph 4 of
Claimant's Bill of Particulars that "Plaintiff (sic) is on file with Attica
State Prison (sic) as decedent's mother to be notified in such
Certain facts are undisputed. First, the decedent committed suicide on
December 16, 1998, while confined at Attica Correctional Facility (Attica).
Second, a Chaplain at Attica, after being apprised of the death, thereupon went
to the Attica Guidance Unit and reviewed the decedent's files wherein it was
noted that the decedent himself had listed one Jessie Wingate, a friend, with
her address and telephone number, as the person he wished to be notified in the
event of an emergency (the pre-designated individual). It must also be noted
that the records maintained on the form for the Reception/Classification System
Family and Residence for the inmate, using information supplied by the decedent,
contained the name of Jessie Wingate, identified as "Surrogate", with an address
and the telephone number 718-776-6167, as the nearest relative (Exhibit 2 to the
moving papers). It also appears that decedent telephoned one Thomas Wingate at
718-776-6168 (just one digit off from the number utilized for Jessie Wingate)
with his notification call upon his arrival at Attica (Exhibit 3). Third,
utilizing that information, the Chaplain completed a form entitled "Notification
of Next of Kin in the Event of Death" (Exhibit 1 to the moving papers). The
Chaplain arranged for Jessie Wingate to be so notified by the New York City
Chaplain's Office of the Department of Correctional Services (DOCS), and it was
reported back on or about 2:30 p.m. on that day, that Jessie Wingate was duly
notified and would contact the immediate family of the decedent (Exhibit 1).
Thereafter, Ms. Wingate called Attica to advise that the telephone numbers that
she had for decedent's mother and grandmother were disconnected, and that she
had no way to contact either relative.
Exhibit 1 purports to reflect that an attempt was made, using the internet, to
locate Claimant, and that a Virginia Evans in Brooklyn was contacted, but that
she was not the decedent's mother. Affidavit testimony indicates that a deputy
superintendent at Attica became aware that the parents could not be located, and
informally offered to look up the name and address on the internet, albeit
locating another Virginia Evans, not the Claimant, and the Defendant was
otherwise unsuccessful in locating Claimant. In fact, the record does not
reveal any further efforts by the Defendant.
Thereafter, on December 23, 1998, in the absence of any contact from the
family, decedent's body was released from the Monroe County Medical Examiner's
office to a funeral director for cremation.
It is undisputed that the Claimant was unaware of her son's death until on or
about February 13, 1999, when a letter she had written to her son was returned
from Attica with the notation "deceased." She thereafter learned of the
disposition of her son's remains, and filed this claim alleging the State's
negligence as recited above.
Defendant correctly points out that a coroner is obligated "to take charge of"
any dead person's body within his or her county and that the State must turn
over the body of a deceased inmate to the coroner to perform an autopsy (County
Law §§ 674 and ). Since a coroner is an elected county
official, and not a State officer or employee (County Law Section §400),
the Defendant urges that it should not be held responsible for any alleged
tortious or wrongful actions once the body has been delivered in accordance with
the statute (Liddell v State of New York, 182 Misc 2d 133, 135,
aff'd, 278 AD2d 928).
Claimant opposes dismissal of the claim, observing that her claim is based on
"mental trauma", in that DOCS failed to notify her and they therefore deprived
her of her "basic human right" to bury her child according to her religious
beliefs. She describes the "cruel and insensitive way" she ultimately learned
of her son's death.
Claimant, observing that DOCS had been informed by the predesignated individual
selected by her son that she could not be located, specifies numerous references
in decedent's records to her name, address and phone number, or leads that would
have led to her. It is instructive to examine each reference separately.
First, Claimant observes that DOCS correctly informed the Department of Health
in Defendant's Exhibit 6, the Certificate of Death, that decedent's last place
of employment was a specific trucking company in Brooklyn. Claimant notes that
at the time in question her brother was a full-time employee at the company, and
that her husband was on a list of temporary workers regularly utilized by the
company. She observes that a simple phone call to the company would have
resulted in her notification. This argument, while interesting, is speculative
and far-fetched. Indeed, while a phone call might, in retrospect, have produced
a timely notification, no duty to have done so is alleged, and no act of
negligence may be presumed from the failure to have broadened the parameters of
notification, particularly given the successful initial contact with the
decedent's named and identified designee.
