Anaya v City of New York

2024 NY Slip Op 30563(U)

February 23, 2024

Supreme Court, New York County

Docket Number: Index No. 154130/2023

Judge: Hasa A. Kingo

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publication.
154130/2023 ANAYA, ALBERTO vs. CITY OF NEW YORK ET AL

Motion No. 001

Page 1 of 7

The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 

13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30

were read on this motion to/for DISMISS .

With the instant motion, defendant, New York City Health and Hospitals Corporation 

(“defendant”), seeks an order: dismissing plaintiffs’ complaint in its entirety for failure to state a 

claim upon which relief may be granted pursuant to CPLR §3211(a)(7); dismissing the action as 

to plaintiff ALBERTO ANAYA (“Anaya”) pursuant to CPLR § 3211(a)(3) for a lack of legal 

capacity to sue or, in the alternative, for an immediate trial of any narrow issue raised pursuant to 

CPLR § 3211(c); and for such other and further relief this court may deem just and proper. 

Plaintiffs oppose the motion and cross move for an order: granting plaintiffs summary judgment 

on the issue of whether defendant interfered with plaintiffs’ right to possession of plaintiffs’

decedent’s remains pursuant to CPLR § 3212; and granting plaintiffs leave to amend the complaint 

to add causes of action for negligent infliction of emotional distress and intentional infliction of 

emotional distress, as well as to add new defendants pursuant to CPLR § 3025(b).

BACKGROUND AND ARGUMENTS

Plaintiffs allege that on Saturday evening, May 7, 2022, at 6:55 pm, plaintiffs’ decedent, 

Myriam Hoyos De Baldrich (“decedent”), was struck and rendered unconscious by a Brooklynbound “L” train in the subway tunnel beneath the intersection of Avenue of the Americas and West 

14th Street in Manhattan. Decedent was transported by ambulance to Bellevue Hospital

(“Bellevue”) and admitted on that date. In the complaint, plaintiffs allege that at some point “on 

the aforementioned date,” decedent “possessed written proof of her identity on her person.” 

Moreover, in plaintiffs’ notice of claim, it is asserted this “proof of identity” was “a piece of paper 

upon which her name was written.” Decedent’s next of kin did not know where she was. Plaintiffs 

allege that on May 8, 2022, they “reported her missing to the Nassau County Police Department.”

On May 9, 2022, decedent was pronounced brain dead at Bellevue. Plaintiffs allege that 

Bellevue then notified LiveOnNY, “a nonprofit organization that coordinates organ harvesting and 

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. HASA A. KINGO PART 05M

Justice 

---------------------------------------------------------------------------------X INDEX NO. 154130/2023

 MOTION DATE 06/21/2023

 MOTION SEQ. NO. 001

DECISION + ORDER ON 

MOTION

ALBERTO ANAYA,

 Plaintiff, 

- v -

CITY OF NEW YORK, NEW YORK CITY HEALTH AND 

HOSPITALS CORPORATION,

 Defendant. 

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FILED: NEW YORK COUNTY CLERK 02/23/2024 05:01 PM INDEX NO. 154130/2023

NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 02/23/2024

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Motion No. 001

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donation.” Plaintiffs allege that on May 12, 2022, Bellevue executed a document authorizing 

LiveOnNY to harvest decedent’s organs for transplantation. Plaintiffs state that “on or about May 

17, 2022,” decedent was identified by the City of New York Office of the Chief Medical 

Examiner.” Plaintiffs were notified of decedent’s death on the day after she was identified. 

Defendant asserts that plaintiffs’ complaint should be dismissed in its entirety. In support 

of this motion, defendant argues that, according to the New York Gift Act (“Gift Act”), Bellevue 

Hospital was obligated to notify LiveOnNY as soon as decedent's death became imminent (N.Y. 

Public Health Law § 4351[1][a]). Subsequently, defendant contends that the responsibility to 

identify and locate an individual capable of consenting to the donation of decedent's organs solely 

rested with LiveOnNY (N.Y. Public Health Law § 4362[2]). Consequently, under New York law, 

defendant maintains that Bellevue Hospital, along with its doctors, nurses, and staff entrusted with 

preserving the decedent's life, were legally barred from participating in any activity related to the 

procurement of organs or tissue for transplantation, including the solicitation of consent for 

donation (N.Y. Public Health Law §§ 4360[8]; 4362[2]).

