New York

Sending Joe the Plumber to Pick Up Grandma's Body

Even when the dead bodies Zachary Smeltz lifts for a living are hefty, he makes sure to handle even the burliest corpse in a gentle manner, masking any exertion. “Treat every case like that’s your mom that you’re transferring,” is the motto Mr. Smeltz imparts on the staff of the mortuary transport business he owns that sends him all over New Jersey and Pennsylvania and to other locales, picking up bodies.


This is how protectionist occupational licensing regimes emerge and are strengthened. Well-meaning outside observers write about something they don't really understand, in this case the "shadowy and sometimes controversial industry" of body transport companies, and then suggest that the answer to the hypothetical problems is more regulation.

"Others in the funeral industry contend the body transport business should be more strictly regulated," The New York Times reports.

“There are some states you don’t even have to be a funeral director,” said Scott M. Schmidt, the president of the New York State Association of County Coroners and Medical Examiners. “You just hang a shingle on a wall and you’re an undertaker all of a sudden.”

First of all, it is absurdly untrue to suggest that anyone can "hang a shingle" and become an undertaker anywhere in the United States. Second, yes, of course people within the industry want more regulation to restrict these activities to those within their industry. It is called economic protectionism.

"The purpose of New York’s stringent regulation, Mr. Schmidt said, is 'so you’re not sending out Joe the Plumber to pick up Grandma at the nursing home.'"

Because we all know what a problem THAT is...

Tanya Marsh

A Family's Right to Sepulcher After 34 Years

Kathleen McCormack Durst disappeared over thirty three years ago when she was completing her last year at the Albert Einstein School of Medicine in the Bronx. At the time of her disappearance, she was living with her husband, Robert Durst, a real estate tycoon estimated to be worth nearly $100 million. Her husband didn't report her missing for four days, telling investigators he had last seen her at the train station. Police were suspicious of Robert but he was never charged in her disappearance. Kathleen Durst was declared dead in 2001.

In January, HBO aired a six-episode documentary about Robert's strange life. Since the disappearance of Kathleen, unsolved disappearances and murders have followed him. In California, in December 2000, he was questioned but never charged in the execution style murder of his friend, Susan Berman. Then in Texas in 2001, he was charged with killing his neighbor, dismembering the body, and dumping it in the bay. He led authorities on a nationwide manhunt ending in Pennsylvania. When he was brought back to Texas, he admitted to dismembering his neighbor's body. He claimed self defense and two years later was acquitted of homicide charges. He pled guilty to lesser charges, was put on probation, which he then violated and was sent to jail for a couple months. At the end of the documentary, Robert is heard whispering "What the hell did I do? Killed them all, of course!"

Since agreeing to participate in the documentary, Robert has faced a slew of charges. He agreed to provide 25 hours of interviews, credit card records and court papers. His lawyer had warned him not to participate in the documentary, but Durst was undeterred. He said in an interview “[i]t’s so long ago. Some D.A. would have to commence a major budget-busting investigation. I don’t see that happening.” Unfortunately for Durst, the documentary spurred the reopening of investigations. He's currently in jail in New Orleans on a gun charge. Then, one day before the airing of the final episode of the documentary, Robert Durst was arrested for the murder of Susan Berman. After he's sentenced in New Orleans, he'll be sent to California to face the murder charge. 

Nearly thirty-four years later and Kathleen's family has held off on filing a lawsuit against Durst, but after seeing the documentary they decided it was time. Kathleen's brother petitioned to be named administrator of the estate in order to file a wrongful death suit on the families behalf. The documentary made this suit legally possible because New York has a two year statute of limitations on wrongful death suits unless there is new evidence. 

Recently, Kathleen's mother and sisters filed a $1oo million lawsuit against Robert Durst. They have long suspected that Robert killed Kathleen but remained hopeful that she would someday return. The lawsuit contends that he violated the McCormack family's right to sepulcher. The right to sepulcher is a NY law which grants family members the immediate right to possession of a body for burial.  If the right is interfered with, the next of kin may be entitled to bring a claim for the emotional harm that has been suffered. The family's lawyer said that "their priority has been and continues to be to provide Kathleen with a proper and dignified burial."

Emily Morris

When Someone Dies "Destitute and Forsaken" in New York City

From The Lonely Death of George Bell, The New York Times (October 17, 2015)

When someone dies destitute and forsaken, and one of various free burial organizations does not learn of the case, the body ends up joining others in communal oblivion at the potter’s field on Hart Island in the Bronx, the graveyard of last resort.

