Wilensky v. Greco

74 Misc. 2d 512, 344 N.Y.S.2d 77, 1973 N.Y. Misc. LEXIS 1903

• Court: New York Supreme Court
• Decided: May 25, 1973
• Status: Published

Opinion

Edward M. O’Gorman, J.

This is an application brought on by order to show cause to enjoin the Coroner of Orange County and the physician appointed by him from performing an autopsy upon one Stephen Wilensky, the son of petitioners. Petitioners, who are orthodox Jews, feel themselves bound, by the religious law which they recognize, to prevent this autopsy, which is repugnant to their religious beliefs.

Petitioners’ son, age 16, a resident of Sullivan County, having been involved in a serious highway accident, died at approximately 9:00 a.m. on May 25, 1973, after the performance of surgery upon him in an Orange County hospital. Because the death was due to casualty, the Coroner was called to investigate, pursuant to the provisions of section 673 of the County Law. The Coroner thereafter appointed a physician to conduct an autopsy to determine the cause of death. This proceeding followed.

The proof taken at the hearing shows that the petitioners are members of an orthodox Jewish congregation, and has established that one of the tenets of their religion prohibits any procedure in the nature of an autopsy after death on the body of a deceased. The proof also established that the deceased sustained multiple serious injuries in the accident, and that the purpose of the autopsy was to determine which of the injuries was the cause of death. There was no evidence nor any suspicion of criminality or foul play involved in the accident.

Under the foregoing circumstances, it does not appear to the court, in the face of the pain to be inflicted upon the boy’s parents, that this autopsy was sufficiently ‘ ‘ necessary ’ ’, as that word is used in section 674 (subd. 3, par. [a]) of the County Law, to justify the performance of this autopsy.

The relief sought by petitioners will be granted, and the autopsy will be enjoined.