Defendant also asserts that, as per plaintiffs’ allegations in paragraphs 43 and 44 of their 

complaint, when decedent remained unidentified, defendant granted administrative consent to 

donate decedent's organs in accordance with the Gift Act. Furthermore, defendant emphasizes that 

the Gift Act stipulates that a person acting in good faith in compliance with its terms is immune 

from liability for damages in any civil action related to their actions (N.Y. Public Health Law § 

4306[3][a][i]). As plaintiffs’ complaint fails to allege that defendant acted in bad faith or engaged 

in any conduct that would negate its entitlement to immunity, defendant submits that plaintiffs’ 

allegations are not viable as a matter of law. Defendant further argues that plaintiff ALBERTO 

ANAYA’s claims should be dismissed because plaintiff FREDDYS BALDRICH HILDER has 

priority.

In opposition, plaintiffs assert that defendant’s argument regarding the loss of sepulcher is 

flawed, as it stems from an inaccurate interpretation of the Gift Act, indicating a fundamental 

misunderstanding of both the statute and plaintiffs’ contentions. Plaintiffs state that defendant fails 

to understand that the Gift Act exclusively applies to hospital patients who, at a minimum, have 

been identified. Contrarily, plaintiffs argue that in this case, decedent's identity was never 

established before Bellevue allowed the harvesting of her organs.

While acknowledging that the statute outlines the responsibilities of hospitals and 

procurement organizations, plaintiffs contend that it remains silent on the duties concerning a 

patient whose identity is unknown. Additionally, plaintiffs assert that there is no language in the 

statute indicating that the duty to ascertain the identity of an unidentified individual rests solely 

with LiveOnNY or any other procurement organization. Plaintiffs’ take umbrage with defendant’s 

omission of any citation of case law supporting its interpretation of the statute, emphasizing that 

this absence weakens defendant's position.

Plaintiffs further argue that defendant's conflation of donor status and identity proves 

detrimental to its motion, as plaintiffs' claims specifically revolve around defendant's failures in 

attempting to ascertain the decedent's identity. Plaintiffs assert that, fundamentally, this case does 

not revolve around decedent's donor status, a failure to identify such status, or any lapses leading 

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Motion No. 001

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to a violation of donor status. There are also no allegations or causes of action for violations of the 

Public Health Law. Consequently, plaintiffs submit that the Gift Act is not implicated in any way 

in this case. Indeed, while plaintiffs submit that defendant improperly authorized the harvesting of 

decedent's organs, they simultaneously emphasize that their mental anguish does not stem from 

the potential violation of decedent's donor status. Instead, the mental anguish at the core of this 

action is rooted in plaintiffs' fundamental right to immediate possession of the decedent's body, 

notice of her death, and the proper treatment of her remains.

Moreover, plaintiffs assert that they should be granted summary judgment on the issue of 

whether defendant interfered—one of the elements of a loss of sepulcher claim—with their right 

to possess decedent's remains. Plaintiffs contend that this is especially pertinent to the extent that 

defendant argues that it had no duty to attempt to identify decedent or locate next of kin, which

plaintiffs submit can be viewed as an admission that it failed to do so. 

Additionally, plaintiffs assert that they are entitled to summary judgment on the matter of 

whether defendant interfered—considered one of the elements in a loss of sepulcher claim—with 

their right to possess decedent's remains. Plaintiffs argue that this is particularly relevant given 

defendant's assertion that it had no obligation to attempt to identify decedent or locate next of kin, 

a stance that plaintiffs posit can be construed as an admission of its failure to fulfill these duties.