Claimant's next arguments relate to the decedent's clinical and psychiatric
records from the Attica Mental Health Unit, where it is averred that DOCS made
no effort to examine decedent's ‘extensive' file or have it examined by an
authorized individual. This becomes somewhat significant because Claimant
alleges that at the time of decedant's death an address therein (which is the
same as the address listed as the decedent's at the time of his arrest in
Defendant's Exhibit 1) was a two-family residence where the widow of Claimant's
late brother and another of her brothers separately resided. Claimant observes
that if DOCS' officials or police officers had merely gone to that address, she
would have been easily contacted. Regardless of the purported ease with which
Claimant might have been located using this information (but see the discussion
below on the question of access to mental health records), a flaw in this
argument is the absence of the breach of any duty, or any act of negligence, in
the failure to have so acted.
In any event it appears that DOCS was not entitled to access to these records.
Claimant focuses upon references in decedent's clinical and psychiatric records,
to wit, his mental health records, that allegedly could have and should have led
DOCS officials to the Claimant so that she could have been advised of the
decedent's death and made funeral arrangements. Specifically, Claimant refers
(1) Exhibit B: a page from what is characterized as an admission record (as it
appears to be part of a document that is "To be completed within 8 hours of
admission"), dated April 30, 1998, in which Claimant is listed as the person to
contact in the event of an emergency, with her then current address and
telephone number. Interestingly, it also lists as an alternative, Jesse (sic),
labeled as decedent's surrogate mother, with her telephone number;
(2) Exhibit C: a page from decedent's mental health records, dated August 5,
1998, which reveals an address and a telephone number at which the Claimant
could be reached. Interestingly, Jessie Wingate is listed first, as a
"correspondent friend" with her telephone number;
(3) Exhibit D: an undated page, with certain typewritten notations, noting that
reports indicate that decedent had contact with his mother, with her phone
(4) Exhibit E: yet another undated page where it is reported that decedent does
maintain regular contact with his family, and that he maintained regular contact
with his mother, with her name and telephone number given. It also says that
"This patient's family was not directly involved in his course of care",
(5) Exhibit F: in a progress note dated November 28, 1998, decedent asked to
make a phone call to his mother, and was told that his mother would be notified
of a then-impending transfer.
Claimant's counsel opposes the motion, and recites that there is a factual
question of whether DOCS "was negligent in failing to contact" Claimant at the
address and phone number available in the mental health records. Claimant
provides the deposition testimony of the Inmate Records Coordinator (IRC) who
acknowledged that the mental health records were housed within the physical
confines of Attica, and that she had made no attempt to gain access to the
mental health records.
Defendant avers, in its reply affirmation, that the decedent's mental health
file was maintained by the New York State Office of Mental Health, not DOCS, and
that the Attica IRC so testified, and thus while such records were physically
within the walls of Attica, they were not available to DOCS employees or staff.
Pursuant to Mental Hygiene Law (MHL) §§33.13(a) and (c), each
patient's clinical records could not be released to anyone outside of the Office
of Mental Health (OMH), including DOCS. Each of the references numbered 1
through 5 above are derived from OMH records, and remained confidential and
unaccessible to the IRC or DOCS. The exceptions are contained in MHL
§§ 33.13(c) (1) through(13), and specifically subdivision (c)(10)
which addresses the release to correctional facilities, inter alia, for
imminent parole or for participation in certain types of programs. In sum, the
statute contains no exception permitting the release of the information from OMH
to DOCS for the purposes sought by Claimant, and thus it may be said that the
records containing putatively identifiable information with respect to Claimant
herein were not available to DOCS officials. Claimant has failed to demonstrate
that she was otherwise identifiable in the file maintained and available to
Claimant posits a theory that negligently caused psychic harm is a compensable
loss, but her reliance upon Johnson v State of New York, 37 NY2d 378, is
misplaced. In Johnson, there was emotional harm in the negligent
misinformation provided to a daughter that her mother had died. The Court of
Appeals noted there however, that the key to liability was the hospital's duty,
borne or assumed, to advise the proper next of kin of the death of a patient.
