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

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001 (U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.154130/2023 ANAYA, ALBERTO vs. CITY OF NEW YORK ET AL

Motion No. 001 Page 1 of 7 The following e

- filed documents, l isted 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 H ealth 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 de em 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 p l a i n t i f f s ’

decedent’s remains pursuant to CPLR § 3 212 ; a nd 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)

.

BACK G RO UND 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 Brooklyn

bound “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 ( “ B e l l e v u e ” ) and admitted on that date

. In the comp laint, plaintiffs allege that at some point “on

the aforementioned date

, ” decedent “poss essed written proof of her identity on her person

. ” Moreover, in plaintiffs’ n otice of c la im, 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 Departmen t

. ”

On May 9, 2022, decedent was pronounced brain dead at Bellevue

. Plaintiffs allege that

Bellevue t h e n 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 06/21/2 023

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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Motion No. 001 Page 2 of 7 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

, ” dece dent 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

.

D efendant asserts that plain tiffs ’ 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]). Con sequently, 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 org ans or tissue for transplantation, including the solicitation of consent for donation (N.Y. Public Health Law §§ 4360[8]; 4362[2]).

D efendant also asserts that, as per plaintiff s ’ allegations in paragraphs 43 and 44 of their complaint, when decedent rema ined 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 te rms is immune from liability for damages in any civil action related to their actions (N.Y. Public Health Law § 4306[3][a][i]). As p laintiff s ’ complaint fails to allege that def endant acted in bad faith or engaged in any conduct that wou ld negate its entitlement to immunity

, defendant submits that p laintiffs’ allegations are not viable as a matter of law

. Defendant further argues that plaintiff ALBERTO

ANAYA’s claims should be dismissed because p laintiff 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 plaint iffs ’ contentions. P laintiffs 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 w as 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 t hat 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. P laintiffs’ take umbrage with defendant ’ s omission of any citat ion of case law supporting its interpretation of the statute, emphasizing that

this absence weakens defendant's position.

P laintiffs 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 Page 3 of 7 to a violation of donor status. There are also no allegations or causes of action for violations of the Public Health Law. Consequently, plai ntiffs submit that the Gift Act is not implicated in any way in this case. Indeed, while plai ntiffs submit that defendant improperly authorized the harvesting of decedent's organs, they simul taneously emphasize that their mental anguish does not stem from the potential violation of decedent's donor status. Instead, the mental angu ish 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 judg ment 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. Plai ntiffs 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 su bmi t 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. Pla intiffs 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 emo tional distress (“NIED”), plaint iff ’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. Plain tiffs submit that w hile there is no separate section in the complaint for this cause of action, NIED is specifically plead ed

. Indeed

, plai ntiff ’s cite to the Appe llate Divisi on, 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 A D 3d 1, 9 [1 st Dep t 2023 ] ). Here, p laintiffs submit that they have pleaded detailed and specific allegations describing defendant ’s failures to attempt to identify decedent or loca te
and contact next of kin. Plaintiffs further high light that plai n ti ffs also pleaded how this breach

caused p laintiffs’ severe mental anguish. Plai ntiffs also sub mit that emotional injury can be presumed in a sepulcher case. Accordingly, plaintiff s 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 differen t elem ents, def endant ’s motion to

dismiss p laintiffs’ NIED claims as duplicative is premature at this point and should be resolved o n summary judg ment.

As to intentional infliction of emotional distress (“IIED”), p laintiffs 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. Pla intiffs argue that leave should be granted here because the statute of limitations has not expired and the notices of claim timely served on d efendant stated claims arising out of d efendant ’ s “intentional actions” and

“intentional torts” res ulting in “mental anguish.”

Finally, p laintiffs challenge defenda nt ’s argument that p laintiff ALBERTO ANAYA’s

claims should be dismissed because p laintiff FREDDYS BALDRICH HILDER has priority. 