If there are funds, the public administrator honors the wishes of the will or of relatives. When no one speaks for the deceased, the office is partial to two fairly dismal, cut-rate cemeteries in New Jersey. It prefers the total expense to come in under $5,000, not always easy in a city where funeral and burial costs can be multiples of that.


City law specifies that bodies be buried, cremated or sent from the city within four days of discovery, unless an exemption is granted. The medical examiner can release even an unverified body for burial. Absent a corpse’s being confirmed, however, the policy of the medical examiner is not to allow cremation. What if there has been a mistake? You can’t un-cremate someone.

So days scrolled past. Other corpses streamed through the morgue, pausing on their way to the grave, while the body presumed to be George Bell entered its second month of chilled residence. Then its third.

Tanya Marsh


Disinterring a Founding Family of NYC

More people are buried in Queens than are living there now. This is a story of some of the departed.

Precisely how many will not be known, though, until a bulldozer breaks ground early next year for a 42-story apartment tower in Long Island City, on the site of what was once a cemetery, owned by a family that settled there 350 years ago.

The Van Alst family cemetery was rediscovered only a little more than a decade ago, after the city decided to rezone the mostly industrial tract for residential, retail and office development.

After two developers, H & R Real Estate Investment Trust and Tishman Speyer, announced in June that they would build on the site, they were required by the Landmarks Preservation Commission, which issues guidelines for archaeological work, to make a good-faith effort to find any descendants of the last known member of the family, Harry Van Alst, who lived in Queens in 1925.

Read the rest of the article at the New York Times.

Tanya Marsh

The Bone Snatcher

Dr. Mastromarino was licensed by New York to supply tissue banks after his dental license was suspended because of a drug addiction. However, the doctor was soon named the “bone snatcher” for his illegal practice. He started working with dozens of funeral directors, paying them one thousand dollars for access per corpse. After selling the body parts, Dr. Mastromarino made between ten thousand and fifteen thousand per body.

Dr. Mastromarino started stealing organs and tissue from corpses to sell for tissue replacement. He stole bones, skin, ligaments, heart valves and other tissue even though some corpses were diseased with things like cancer and aids, and without consent from the survivors. These body parts were sold to medical companies to be used in dental implants, knee replacements and other procedures. He then “forged paperwork, including consent forms and death certificates, to make the cause of death and age acceptable.” The police became suspicious when a famous journalist, who had cancer, had her arms and legs removed.

Under New York law, harvesting organs is legal if 1) the donor does not have a potentially communicable disease, 2) the survivors approve and 3) the person is not too old. Therefore, because the journalist had cancer, her body parts could not be taken. Because her body would be viewed by friends and loved ones, the doctor replaced the bones with PVC pipe, which he did to other corpses. Patients who have received care from businesses associated with Dr. Mastromarino are now worried that the parts they have received may be from those who had a disease.

Dr. Mastromarino became known as the bone snatcher. He was charged along with other funeral directors from several different funeral homes. He pleaded guilty to enterprise corruption, reckless endangerment and body stealing. Ironically, the bone snatcher died of bone cancer last summer.

For more information see:

 Tiffany Lail

New York Supreme Court Gets It Wrong in Jackson v. Jackson

File:Map of New York highlighting Albany County.svg

In Jackson v. Jackson (979 N.Y.S.2d 477), a 2013 case in front of Judge W. Dennis Duggan of the New York Supreme Court in Albany County, a mother and father asked the court to determine custody of their child.  The problem was, the child had passed away as a fetus and was cremated while the parents were still married.  The parents divorced prior to disposing of the child’s ashes, and the mother filed a petition with the New York courts to establish her ownership over the ashes.

The court undertakes its analysis by addressing the definition of a fetus, the responsibility of impregnation and its resultant commingling of property, and whether the remains are “marital” or “separate” property.  Eventually the court rules that the mother should have sole possession of the remains.  However, the court’s analysis rests on a faulty premise: that the ashes of the fetus are property at all.  The court breezes past this concept, simply stating that “[t]he ashes are clearly property by any plain meaning of the word,” without citing any authority whatsoever. As a result, the court states, that property must be “owned” by someone—the mother, the father, or both of them.  Compounding the error, the court inexplicably states that a fetus certainly would not be considered property, but “fetal remains, once expelled  . . . from the mother’s body, would be.”

First and foremost, is has been established New York law for almost a century that no property rights exist in human remains. Buchanan v. Buchanan, 59 N.Y.S. 810, 811 (1899). As a result, the analysis that the court undertakes to determine the type of property that the ashes represented was wholly inappropriate.  Rather than property, New York courts simply recognize the ownership of remains as a “legal right” that arises out of the duty of the next-of-kin to bury the body. Id.

