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Kellogg v. Office of the Chief Medical Examiner of the City of New York9/15/2004
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
The following novel legal issues, each of which is an issue of first impression, are presented by defendant's motion for summary judgment and plaintiff's cross-motion for summary judgment:
1. Is a prayer for relief in a complaint an "application" to the Court (within the meaning of General Municipal Law Section 50-e) for the purpose of seeking permission for the late filing of a notice of claim; or is the failure to bring a motion or special proceeding fatal to plaintiff's complaint?
2. Can the next of kin of a deceased person assert a claim for violation of the Human Rights law on behalf of the deceased with respect to the post death treatment of the body of the deceased?
FACTS AND PROCEDURAL HISTORY
This is a case alleging, in essence, a wrongful autopsy on the body of the decedent Junius Kellogg, who died at the age of 71 at the Bronx Veterans Medical Center after being removed, at his own request, from a life support system. Junius Kellogg was rendered quadriplegic by an automobile accident which occurred 44 years prior to his death.
The complaint in this action asserts two causes of action. Plaintiff, the administrator of the Estate of Junius Kellogg, in both an individual and representative capacity, seeks, in the first cause of action in the complaint, compensatory and punitive damages for intentional infliction of emotional distress, arising out of the alleged unauthorized autopsy conducted by the Office of the Chief Medical Examiner on the body of the decedent Junius Kellogg. In a second cause of action, plaintiff seeks similar damages based on the allegation that the autopsy constituted an unlawful discrimination predicated on decedent's disability.
The defendant City of New York previously moved pursuant to CPLR 3211 to dismiss each cause of action and/or for summary judgment pursuant to CPLR 3212. Defendant asserted, in essence, that the New York City Charter provided, as a matter of law, authority and discretion for the Office of the Chief Medical Examiner (OCME) to perform an autopsy on the body of the decedent Junius Kellogg. Defendants claimed that the decedent died "suddenly when in apparent health" and in a "suspicious or unusual manner," because, among other things, "it was suspected [by the Office of the Chief Medical Examiner] that the automobile accident [which occurred some 44 years earlier] contributed to death." Motions made both by defendant and plaintiff for summary judgment were denied without prejudice to renew and reargue upon a sufficient record. The pertinent contentions, and this Court's findings and legal conclusions are set forth in a prior opinion of this court; all of which are subsumed herein by reference. (See, Kellogg v. Office of Chief Medical Examiner of City of New York, 189 Misc.2d 756, 735 N.Y.S.2d 350 ).
Plaintiff now renews the motion for summary judgment based, in part, on the deposition testimony of Dr. Schmutter, the medical examiner who made the decision to conduct the autopsy. Dr. Schmuter denied that any suspicion of criminal activity or of sudden death played a part in the decision to conduct an autopsy. However, based upon the suspicion that the 44 year old automobile accident, in her opinion, contributed to the death of the decedent, she characterized the death as "accidental", and therefore eligible for autopsy. In the autopsy report the "cause of death" was stated, among other things, to be primarily "atherosclerotic and hypertensive disease" with an alleged contribution by "respiratory and gastrointestinal complications of quadriplegia due to rem
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