What do Leonard Bernstein, Boss Tweed, Charles Ebbets, Jean-Michel Basquiat, Louis Comfort Tiffany, and Horace Greeley, all have in common? They are all buried in Green-Wood Cemetery, founded in 1838.  By 1860, Green-Wood was attracting 500,000 visitors a year, and was the inspiration for New York's Central Park. Joseph Mack died in 2008 and his body went to the famous cemetery and was cremated at Green-Wood Crematory. His purported wife, Regina Mack, directed the cremation and told the cemetery folks she was the executrix of his estate. A month later Shirley Major Mack stepped forward and said she was the real wife of dear Joseph; that Regina was nothing but a sham wife and if they were on the Jerry Springer show, Shirley would have smacked down Regina on national T.V.; and, that Shirley is entitled to damages under the common-law right of sepulcher. "The 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 (see Shipley v City of New York, 80 AD3d 171; Melfi v Mount Sinai Hosp., 64 AD3d 26, 31). If a violation of the right of sepulcher is established, the next of kin may be compensated for the emotional suffering and mental anguish which they experienced as a result (see Shipley v City of New York, 80 AD3d 171)."

The Appellate Division, Second Department in an opinion by Judge Dillon dated March 8, 2011 in Mack v. Brown 2011 NY Slip Op 01809, put the whole mess to eternal rest. The Court indicated Public Health Law § 4201 provides statutory immunity from civil liability provided the person acted reasonably and in good faith. Green-Wood's crematory manager, in an affidavit, indicated the crematorium was presented with an authorization from the decedent's family member and permission from the New York City Board of Health. In a Solomon-like pronouncement the Court stated, "Where, as here, two competing putative spouses come forward with proof of their respective marriages, there is a presumption that the second marriage is valid and that the prior marriage was dissolved by death, divorce, or annulment...When the presumption is successfully rebutted, the second marriage is void ab initio (see Domestic Relations Law 6), and is not ratified or validated by a subsequent dissolution of the first marriage .... Accordingly, if, as the plaintiffs allege, the documented marriage of the decedent to Mack were still valid and ongoing at the time of the decedent's later marriage to Brown, then Brown was not a surviving spouse authorized to control the disposition of the decedent's remains as contemplated by Public Health Law § 4201(2)(a)(ii). " So no damages awarded to Shirley Major Mack and the complaint dismissed. As for Joe, who started the whole mess, I bet he is glad to be in Green-Wood Cemetery and not within striking distance of Shirley or Regina.

Read full decision here. 

What to do when your plaintiff dies and no one wants to continue the case? Your adversary does not want to do the administration proceeding in Surrogate's Court. The case was probably not that strong before the plaintiff died, and now that the plaintiff is gone, the case is worse. What can the defendant do to remove the automatic stay?

Under CPLR section 1015, "If a party dies and the claim for or against him is not thereby extinguished the Court shall order substitution of the proper parties."  We normally move for the appointment of the Public Administrator in the Supreme Court if the plaintiff's attorney does not substitute an administrator or executor. Some Judges deny that application and refer the parties to the Surrogate's Court for the administration proceedings. We would then need to file a petition in surrogate's court for the appointment of a public administrator. That proceeding is time consuming and requires a certified death certificate to commence, a family tree of the decedent , and someone with knowledge who can file the petition. This is extremely difficult without cooperation from the plaintiff.'s counsel On motions which we have made Judges have ruled the death of the plaintiff divests the Court of jurisdiction until an administrator is appointed.

Courts have consistently held on appeal that the Supreme Court does have the power to appoint a temporary administrator for the case to continue.

In Harding v. Noble Taxi Corp, 155 AD2d 265, 547 N.Y.S.2d 29 (1st Dept. 1989), the Appellate Division, First Department stated,

"...we note that there is no merit to objections by defendants with respect to plaintiff seeking the appointment of a temporary administrator...in Supreme Court, as opposed to Surrogate's Court. In so moving for the appointment of a guardian as temporary administrator, and for substitution, the plaintiff was following the procedures outlined in CPLR 1015(a) and 1021. These statutory provisions do not require the plaintiff to proceed in Surrogate's Court, and indeed, the attendant delays incidental thereto would militate against that procedure. The Supreme Court is a court of general jurisdiction with the power to appoint a guardian to serve as temporary administrator, and that court also has broad discretion to act in matters involving substitution (see, Aptacy v. Giorgi, Inc., 124 Misc 2d 175, 475 N.Y.S.2d 985)...Indeed, in order to avoid delay and prejudice in this action which has been pending for some time...there is no special need to proceed in Surrogate's Court and the Supreme Court should have granted the request for the appointment of a guardian as temporary administrator, and for substitution, thereby permitt.0ing the case to proceed expeditiously."

While not statutorily required, defense counsel may take any affirmative steps to effectuate substitution on behalf of a deceased plaintiff. (See CPLR 1021.) Alternatively, CPLR 1021 grants the defendant the option of moving to dismiss for failure to make a timely substitution. (See e.g.  Washington v Min Chung Hwan, 20 AD3d 303, 799 NYS2d 31 [1st Dept 2005]; Palmer v Selpan Elec. Co., 5 AD3d 248, 773 NYS2d 289 [1st Dept 2004].)

However, before the action is subject to dismissal, the deceased plaintiff's family must be afforded a reasonable time to effectuate the required substitution. (See Blank v Schafrann, 206 AD2d 771, 615 NYS2d 107 [3d Dept 1994].) For example, in Gonzalez v Ford Motor Co. (295 AD2d 474, 744 NYS2d 468 [2002]), the decedent's father, as administrator of decedent's estate, brought an action to recover damages for personal injuries and wrongful death. The father subsequently died, and defendants moved to dismiss the  complaint for failure to appoint a substitute administrator within a reasonable time. The trial court dismissed the complaint and denied the motion of decedent's sister, who eventually had been substituted as administrator of the estate, to vacate its prior order as a nullity. The Appellate Division, however, vacated the dismissal, holding that because no persons interested in decedent's estate had been provided with notice of the motions to dismiss, the Supreme Court lacked jurisdiction to act. (See also Blank v Schafrann, 206 AD2d 771, 615 NYS2d 107 [1994].)