Dick v. City of New York

Appellate Division of the Supreme Court of New York

Dick v. City of New York

11 A.D.3d 239, 783 N.Y.S.2d 4, 2004 N.Y. App. Div. LEXIS 11674

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 7, 2004

StatusPublished

Cited by4 cases

This text of 11 A.D.3d 239 (Dick v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dick v. City of New York, 11 A.D.3d 239, 783 N.Y.S.2d 4, 2004 N.Y. App. Div. LEXIS 11674 (N.Y. Ct. App. 2004).

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Opinion

[240]*240Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered August 28, 2003, which, to the extent appealed from, denied plaintiffs’ motion for leave to file an amended complaint, unanimously affirmed, without costs.

In asserting that an earlier decision in November 2002 erroneously dismissed their claims relating to the mishandling of decedent’s body, in light of New York’s long-recognized cause of action for emotional distress due to interference with possession of a dead body, plaintiffs are disputing a decision and order which they never appealed. Accordingly, this Court lacks authority to review that 2002 order (see Hecht v City of New York, 60 NY2d 57, 61 [1983]). Even if the 2002 order were to be considered as nonfinal when issued, in that it authorized plaintiffs to move for leave to amend their complaint, plaintiffs permitted it to become final by operation of its terms when they failed to file an amended complaint within the time allotted (see e.g. Crystal v Manes, 130 AD2d 979 [1987]).

The only viable argument remaining pertains to the order appealed from, i.e., the determination that plaintiffs’ notice of claim was insufficient to apprise the City of a claim of unauthorized autopsy (see General Municipal Law § 50-e [2]). The record reflects that that determination was appropriate. Concur— Nardelli, J.P., Mazzarelli, Sullivan, Williams and Catterson, JJ.

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[240]*240Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered August 28, 2003, which, to the extent appealed from, denied plaintiffs’ motion for leave to file an amended complaint, unanimously affirmed, without costs.

In asserting that an earlier decision in November 2002 erroneously dismissed their claims relating to the mishandling of decedent’s body, in light of New York’s long-recognized cause of action for emotional distress due to interference with possession of a dead body, plaintiffs are disputing a decision and order which they never appealed. Accordingly, this Court lacks authority to review that 2002 order (see Hecht v City of New York, 60 NY2d 57, 61 [1983]). Even if the 2002 order were to be considered as nonfinal when issued, in that it authorized plaintiffs to move for leave to amend their complaint, plaintiffs permitted it to become final by operation of its terms when they failed to file an amended complaint within the time allotted (see e.g. Crystal v Manes, 130 AD2d 979 [1987]).

The only viable argument remaining pertains to the order appealed from, i.e., the determination that plaintiffs’ notice of claim was insufficient to apprise the City of a claim of unauthorized autopsy (see General Municipal Law § 50-e [2]). The record reflects that that determination was appropriate. Concur— Nardelli, J.P., Mazzarelli, Sullivan, Williams and Catterson, JJ.

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Bluebook (online)

11 A.D.3d 239, 783 N.Y.S.2d 4, 2004 N.Y. App. Div. LEXIS 11674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dick-v-city-of-new-york-nyappdiv-2004.

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