As to negligent infliction of emotional distress (“NIED”), plaintiff’s challenge defendant’s

argument that this cause of action should be dismissed because it is not separately pleaded in the 

complaint and is duplicative of the loss of sepulcher claim. Plaintiffs submit that while there is no 

separate section in the complaint for this cause of action, NIED is specifically pleaded. Indeed, 

plaintiff’s cite to the Appellate Division, First Department’s, recent recognition that a breach of a 

duty of care resulting directly in emotional harm is compensable, even though no physical injury 

occurred, as long as the mental injury is a direct result of the breach (Brown v. New York Design 

Ctr., Inc., 215 AD3d 1, 9 [1st Dept 2023]). Here, plaintiffs submit that they have pleaded detailed 

and specific allegations describing defendant’s failures to attempt to identify decedent or locate 

and contact next of kin. Plaintiffs further highlight that plaintiffs also pleaded how this breach 

caused plaintiffs’ severe mental anguish. Plaintiffs also submit that emotional injury can be 

presumed in a sepulcher case. Accordingly, plaintiffs contend that the NIED claim is sufficiently 

pleaded despite not having a separate section in the complaint dedicated to it. Plaintiffs further

submit that since NIED and loss of sepulcher have different elements, defendant’s motion to 

dismiss plaintiffs’ NIED claims as duplicative is premature at this point and should be resolved on

summary judgment.

As to intentional infliction of emotional distress (“IIED”), plaintiffs cross move for leave 

to amend the complaint. Since the filing of the initial complaint, plaintiffs submit that investigation 

has revealed numerous facts that can underlie an IIED cause of action. Plaintiffs argue that leave

should be granted here because the statute of limitations has not expired and the notices of claim 

timely served on defendant stated claims arising out of defendant’s “intentional actions” and 

“intentional torts” resulting in “mental anguish.”

Finally, plaintiffs challenge defendant’s argument that plaintiff ALBERTO ANAYA’s 

claims should be dismissed because plaintiff FREDDYS BALDRICH HILDER has priority. 

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Motion No. 001

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Plaintiffs argue that the rules of priority are created by, and for the purposes of, the Gift Act to 

determine who has the first right to make a gift of a loved one’s organs. As plaintiffs submit that 

the Gift Act is not applicable to their claims, they likewise argue that this court should summarily 

deny defendant’s application. Even if the Gift Act were applicable here, plaintiffs argue that 

defendant’s motion is premature and should be resolved on summary judgement after it is 

determined whether plaintiff FREDDYS BALDRICH HILDER indicated a willingness to control

the disposition of decedent’s remains or yielded to plaintiff ALBERTO ANAYA. 

In response, defendant reiterates the arguments set forth in its moving papers and submits 

that plaintiffs have failed to sustain their burden on summary judgment. Defendant likewise

opposes plaintiffs’ proposed amendment to the complaint.

DISCUSSION

Motion to Dismiss

When a party moves to dismiss a complaint under CPLR § 3211(a)(7), the standard is 

whether the pleading states a cause of action, not whether the proponent of the pleading has a cause 

of action (African Diaspora Mar. Corp. v Golden Gate Yacht Club, 109 AD3d 204 [1st Dept 

2013]). Although bare legal conclusions are not presumed to be true on a motion to dismiss under 

CPLR § 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord 

plaintiffs the benefit of every possible favorable inference, and determine only whether the facts 

as alleged fit within any cognizable legal theory (511 W. 232nd Owners Corp. v Jennifer Realty 

Co., 98 NY2d 144 [2002]). Whether a plaintiff can ultimately establish its allegations is not taken 

into consideration in determining a motion to dismiss (Philips S. Beach, LLC v ZC Specialty Ins. 

Co., 55 AD3d 493 [1st Dept 2008]). 

The Gift Act, detailed in New York Public Health Law Article 43, applies to hospital 

patients who have been identified (see generally N.Y. Public Health Law Article 43). Indeed, N.Y. 

Public Health Law § 4306-b states as follows:

This section applies in cases where a prospective donor who has made 

an anatomical gift or whose donation status has not been ascertained is 

in a hospital. The hospital shall not withdraw any measures that are 

necessary to maintain the medical suitability of the part until the 

procurement organization has had the opportunity to advise the 

applicable persons as set forth in section forty-three hundred one of this 

article of the option to make an anatomical gift, has documented or acted 

upon that decision, or has ascertained that the individual expressed a 

contrary intent. The procurement organization shall act expeditiously 

with respect to its responsibilities under this section

Here, one of plaintiffs’ principal claims is that decedent’s identity was never ascertained 

before Bellevue allowed her organs to be harvested. Nevertheless, defendant claims that dismissal 

of plaintiffs’ loss of sepulcher cause of action is warranted on account of contention that it is

immune from liability arising from the harvesting of decedent’s organs since the duty to locate an 

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individual who could consent rested exclusively with LiveOnNY pursuant to the Gift Act.