In the claim at bar the duty extended to the predesignated individual, not the
Claimant, and in any event, there was no misinformation and no false message
provided to Claimant. To the extent that the claim herein can be read as
asserting a cause of action sounding in the negligent or intentional infliction
of emotional harm, it cannot survive this motion. As a matter of public policy,
the Defendant may not be held answerable for the intentional infliction of
emotional harm (Wheeler v State of New York, 104 AD2d 496, 498).
Stonecipher v Bossuot-Lundy Funeral Home, 238 AD2d 946, is comparable to
the claim at bar, as the Fourth Department reversed and dismissed a complaint
which alleged the negligent infliction of emotional distress arising out of the
failure to inform plaintiff when her father was buried. In Stonecipher,
there was no promise or duty to inform the plaintiff of the date of the burial
or that plaintiff requested that defendant do so. With no duty, there can be no
breach and hence no liability.
The most troubling aspect of these proceedings deals with the seeming
limitation on the cremation of the decedent's remains. First, the operative
document in question, DOCS Directive 4013, recites that upon an inmate's death
the Community Chaplain shall "Notify the next of kin or other pre-designated
individual of the inmate's death" (Exhibit G to Claimant's papers). Here, the
decedent himself made an election upon his arrival at Attica in which he
selected Jessie Wingate as the pre-designated individual to be contacted in the
event of an emergency. That choice was reiterated by the "notification"
telephone call decedent made upon his arrival at Attica to Thomas Wingate
(Exhibit 3). Therefore, the decedent, by making that choice, did not select "an
identifiable next of kin." Claimant herein is obviously a next of kin, being
decedent's mother, but for purposes of application of Directive 4013, Claimant
is not an ‘identifiable' next of kin, inasmuch as the decedent, for
whatever reason(s), designated Jessie Wingate.
Directive 4013, entitled Inmate Deaths-Administrative Responsibility, in
Section V. Disposal of Remains, B. Facility Burial/Cremation, states: "The
facility shall not, absent approval of identifiable next of kin, dispose of
inmate remains by cremation." While the term "next of kin" contemplates persons
entitled to share in the decedent's property under the law of intestate descent
(EPTL 2-1.1, 1-2.5), Claimant was not, in the context of this directive, an
identifiable next of kin, and thus has no standing to allege negligence with
respect to the cremation of the decedent. Therefore, as to Claimant's
assertions with respect to the cremation of her son's remains, the Defendant's
motion is granted and the claim is dismissed.
I intentionally do not address the right of Jessie Wingate, putatively the
identifiable next of kin as the decedent's pre-designated individual, to have
brought a claim alleging damages with respect to her approval/rejection of the
cremation of the decedent. I similarly do not address the question of whether
an alleged violation of such a directive, in and of itself, supports a cause of
action sounding in negligence.
What is clear to me is that the Defendant followed this directive and
discharged its duties thereunder by timely notifying the pre-designated
individual. It has violated no duty that it owed to Claimant. When the
pre-designated individual notified the Defendant that the telephone numbers for
the decedent's mother and grandmother were disconnected, no further or
additional duty was imposed upon the Defendant. In short, the Defendant did
what it was supposed to do with respect to proper notification of the decedent's
death, and, regardless of whether the pre-designated individual or the next of
kin sues, the conduct here does not support a claim for negligent infliction of
It is possible that a full-scale search might have located the Claimant prior
to her son's cremation, and might have afforded her the opportunity to conduct
funeral services of her choice. However, in the absence of any statutory or
common-law duty, and given the Defendant's proper and timely contact with the
decedent's personal choice for such notifications, the Defendant cannot and will
not be held answerable in damages. Accordingly, the motion is granted and the
claim is dismissed.
Having so ruled, it would be insensitive for me to ignore Claimant's pain in
the loss of her son or fail to note the unfortunate manner in which she learned
the news of his death. Nonetheless, sympathy and empathy cannot be transformed
into liability, and I have determined, given the undisputed facts, the standing
and duties of the parties, and the absence of the breach of any duty owed or any
negligence, that no pertinent questions of fact remain, and that, as a matter of
law, the claim must be dismissed.