Appeal from an order of the Supreme Court (Ceresia, Jr., J.), entered January 18, 2000 in Rensselaer County, which, inter alia, denied defendant’s cross motion for summary judgment dismissing the complaint.
This action involves a dispute over the disposition of the cremated remains of Ronald Booth (hereinafter decedent), who died on January 7, 1996. At the time of his death, decedent was in the process of obtaining a divorce from his wife, Marsha Booth, and was residing with defendant, his girlfriend, who was designated in his will as the executor of his estate.
Ten months after decedent’s death, without advising decedent’s family of her plans, defendant scattered the ashes in the Hudson River. Thereafter, this action was commenced against defendant seeking damages for mental anguish resulting from her allegedly wrongful conduct in refusing to turn over the remains and disposing of them without notifying plaintiffs. When Corinne Booth moved to amend the complaint to add Rebecca Booth as a plaintiff, defendant cross-moved for summary judgment dismissing the complaint, asserting that she could not be held liable for disposal of the remains because she had merely complied with decedent’s explicit wishes. In support of her motion, defendant offered the affidavits of several nonparty witnesses who indicated that decedent had expressed a desire that his ashes be scattered where he hunted and
Generally, “ ‘the surviving next of kin have a right to the immediate possession of the decedent’s body for preservation and burial and * * * damages will be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent’s body’ ” (Estate of Finn v City of New York,
Here, defendant asserts that decedent wished to have his remains strewn in the Hudson River while plaintiffs argue that his remains were to be buried in one of two designated locations and, in any event, that he wanted family members to be present when his remains were laid to rest. Public Health Law § 4202 (4) does not, as a matter of law, necessarily render defendant’s conduct unlawful as it is undisputed that defendant took possession of the remains after the wake as a friend of the deceased or as executor of the estate. The parties are also not precluded under the Dead Man’s Statute from submitting the testimony of disinterested persons regarding decedent’s wishes as to how he wanted to be laid to rest after his death (see, CPLR 4519; Matter of Conroy,
The parties’ remaining contentions have been considered and are found not to have merit.
Cardona, P. J., Mercure, Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed, without costs.
Notes
. In his will, executed only five months before his death, decedent left half of his property to his two daughters and the remaining half to defendant. By stipulation of the interested parties, defendant resigned as executor after decedent’s wife commenced an elective share action.
. When the action was initially commenced, Corinne Booth was the sole plaintiff. In the order appealed from, Supreme Court granted an application to amend the complaint to add Rebecca Booth as a plaintiff. On appeal, defendant has not challenged the grant of this application.
. Because plaintiffs have the burden of demonstrating that they had a right to the remains and that the interference with that right was improper or unlawful, we disagree with Supreme Court’s analysis that defendant was required to plead the propriety of her disposition of the remains as an affirmative defense.