Additionally, New York courts  have refused to create a distinction in the rights associated with a stillborn child and one that had been born healthy, Correa v. Maimonides Medical Center, 629 N.Y.S.2d 673, 676 (1995), rendering moot Judge Duggan’s distinction between the existence of property rights in the stillborn child before and after birth.  Statutorily, New York considers a fetal death a “birth and a death.”  As such, the responsibility under the law for the remains should be determined exactly as any other type of human remains.

So the question remains: What analysis should the court have undertaken? New York law provides a very specific hierarchy for who has responsibility for the disposition of human remains. The law gives the “right to control the disposition of the remains” to either of the parents of the child. However, there is also a caveat—if one of the individuals designated to serve (in Jackson’s case, either of the parents), then the person of the next succeeding priority has the right to control the disposition of the remains.  This provision provided an “out” for Judge Duggan, and would have preempted his complicated marital property analysis.  The father of the cremated fetus had previously threatened to flush the ashes down the toilet, and had, on a separate occasion, taken the ashes from the custody of the mother without her permission. The court could have used the father’s brash actions to determine under the statute that the father was not competent of the disposition of the cremated remains, and limited possession of the ashes to the mother.  However, the courts premature and incorrect leap declaring the cremated remains as “property” not only created dangerous precedent for future cases regarding the disposition of remains of a child when the parents have since divorced, but also forced to court to undertake a complicated and faulty analysis of the legal character of the ashes.

Lee Denton

What Happens to Unclaimed or Abandoned Remains?

Many states have statutes that address the disposition of unclaimed or unidentified persons who have died. Generally, these statutes can be found under the state’s “health and safety” category, and they provide guidance on how the remains should be handled. States have different requirements on how the bodies should be handled, but in many circumstances, a coroner or medical examiner is used to determine the cause of death so that the death certificate can be filled out; these results are then posted in in the National Unclaimed Persons Data System. Some states will have the remains buried or cremated, while others will allow the body to be donated for medical research.

New York City has one of the nation’s largest homeless populations; the most recent data, recorded in March of 2013, reports that there were 48,471 homeless individuals within the city. With such a large homeless population, the obvious question is, what does the city do with the remains of the deceased homeless?

Since 1869, New York City has been burying their unclaimed homeless persons on a deserted island called Hart Island. Hart Island is uninhabited and is roughly 131 acres in size; it is the largest tax supported graveyard in the world. Tax supported graveyards that are used to bury unknown individuals are known as potter’s fields. Currently, over 101 of the 131 acres have been used for burials—an estimated 1,000,000 people have been buried there. The city uses prison labor from Rikers Island to inter the remains. Children are buried in trenches that can number as much as 1000 each, while adults are buried in trenches of up to 50 each.

Hart island

Contrary to New York, Alabama does not have a large homeless population that results in many unclaimed deaths; as a result, the state does not have a statute that enables a jurisdiction to take possession over an unclaimed body. Currently, the law grants the deceased’s next of kin property rights to their relative’s remains, and does not provide for a default if the remains are unclaimed. Authorities in Etowah County, Alabama, have seen an increase in the amount of unclaimed bodies, especially those who die in hospitals. Reports suggest that many families are intentionally neglecting to claim their deceased relatives remains for fear of having to pay the cost to bury them. Because the state does not have a law that authorizes the county to take possession of human remains, the only remedy a hospital or other entity can seek is to petition the county probate judge for funding and permission to dispose of the remains.

Alabama is not the only state whose laws do not provide a remedy for this problem, but given recent economic woes, it is likely that this will be an increasing issue if states do not adopt measure to deal with unclaimed remains. 

Clay Armentrout

“You Can’t Always Get What You Want”—Family Fights Mick Jagger on State of L’Wren Scott’s Burial


On March 17th, the fashion world was shocked to hear that designer L’Wren Scott, longtime girlfriend of Mick Jagger, took her life in her New York City apartment. This past Tuesday, March 25th, Jagger laid Scott to rest in the Hollywood Forever Cemetery. Those in attendance included 60 close family members and friends of Jagger and Scott, with the exception of Scott’s adopted sister, Jan Shane. Prior to the funeral, Shane publically denounced Jagger’s plans to bury Scott in Los Angeles, and claimed that she was banned from from coordinating the funeral arrangements both by her adopted brother Randall Bambrough and Jagger. Instead, Shane wished to have her sister buried next to her parents in the family’s hometown of Ogden, Utah.

Family disputes over burial arraignments for a loved one arise fairly often, but the specifics of this case make it unique. In most instances of sudden death, a surviving spouse or a family member is provided the legal right to determine the burial arraignments. In this case, however, the decision seems to have been made by Mick Jagger, who retains status as a rock legend but lacks legal status as a “boyfriend.”  