Defendant’s position, construing plaintiffs’ complaint in a light most favorable, is without merit. 

To be sure, while the statute discusses the duties of hospitals and procurement organizations in 

dealing with a patient whose donor status is unknown, the statute is completely silent as to the 

duties in dealing with a patient whose identity is unknown. Indeed, there is no language in the 

statute stating the duty to ascertain the identity of an unidentified individual rests exclusively with 

a procurement organization. Defendant cites no controlling authority for its interpretation of the 

statute. By contrast, plaintiffs cite to applicable case law, including case law from the Appellate 

Division, First Department, allowing a cause of action for the common law right of loss of 

sepulcher against a hospital where, as is pleaded here, it allegedly fails to attempt to identify a 

patient or locate her next of kin (see Rugova v City of New York, 132 AD3d 220, 230 [1st Dept

2018] citing Matter of Terrace Ct., LLC v New York State Div. of Hous. & Community Renewal, 

79 AD3d 630 (1st Dept 2010]["it is the role of this [c]ourt to follow its precedents") aff’d 18 NY3d 

446 [2012]; Melfi v. Mount Sinai Hosp., 64 AD3d 26, 38-39 [1st Dept 2009]; Green v Iacovangelo, 

184 AD3d 1198, 1201 [4th Dept 2020]). Plaintiffs correctly underscore the fact that they have not 

pleaded any allegations or causes of action premised on purported Public Health Law violations.

Rather, plaintiffs’ allegations are premised on defendant’s purported failure to attempt to identify 

decedent or locate her next of kin. In that respect, the Gift Act is not implicated at all. 

Consequently, defendant’s attempt to dismiss plaintiff’s loss of sepulcher claim is denied. 

As to NIED, the court notes that a NIED can be premised on a breach of a duty of care 

resulting directly in emotional harm, even where no physical injury occurred, if the mental injury 

is a direct result of the breach (Brown v. New York Design Ctr., Inc., 215 AD3d 1, 9 [1st Dept

2023]). Here, plaintiffs have pleaded detailed and specific allegations describing defendant’s

failures to attempt to identify decedent or locate and contact her next of kin as well as how 

defendant’s purported breach caused plaintiffs’ mental anguish (see Plaintiffs’ Complaint ¶¶ 27-

99). Accordingly, construing the complaint in a light most favorable, defendant’s application to 

dismiss plaintiff’s NIED claim is denied. 

Likewise, there is no merit to defendant’s argument that the NIED claim is duplicative of 

the loss of sepulcher claim, as both causes of action contain different elements (see Shepherd v. 

Whitestar Dev. Corp., 113 AD3d 1078 [4th Dept 2014]). Defendant may, however, renew its 

application to dismiss plaintiffs’ NIED claims on summary judgment if defendant elects to do so. 

Lack of Capacity to Sue

The doctrine of standing is a component of the broader question of justiciability and is 

designed to ensure that a party seeking relief possesses a sufficiently recognizable interest in the 

outcome, presenting the court with a dispute capable of judicial resolution (Community Bd. 7 v. 

Schaffer, 84 NY2d 148, 154–155 [1994]). The most crucial requirement for standing is the 

presence of “injury in fact—an actual legal stake in the matter being adjudicated” (Society of the 

Plastics Indus., Inc. v. County of Suffolk, 77 NY2d 761, 772 [1991]).

On the other hand, the doctrine of legal capacity, although similar, pertains to a litigant's 

authority to appear and bring their grievance before the court (Community Bd. 7, 84 NY2d at 155,

supra). Legal capacity to sue, or the lack thereof, often relies on the litigant’s status, such as that 

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of an infant, an adjudicated incompetent, a trustee, certain governmental entities, or, as in this case, 

a loved one.

