Myer Funeral Serv. Corp. v. Zucker

188 A.D.3d 1488

136 N.Y.S.3d 509

In the Matter of MYER FUNERAL SERVICE CORPORATION, Appellant,

v.Howard A. ZUCKER, as Commissioner of Health, et al., Respondents.

529212

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 20, 2020

Decided and Entered: November 25, 2020

The Crossmore Law Office, Ithaca (Andrew P. Melendez of counsel), for appellant.

Letitia James, Attorney General, Albany (Patrick A. Woods of counsel), for respondents.

Before: Garry, P.J., Lynch, Clark, Devine and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Lynch, J. Appeal from a judgment of the Supreme Court (McBride, J.), entered April 24, 2019 in Tompkins County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Health finding petitioner guilty of violating certain provisions of the Public Health Law.

Petitioner operates Herson Wagner Funeral Home in Tompkins County. On October 16, 2016, Stephen Sedlock – the manager of Herson Wagner – was contacted by the Tompkins County Department of Social Services (hereinafter DSS) to recover and dispose of the remains of a deceased individual (hereinafter decedent) whose body was at the Tompkins County morgue at Cayuga Medical Center.¹ Sedlock took preliminary steps to arrange for decedent's burial, including filing a death certificate on October 28, 2016, procuring a casket and obtaining a burial permit with a listed burial date of November 1, 2016. However, he waited until December 12, 2016 to remove decedent's body from the morgue and did not proceed with the burial until the next day.

Due to the delay, respondent Department of Health (hereinafter DOH) commenced a disciplinary action against petitioner alleging that it violated Public Health Law § 4200(1) and 10 NYCRR 77.12(g) by, respectively, "fail[ing] to bury a human body within a reasonable time after death" and "neglect[ing] a human body entrusted to its care." Petitioner answered and denied the charges. An evidentiary hearing before an Administrative Law Judge (hereinafter ALJ) ensued, at which petitioner contested the premise that decedent's body had been entrusted to its care for purposes of 10 NYCRR 77.12(g) and argued that it could not be held liable for violating Public Health Law § 4200(1) because it was attempting to obtain authorization from the appropriate next of kin to proceed with interment. Following the hearing, the ALJ issued a report sustaining both charges and recommending a $28,000 fine, finding that petitioner's delay stemmed from monetary considerations rather than a bona fide concern about the right to proceed with the burial. Upon petitioner's written exceptions, respondent Commissioner of Health (hereinafter the Commissioner) adopted the ALJ's report and recommendations in full.

Petitioner commenced this CPLR article 78 proceeding seeking to annul the Commissioner's determination on liability as "arbitrary and capricious" and taken in violation of Public Health Law § 4201(8). In that respect, petitioner argued that it was immune from liability because its delay in burying decedent's body stemmed from a dispute between decedent's cousin and son regarding the right to control decedent's remains (see Public Health Law § 4201[8] ). Petitioner also challenged the penalty imposed as an abuse of discretion.

Following joinder of issue, Supreme Court dismissed the petition. Petitioner appeals.

Petitioner argues that the Commissioner's determination that it violated Public Health Law § 4200(1) and 10 NYCRR 77.12(g) is not supported by substantial evidence. Although petitioner invoked the arbitrary and capricious standard of review before Supreme Court, the petition generally attacked the Commissioner's liability determinations based upon the proof at the evidentiary hearing, which, as noted by both parties, was required by statute in order to take disciplinary action against petitioner (see Public Health Law § 3451[3][a] ; [4][a]; see also Matter of Sorrentino v. Axelrod , 150 A.D.2d 700, 700, 541 N.Y.S.2d 574 [1989] ; Matter of Brewer Funeral Home v. Axelrod , 73 A.D.2d 991, 992, 423 N.Y.S.2d 570 [1980] ).² Accordingly, we construe the petition as raising a substantial evidence question (see e.g. Matter of White v. County of Sullivan , 101 A.D.3d 1552, 1554 n 1, 957 N.Y.S.2d 468 [2012], lv dismissed 21 N.Y.3d 988, 971 N.Y.S.2d 79, 993 N.E.2d 756 [2013] ; Matter of Brunner v. Bertoni , 91 A.D.3d 1100, 1101 n, 936 N.Y.S.2d 731 [2012] ).³ "The substantial evidence standard is a minimal standard [that is] less than a preponderance of the evidence and demands only that a given inference is reasonable and plausible, not necessarily the most probable" ( Matter of Haug v. State Univ. of N.Y. at Potsdam , 32 N.Y.3d 1044, 1045–1046, 87 N.Y.S.3d 146, 112 N.E.3d 323 [2018] [internal quotation marks, brackets and citations omitted]). "Where substantial evidence exists, the reviewing court may not substitute its judgment for that of the agency, even if the court would have decided the matter differently" ( id. at 1046, 87 N.Y.S.3d 146, 112 N.E.3d 323 [citations omitted]).

