The opinion
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
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publication.
FILED: NEW YORK COUNTY CLERK 02/23/2024 05:01 PM INDEX NO. 154130/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 02/23/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. HASA A. KINGO PART 05M
Justice
---------------------------------------------------------------------------------X INDEX NO. 154130/2023
ALBERTO ANAYA,
MOTION DATE 06/21/2023
Plaintiff,
MOTION SEQ. NO. 001
-v-
CITY OF NEW YORK, NEW YORK CITY HEALTH AND
DECISION + ORDER ON
HOSPITALS CORPORATION,
MOTION
Defendant.
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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 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
(“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
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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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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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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 Fowler-
Daley 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
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