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Motion No. 001 Page 4 of 7 Plaintif fs argue that the rules of priority are created by

, and for the purposes of

, the Gift Act to

determ ine who has the first right to make a gift of a loved one’s organs. As plai n tiffs sub m i t that

the Gift Act is not applicable to their claims, they likewise ar gue th at this court should summarily

den y defendant ’s application

. Even if the Gif t Ac t were applicab le he re, plaintiffs argue that

def endant ’s motion is premature and should be resolved on summar y judgement after it is

determined whether p laintiff FREDDYS BALDRICH HILDER indicated a willingness to control the disposition of d ecedent’s remains or yielded to p laintiff ALBERTO ANAYA.

In re sponse, defendan t reiterates the ar g u ments set forth in its moving papers and su bmits that plain tiffs have failed to sustain their burden on summary judgment

. D e f e n d a n t l i k e w i s e

o p p o s e s p l a i n t i f

f s ’ p r o p o s e d a m e n d m e n t t o t h e c o m p l a i n t

.

DISCUSSI ON

M otio n 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 in ference, 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 considerat ion in determining a motion to dismiss ( Philips S. Beach, LLC v ZC Specialty Ins.

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

The Gift Act , detail ed in New York Public Health Law Article 43

, applies to hospital patient s who have been identified ( see gene rally N.Y. Public Health Law Article 43 ). Indeed

, N.Y. Public Health Law § 4306

- b states as follows :

T his section applies in cases where a prospective dono r 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

contr ary intent. The procurement organization shall act expeditiously with respect to its responsibilities under this section

Here, one of plain tiffs ’ principal claims is that d ecedent’s identity was never ascertained

before Bellevue allowe d her organs to be harvested. Nevertheless , defe ndant claims that dismissal

of plaintiffs ’ loss o f sepulcher cause of action is wa rranted on account of contention that it is immune from liability arising from the harvesting of d ecedent’s organs s i nce the duty to locate an 

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Motion No. 001 Page 5 of 7 individual who could consent rest ed exclusively with LiveOnNY pursuant to the Gift Ac t.
Defendant ’s pos ition, construing plaint iffs ’ complaint in a light most fa vorable, is without merit.

T o be sure, w hile 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, t here is no language in the statute stating the duty to ascertain the identity of an unidentified individual rests exclusively with

a procurement organization

. Def endant cit es no controlling auth ority for its interpretation of the

statu te. B y contrast, plaintiffs cit e to appli cable case law, in cluding case law from the Appellate

Di vision, F irst Dep art ment, allowing a cause of action for the common law right of loss of sepulcher against a hospital where, as is plead ed here, it alleged ly fails to attempt to identify a patient or locate her next of kin ( see Rugova v City of New York , 132 A D 3d 220, 230 [ 1st Dep t
2018 ] citing Matter of Terrace Ct., LLC v New York State Div. of Hous. & Community Renewal

, 79 AD3d 630 (1 st Dep t 2010 ][ "it is the role of this [c] o urt to follow its precedents") aff ’ d 18 NY3d

446 [ 2012 ] ; Melfi v. Mount Sinai Hosp ., 64 A D 3d 26, 38

- 39 [ 1st Dep t 2009 ] ; Green v Iacovangelo

, 184 A D 3d 1198, 1201 [ 4th Dep t 2020 ])

. Plaintiffs correctly u nders core the fact that they have no t plea ded a ny al legations or causes of action premised on purported Public Health Law violations.

Rath er, plaintiffs ’ allega tion s are premi s ed on def end ant ’s purpo rted failu re to attempt to identify

de ce dent or locate her next of kin. In that respect

, the Gif t Act is n ot implicated at all. Consequently

, defendant ’s attem pt to dismiss plaintiff’s loss of sepulcher claim is d en ied.

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 A D 3d 1, 9 [ 1st Dep t
2023 ])

. Here

, p laintiffs have pleaded detailed and specific allegations describing d e fendant ’s failures to attempt to identify decedent or locate and contact her next of kin as well as ho w defendant ’s purporte d breach caused plaintiffs ’ ment al anguish ( see Plai ntiffs ’ Complaint ¶ ¶ 27

- 99). Acc ordingly, construing the complaint in a light most fa vor able, def end ant ’s application to
di smiss plaintiff ’s NIE D clai m is d enied.