Public Health Law § 4200(1) provides that, "[e]xcept in the cases in which a right to dissect [a body] 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" (see Shipley v. City of New York , 25 N.Y.3d 645, 657, 16 N.Y.S.3d 1, 37 N.E.3d 58 [2015] ). Funeral homes commit "misconduct in the ... practice of funeral directing" ( Public Health Law § 3450[1][f] ) by, as relevant here, "neglecting ... a dead human body entrusted" to their care ( 10 NYCRR 77.12 [g]). Pertinent to the issues of entrustment and delay, "[t]he common-law right of sepulcher gives the next of kin the absolute right to the immediate possession of a decedent's body for preservation and burial or other disposition of the remains, and damages may be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent's body" ( Mack v. Brown , 82 A.D.3d 133, 137, 919 N.Y.S.2d 166 [2011] ). Correspondingly, the Legislature has enacted certain statutory provisions insulating funeral homes from civil liability in the performance of their duties. Public Health Law § 4201(7) provides immunity "for actions taken reasonably and in good faith to carry out the directions of a person who represents that he or she is entitled to control of the disposition of remains." To be protected from liability under that section, the funeral home must also establish, among other things, that it "request[ed] and receiv[ed a] written statement that such person ... [has] no knowledge that the decedent executed a written instrument ... or a will containing directions for the disposition of his or her remains and that such person is the person having priority under [ Public Health Law § 4201(2) ]" ( Public Health Law § 4201[7][b] ; see Mack v. Brown , 82 A.D.3d at 139, 919 N.Y.S.2d 166 ). Likewise, Public Health Law § 4201(8) provides immunity for refusing to provide services relating to the disposition of a decedent's remains "when control of the disposition of such remains is contested." Such immunity continues until the individual providing funeral services "receives a court order or other form of notification signed by all parties or their legal representatives to the dispute establishing such control" ( Public Health Law § 4201[8] ). Although Public Health Law § 4201 speaks to immunity from civil liability, we recognize that this same standard of reasonableness and good faith applies to whether a funeral home engaged in misconduct in fulfilling its responsibilities in this matter.

Public Health Law § 4201(2)(a) sets forth a "next of kin" hierarchy that identifies, in descending priority, which persons have the right to control the disposition of a decedent's remains. As relevant here, the child of a deceased person has a higher priority to control the disposition of that person's remains than the cousin of a deceased person (see Public Health Law § 4201[2][a][i]-[x] ). However, as relevant here, if a person of higher priority "is not reasonably available, unwilling or not competent to serve, and such person is not expected to become reasonably available, willing or competent, ... those persons of the next succeeding priority shall have the right to control the disposition of the decedent's remains" ( Public Health Law § 4201[2][b] ).

Turning first to the Commissioner's finding that petitioner violated Public Health Law § 4200(1), DOH elicited testimony from multiple witnesses that decedent's body was in an advanced state of decomposition when Sedlock retrieved it from the morgue on December 12, 2016. Three witnesses testified, either based upon their own knowledge or from complaints by morgue personnel, that decedent's body was producing a strong odor by early November, prompting morgue staff to express concern. One witness also noted that, at a certain point, the liquified by-products of decedent's remains became visible on the outside of the body bag. A medical social worker at Cayuga Medical Center testified that the length of time that decedent's body remained at the morgue was among the longest she had encountered. Although Sedlock testified that he did not notice an odor or liquid emanating from the remains when he visited the morgue between October 2016 and December 2016, "we will not weigh conflicting testimony or second guess the credibility determinations of the administrative factfinder" ( Matter of Perez v. New York State Justice Ctr. for the Protection of People with Special Needs , 170 A.D.3d 1290, 1293, 96 N.Y.S.3d 373 [2019] [internal quotation marks and citation omitted], lv denied 34 N.Y.3d 903, 2019 WL 5558996 [2019] ). In light of the foregoing, substantial evidence supports the Commissioner's determination that the approximate six-week delay...