To determine who has the legal right to control the location of Scott’s burial, one must assume that the applicable law is the law of the state in which death occurred—New York. Under New York law, individuals have the ability to elect in writing the individual who will control their remains after death. In the absence of this document, as is the case with Scott’s death, New York Public Health code § 4201 establishes a priority list of individuals who can make the decision. In descending order, § 4201 provides that the right to control disposition of a deceased individuals vests with the following: the decedent’s surviving spouse; the decedent’s surviving domestic partner; or any of the decedent’s surviving siblings eighteen years of age or older. Because Jagger does not qualify as a surviving spouse or Scott’s domestic partner, the law clearly defaults the right to control the disposition of Scott’s remains with her siblings, Jane Shane and Randall Bambrough. If there remains a dispute as to the disposition of the remains of the decedent, as there is in this case between Shane and Bambrough, § 4201(8) provides that the dispute “shall be resolved by a court of competent jurisdiction.” Therefore, unlike other states, which have enacted legislation that further prioritizes rights among a decedent’s siblings (i.e. Ohio), New York has opted to let courts handle the dispute. In New York, however, such a case of sibling rivalry has not arisen, making this potential case one of first impression. Therefore, for the time being, it appears that Scott’s remains will remain in California, unless Shane chooses to bring legal action against her brother and Jagger in an effort to return Scott back to Utah.  

William Nicolas Harper

Official Recognition Sought for Sacred Slave Burial Ground at Drake Park in NYC

Students and teachers at P.S. 48, also known as Joseph R. Drake Elementary School, came across a startling surprise as they began investigating a single black and white photo of overgrown landscape from 1910. The mysterious photo labeled "Slave burying ground - Hunts Point Road," led the group to discover that "Hunts Point Road" once ran along what is now known as the Joseph R. Drake Park in Bronx, New York. As a once well-known signpost within the area in the 18th Century, "Old Hunts Point Road" became the burial ground of various colonial wars and continental soldiers, including members within the prominent families of Hunt, Leggett, and Willett of West Farm, Westchester County, N.Y. Specifically, in the late 1700s, Thomas Hunt (for whom the current neighborhood is named after) acquired the land and built his home on the property. Historical records seem to indicate that the slaves of early residents, such as Hunt were interred in a small enclosure directly opposite the Hunt burial site. This evidence seems to make sense given the fact that most enslaved Africans were not allowed to me buried in the consecrated ground containing the remains of the families that owned them. 

Photo Credit: Lisa W. Foderaro for the New York Times (January 25, 2014)

It is argued that in order to make room for Drake Park, the City eventually demolished the small enclosure, which interred the sacred remains of the slaves. However, there appears to be tombstone remnants on the property marking the remains of early settlers such as the Leggett and Hunt family members. It is speculated that the property even includes the remains of the celebrated author and poet, Joseph R. Drake. Through the Hunts Point Slave Burial Ground Project ("HPSBGP"), the students of P.S. 48 have attempted to commemorate the lives of the slaves by advocating for preservation and official recognition of the site within the City. This issue becomes whether the site will be able to obtain such official recognition. As stated by State Senator Jeffrey D. Klein, it is clear that "[t]he lives of the men, women and children who rest in peace here are part of the history of not only the Hunts Point community, but of New York at large.” Undisputably, evidence from ground penetrating radar analysis supports the conclusion that the site contains human remains within the "small enclosure"  by establishing that "anthropogenic features, suggestive of skeletal remains [lies] six-feet beneath the parkland."


Photo Credit: Hunts Point Slave Burying Ground Commemoration Project (2013).


Photo Credit: Hunts Point Slave Burying Ground Commemoration Project (September 23, 2013)

In response to the campaign led by HPSBGP, the NY State Office of Parks, Recreation, and Historic Preservation revealed in a letter that Drake Park's location permits limited visitorship. Additionally, the letter explained that a precise location of the cemetery could not be ascertained and the office did not have any evidence that when the park was acquired in 1909 remnants of a burial ground survived. It is clear from the evidence revealed through HPSBGP that skeletal remains lie within the ground of the Park. However, the office further stated that the property would be placed on a "watch list of sites of archaeological sensitivity" and the information provided by P.S. 48 would be carefully reviewed. It appears that the Parks and Recreation Office is willing to work cooperatively with the P.S. 48 group in order to honor and promote the history of the site. While forgotten for so many years, it finally appears as though the remnants of the slave individuals within the site may finally receive this long-deserved official recognition from the State of New York. 

Ashley White