In Stanley v. City of New York et al, No. 151098/2020, 2020 N.Y. Slip Op. 20353, 2020 WL 7776484 (NY Sup. Ct. NY Cty. Dec. 23, 2020), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s claims arising from the City’s alleged failure to comply with decedent’s desire for plaintiff to control the disposition of their remains.
Specifically, the decedent (Shawn Kamari Frederick, Sr.) was a transgender Muslim man who “wished, upon his death, to avoid any bodily alterations such as autopsy or preservation, as well as misgendering or reference to Frederick’s ‘deadname.'” Not wanting his family – who rejected and denied his transgender and Muslim identities – to have access to or control over his body after his death, the decedent designated (via a Department of Health DOH-5211 form titled “Appointment of Agent to Control Disposition of Remains” form) his partner (the plaintiff in this case) to control the disposition of the decedent’s body, setting forth the directive that the decedent wished to be cremated.
Frederick died, after which plaintiff learned that the Office of the Chief Medical Examiner released his body to his biological family and a Brooklyn funeral home, that the family had scheduled a Christian funeral service with a public viewing, and that the invitation referred to Frederick by his “dead name” and with incorrect pronouns. Plaintiff ultimately obtained control over Frederick’s remains, and Frederick was eventually cremated.
Plaintiff sued, “alleging in sum and substance that despite taking every necessary procedural step to effectuate their wishes, Frederick’s wish to entrust his remains to his chosen family, rather than to his biological family, was not respected as it would have been had Frederick been cisgender.” Plaintiff asserted the following claims: (1) violation of Plaintiff’s right to sepulcher; (2) negligent and intentional infliction of emotional distress; (3) violation of the New York City Human Rights Law; (4) violation of Plaintiff’s federal constitutional due process rights; (5) violation of Plaintiff’s federal constitutional equal protection rights.
The court granted defendants’ motion to dismiss, but with respect to plaintiff’s intentional and negligent infliction of emotional distress claims.
Here I’ll discuss the court’s evaluation of plaintiff’s claims under the New York City Human Rights Law.
Initially, the court rejected the argument that plaintiff’s NYCHRL claim should be dismissed because no notice of claim was filed, noting that ” none is required for a Human Rights Law claim.”
Turning to the merits, the court summarized the contours of the pertinent statute:
The City also argues that the Complaint fails to state a legally-cognizable claim because it does not adequately allege anti-transgender or anti-Muslim bias, and that the true cause of the delay was the “statutorily-required hold pending resolution of a dispute between plaintiff and Mr. Frederick’s biological family.” Plaintiff counters that she has pled discrimination because, in addition to gender, gender identity, sexual orientation, and religion, the NYCHRL prohibits discrimination against “partnership status.”
N.Y.C. Administrative Code § 8-107(4) prohibits places of public accommodation, including government agencies, to discriminate on the basis of, as relevant here, actual or perceived race, creed, color, national origin, age, gender, marital status, partnership status, and/or sexual orientation (see Boureima v NY City Human Resources Admin., 128 AD3d 532, 533 [1st Dept 2015] [defining Human Rights Administration as provider of public accommodation] ). The term “gender,” for purposes of the NYCHRL, includes “actual or perceived sex, gender identity and gender expression, including a person’s actual or perceived gender-related self-image, appearance, behavior, expression or other gender-related characteristic, regardless of the sex assigned to that person at birth” (NYC Administrative Code § 8-102; Bumpus v NY City Tr. Auth., 18 Misc 3d 1131[A], 2008 NY Slip Op 50254[U], *4 [Sup Ct, Kings County 2008]; aff’d other grounds 66 AD3d 26 [2d Dept 2009]).
N.Y.C. Admin. Code § 8-130(a) provides that the NYCHRL “shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York state civil and human rights laws, including those laws with provisions worded comparably to provisions of this title, have been so construed.” The same section recognizes cases which have “correctly understood and analyzed the liberal construction requirement,” including Albunio v City of NY, (16 NY3d 472, 477-478 ), and its progeny, which recognize that the NYCHRL, since the Local Civil Rights Restoration Act of 2005, must be “construe[d] broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible” (citing Local Law No. 85  of City of NY § 1). “The City’s Human Rights Law goes the additional step of prohibiting policies or practices which, though neutral on their face and neutral in intent, have an unjustified disparate impact upon one or more of the covered groups” (Levin v Yeshiva Univ., 96 NY2d 484, 489 ).
Indeed, even before the Restoration Act, this Court (Klein Heitler, J.) interpreted the NYCHRL broadly to encompass not only the direct objects of discrimination, but also to grant standing to “those who have been discriminated against by virtue of their association” with an individual of a protected class (Bartman v Shenker, 5 Misc 3d 856, 860-861 [Sup Ct, NY County 2004], citing Administrative Code § 8-107  [“The provisions of this section set forth as unlawful discriminatory practices shall be construed to prohibit such discrimination against a person because of the actual or perceived race, creed, color, national origin, disability, age, sexual orientation or alienage or citizenship status of a person with whom such person has a known relationship or association.”] )4. Similarly, in 2018, the New York City Council added additional language to N.Y.C. Admin. Code § 8-102 extending the scope of standing yet further to a “person aggrieved” whose agent, acting on the principal’s behalf, is discriminated against (see N.Y.C. Local Law No. 63 Int. No. 1012-A ).
Applying the law, the court concluded:
Here, Plaintiff pleads: (1) that Plaintiff is the unmarried partner of a transgender Muslim man; and (2) that “Defendants treat the claims of [biological family members] and people who ‘only’ are appointed by the Public Health Law differently,” giving priority to one’s biological family and thereby artificially creating a dispute when an individual with a 5211 makes a claim (Pl Opp p 13-15). Plaintiff has alleged that she has the right, under the NYCHRL, to assert on her own behalf and for Decedent, that Defendants’ procedure and practice was either designed, or had the effect of, manufacturing a dispute regarding Decedent’s remains and delaying the effectuation of Decedent’s wishes despite the existence of the 5211. Plaintiff has also alleged that this is disparate treatment which would not have been endured by a cisgender individual and/or couple.
Based on this, the court held that the pleadings were sufficient to withstand the City’s motion to dismiss as to the NYC Human Rights Law claim.