Likewise, there is no merit to defendant ’s argument that the NIED claim is duplicati ve of the loss of sepulcher claim, as both causes o f act ion contain differen t element s ( see Shepherd v. Whitestar Dev. Corp ., 113 A D 3d 1078 [ 4th Dep t 2014 ] )

. Defendant may, however, renew its application to dismiss plaintiff s ’ N IED cla ims on summary judg ment if defendant elects to do so

.

Lac k of Capacit y to Sue

The doctrine of standing is a component of the broader question of justiciabil ity 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 N Y 2d 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 N Y 2d 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 N Y 2d at 155,

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

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Motion No. 001 Page 6 of 7 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

n otion of who had the au thority to dis pose of dece dent ’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 inap plicable here ( see N.Y. Public Health Law Public Health Law § 4301 [ 2 ] ). Nevertheless

, as

p laintiffs correc tly emphasize, ev en i f the Gi ft Ac t were app lica b le, discover y will ultimately y ie ld

a better understanding as to whether p laintiff FREDDYS BALDRICH HILDER indicated a willingness to control the disposition of d ecedent’s remains or yielded to p laintiff ALBERTO

ANAYA . As such defendant ’s argument is premature , and would be best tailored for res olution on summary judgment once dis covery h as been exchanged ( see Turner v Owens Funeral Home, Inc

., 140 A D 3d 632, 634 [ 1st Dep t 2016 ] )

. As such, defendant ’s application to dismiss plaintiff

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

Summary Judgment

To grant summary judgment, it must clearly appear that no material triable issue of fact is presented ( see Alvarez v. Prospect H osp ., 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];

Mille r 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, plaintiff

s cross move for summary j ud gment by arguing that defendant ’s contention

that it had no duty to attempt to identity decedent or locate dece d ent ’s next of kin is tantamount to
an admission that it did not do so . Discovery may y iel d info rmation relev ant to resol ution of this issue, however

, at this e arly sta ge in the proceedings, the court finds that plaintiff s h a v e not met

t h e i r initial burden on summary judgment, and that plaintiff s ’ application for summary judgment

must like w ise be denied at this time as premature ( see CPLR § 3212 ; see also Espinoza v Fowler

Daley Owners, Inc. , 171 AD3d 480 [1st Dept 2019]). Acc ordingly, plai n tiff s ’ 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, plaintiff

s c ros s move for leave to amend the complaint in the proposed form annex ed to plaintiff

s ’ cro ss motion. Since the filing of the initial complaint, plai ntiff s ’ counsel submits that

its investigation has revealed numerous facts that can underlie an IIED cause of action. Notabl y, the statute of limitations has not expired and the notices of claim timely served on d efendant stated 

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Motion No. 001 Page 7 of 7 claims arising out of defendant ’s “intentional actions” and “intentional torts” resulting in “mental anguish ” ( s ee P laintiffs ’ Notice of Claim, at pg. 2 ). Giv en t hat 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 N Y 2d 755, 757 [ 1983 ]), it is axiomatic th at plaintiff s ’

c ross motion for leave to amen d the complaint , is granted.

Based on the f

oregoing, it is hereby

ORD ERE D that defendant ’s motion to dismiss is denied to t he ext ent that defendant ’s request for dismissal of plaintiffs ’ causes of act io n for l oss of sepulche r and NIED, is denied ; and

it i s f u rther

ORDERED that defendant ’s motion to d ismiss p laintiff ALBE RTO ANAYA’s claims for lack of capac ity to sue, is de n ied; and i t is further

ORD ERED that plai ntiff s ’ cross motion for summary jud gment , is denied; and it is fu rther

ORD ERED that plaintiff

s ’ cross motio n for leave to amend the c omplaint , is granted ; and

it is further

ORDRE RED 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 co urt.

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 

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