Here, the defendant questions plaintiff ALBERTO ANAYA’s legal capacity based on the 

notion of who had the authority to dispose of decedent’s remains. Defendant’s argument, however, 

is premised on the rules of priority created by and for the purposes of the Gift Act, which is 

inapplicable here (see N.Y. Public Health Law Public Health Law § 4301[2]). Nevertheless, as 

plaintiffs correctly emphasize, even if the Gift Act were applicable, discovery will ultimately yield 

a better understanding as to whether plaintiff FREDDYS BALDRICH HILDER indicated a 

willingness to control the disposition of decedent’s remains or yielded to plaintiff ALBERTO 

ANAYA. As such defendant’s argument is premature, and would be best tailored for resolution on 

summary judgment once discovery has been exchanged (see Turner v Owens Funeral Home, Inc., 

140 AD3d 632, 634 [1st Dept 2016]). As such, defendant’s application to dismiss plaintiff 

ALBERTO ANAYA’s claims for want of capacity, is denied. 

Summary Judgment

To grant summary judgment, it must clearly appear that no material triable issue of fact is 

presented (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). The burden on the court in 

deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but 

merely to determine whether such issues exist (see Barr v. Albany County, 50 NY2d 247 [1980]; 

Miller v. Journal-News, 211 AD2d 626 [2d Dept 1995]). It is the existence of an issue, not its 

relative strength, that is the critical and controlling for the court’s consideration when making its 

determination (see Barrett v Jacobs, 255 NY520 [1931]).

Here, plaintiffs cross move for summary judgment by arguing that defendant’s contention

that it had no duty to attempt to identity decedent or locate decedent’s next of kin is tantamount to 

an admission that it did not do so. Discovery may yield information relevant to resolution of this 

issue, however, at this early stage in the proceedings, the court finds that plaintiffs have not met 

their initial burden on summary judgment, and that plaintiffs’ application for summary judgment 

must likewise be denied at this time as premature (see CPLR § 3212; see also Espinoza v FowlerDaley Owners, Inc., 171 AD3d 480 [1st Dept 2019]). Accordingly, plaintiffs’ cross motion for 

summary judgment is denied. 

Leave to Amend

“It is well settled that a request for leave to amend a complaint should be freely given, and 

denied only if there is prejudice or surprise resulting directly from the delay, or if the proposed 

amendment is palpably improper or insufficient as a matter of law” (see LDIR, LLC v DB 

Structured Prods., Inc., 172 AD3d 1, 4 [1st Dept 2019]). Indeed, “[a] party opposing leave to 

amend must overcome a heavy presumption of validity in favor of permitting amendment” (id.).

Here, plaintiffs cross move for leave to amend the complaint in the proposed form annexed 

to plaintiffs’ cross motion. Since the filing of the initial complaint, plaintiffs’ counsel submits that

its investigation has revealed numerous facts that can underlie an IIED cause of action. Notably, 

the statute of limitations has not expired and the notices of claim timely served on defendant stated 

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claims arising out of defendant’s “intentional actions” and “intentional torts” resulting in “mental 

anguish” (see Plaintiffs’ Notice of Claim, at pg. 2). Given that leave is appropriate where, as here, 

there is no prejudice or surprise to the opposing party (McCaskey, Davies & Associates, Inc. v. 

New York City Health & Hospitals Corp., 59 NY2d 755, 757 [1983]), it is axiomatic that plaintiffs’

cross motion for leave to amend the complaint, is granted. 

Based on the foregoing, it is hereby 

ORDERED that defendant’s motion to dismiss is denied to the extent that defendant’s 

request for dismissal of plaintiffs’ causes of action for loss of sepulcher and NIED, is denied; and 

it is further 

ORDERED that defendant’s motion to dismiss plaintiff ALBERTO ANAYA’s claims for 

lack of capacity to sue, is denied; and it is further

ORDERED that plaintiffs’ cross motion for summary judgment, is denied; and it is further 

ORDERED that plaintiffs’ cross motion for leave to amend the complaint, is granted; and 

it is further

ORDRERED that the amended complaint in the proposed form annexed to the moving 

papers shall be deemed served upon service of a copy of this order with notice of entry thereof.

This constitutes the decision and order of the court. 

2/23/2024

DATE HASA A. KINGO, J.S.C.

CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

GRANTED X DENIED X GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

FILED: NEW YORK COUNTY CLERK 02/23/2024 05:01 PM INDEX NO. 154130/2023

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