Bamonte v Charatan
Attorneys and Parties
Brief Summary
Common-law right of sepulcher and intentional infliction of emotional distress claims arising from the disappearance of Kathleen McCormack Durst; accrual of the statute of limitations, pleading sufficiency under New York CPLR 3211, and municipal notice-of-claim prerequisites when suing a city employee.
The Supreme Court, Nassau County, granted defendants' motions to dismiss under CPLR 3211(a)(5) [rule allowing dismissal as time-barred] as untimely.
The Appellate Division held the claims were not time-barred and denied the motion to dismiss as to Robert Durst (now his estate), but affirmed dismissals of other defendants under CPLR 3211(a)(7) [rule allowing dismissal for failure to state a cause of action] and affirmed dismissal of Struk due to failure to serve a notice of claim required by General Municipal Law.
A right of sepulcher claim accrues when plaintiffs become aware of interference with remains and suffer mental anguish, not at the time of disappearance. Defendants did not show accrual beyond the limitations period. However, allegations against Charatan (individually), Douglas Durst, Wendy Durst Kreeger, and Eric A. Seiff were speculative and conclusory, and claims against Struk required a timely notice of claim because the City must indemnify him under General Municipal Law § 50-k(3) [statutory obligation of a municipality to indemnify its employees], triggering General Municipal Law §§ 50-e(1)(b) and 50-i(1) [notice-of-claim and limitations prerequisites for tort claims against a municipality or indemnified employee].
Background
Plaintiffs, relatives of Kathleen McCormack Durst, filed suit in 2015 alleging violation of the common-law right of sepulcher and intentional infliction of emotional distress stemming from her 1982 disappearance and apparent death. They later filed a third amended complaint naming Robert Durst and others, including Debrah Charatan (individually and as executor of Durst's estate), Michael S. Struk (an NYPD detective), Douglas Durst, Wendy Durst Kreeger, and Eric A. Seiff. Defendants moved to dismiss under CPLR 3211(a), arguing untimeliness and failure to state a claim. The trial court dismissed as time-barred. While the appeal was pending, Robert Durst died and Charatan, as executor, was substituted.
Lower Court Decision
The Supreme Court, Nassau County, granted each moving defendant's CPLR 3211(a) motion, holding the causes of action were untimely under CPLR 3211(a)(5) [rule allowing dismissal as time-barred].
Appellate Division Reversal
Modified and, as modified, affirmed. The court held the statute of limitations did not begin in 1982 because plaintiffs were not yet aware in a legally cognizable way of any interference or suffering presumed mental anguish; defendants failed to show accrual more than three years before suit. The court therefore denied the CPLR 3211(a)(5) motion as to Robert Durst (substituted by his executor), reviving the claims against his estate. It nevertheless affirmed dismissal as to Debrah Charatan (individually), Douglas Durst, Wendy Durst Kreeger, and Eric A. Seiff under CPLR 3211(a)(7) [failure to state a claim] because the allegations were speculative and conclusory. The court also affirmed dismissal as to Michael S. Struk under CPLR 3211(a)(7) because the City of New York must indemnify him under General Municipal Law § 50-k(3) [municipal indemnification of employees], which required plaintiffs to timely serve a notice of claim under General Municipal Law §§ 50-e(1)(b) and 50-i(1) [notice-of-claim and limitations prerequisites], even though the City was not named. The court granted, in part, a motion to strike portions of plaintiffs' reply brief as dehors the record.
Legal Significance
Clarifies that right of sepulcher claims accrue upon plaintiffs' awareness of interference with remains and accompanying mental anguish, not at the time of disappearance or initial misconduct; underscores the need for nonconclusory factual allegations to survive CPLR 3211(a)(7); and confirms that suing a municipal employee for conduct within the scope of employment triggers General Municipal Law notice-of-claim requirements due to indemnification, even if the municipality is not named. The decision also affirms the Appellate Division's authority to reach fully briefed issues not expressly decided below.
Right of sepulcher claims are not time-barred until plaintiffs learn of the interference and suffer mental anguish, but they must be pled with concrete facts. When suing a city employee for acts within the scope of employment, a timely General Municipal Law notice of claim is a condition precedent due to municipal indemnification, regardless of whether the City is named.