Accrual of Right of Sepulcher Requires Actual Awareness and Resulting Mental Anguish; Suspicion Alone Is Insufficient, and Notice-of-Claim Is Required When Municipal Indemnification Applies — Bamonte v. Charatan

Introduction

In Bamonte v. Charatan, 2025 NY Slip Op 06152 (App Div, 2d Dept Nov. 12, 2025), the Appellate Division, Second Department, addressed the timeliness and sufficiency of claims asserting violation of New York’s common-law right of sepulcher and intentional infliction of emotional distress (IIED). The suit arises out of the disappearance and apparent death of Kathleen McCormack Durst in 1982. The plaintiffs—relatives of Kathleen—sued Robert Durst and several other individuals, including Debrah Charatan (both individually and as executor of Robert Durst’s estate), Michael S. Struk, Douglas Durst, Wendy Durst Kreeger, and Eric A. Seiff.

The Supreme Court, Nassau County, dismissed the third amended complaint as untimely under CPLR 3211(a)(5). On appeal—after Robert Durst died and Debrah Charatan was substituted as executor of his estate—the Second Department modified the dismissal. The court restored the claims against Robert Durst (now the estate) as timely and sufficiently pleaded, but affirmed dismissal as to the other individual defendants for failure to state a claim and as to Struk for failure to satisfy the notice-of-claim condition precedent given the City’s indemnification obligations.

The panel (Iannacci, J.P., Miller, Voutsinas, and Golia, JJ.) also granted, in part, a motion to strike portions of the plaintiffs’ reply brief for referring to matters outside the appellate record.

Summary of the Opinion

• Statute of limitations: The court rejected the trial court’s view that the claims accrued in 1982 at the time of Kathleen’s disappearance. For the right of sepulcher, accrual occurs when plaintiffs become aware of the interference with the remains and suffer the mental anguish that is presumed to follow, not at the time of the underlying act. Mere suspicion is not enough to trigger accrual. The movants failed to establish, prima facie, that plaintiffs had the requisite awareness more than three years before suit was filed in 2015.
• Robert Durst (estate): The Appellate Division deleted the provision granting Robert Durst’s CPLR 3211 motion and denied dismissal. The claims against the estate proceed.
• Other individual defendants (Charatan, individually; Douglas Durst; Wendy Durst Kreeger; and Eric A. Seiff): Although not time-barred on the record presented, the complaint’s allegations against these defendants were deemed speculative and conclusory. Dismissal under CPLR 3211(a)(7) for failure to state a claim was affirmed.
• City employee (Struk): Dismissal was also affirmed under CPLR 3211(a)(7) because the City of New York is obligated to indemnify Struk (a City employee) under General Municipal Law § 50-k(3). Therefore, even though the City was not named as a defendant, the plaintiffs were required to serve a timely notice of claim on the City as a condition precedent (GML §§ 50-e[1][b], 50-i[1]), which they failed to do.
• Appellate practice: On a motion by Charatan as executor, the court struck discrete portions of the plaintiffs’ reply brief as “dehors the record” (outside the appellate record) and declined to consider them; the motion was otherwise denied.
• Costs: The court awarded one bill of costs to the plaintiffs payable by the executor of Robert Durst’s estate, and a separate bill of costs to the prevailing respondents (Charatan, Struk, Douglas Durst, Kreeger, and Seiff) payable by the plaintiffs.

Detailed Analysis

Precedents Cited and Their Role

The court’s analysis draws on a cluster of authorities that together define the timeliness and pleading rules relevant here:

• Statute of limitations framework and burden shifting (CPLR 3211[a][5]):
  • Barbetta v Facchini, 236 AD3d 623, 625; Lambro Indus., Inc. v Gilbert, 233 AD3d 765, 766; Kaul v Brooklyn Friends Sch., 220 AD3d 939, 940–941; Cruz v Guaba, 226 AD3d 964, 965; Webster v Sherman, 165 AD3d 738, 741 — These decisions reiterate that on a motion to dismiss as time-barred, the defendant bears the initial burden to establish, prima facie, that the time to sue has expired. Only then does the burden shift to the plaintiff to raise a tolling or inapplicability argument. The Second Department relied on this principle to conclude the movants had not met their prima facie burden because they could not show when plaintiffs became aware in a legally cognizable way of any interference with remains and concomitant mental anguish.
• Accrual of the right of sepulcher:
  • Turner v Owens Funeral Home, Inc., 189 AD3d 911, 912–913 — The court quoted Turner for the elements of a right-of-sepulcher claim, which include next-of-kin status, a right to possession of remains, unauthorized interference, awareness of the interference, and resulting mental anguish.
  • Dixon v City of New York, 76 AD3d 1043, 1044; Melfi v Mount Sinai Hosp., 64 AD3d 26, 39–40; Rugova v City of New York, 132 AD3d 220, 230 — These cases, from the Second and First Departments, establish that such claims accrue upon the plaintiff’s awareness of the interference and the experience of mental anguish, not at the moment of the underlying act. Bamonte closely follows this line, emphasizing that suspicion alone does not constitute awareness “in a legally cognizable manner,” and that mental anguish is presumed once awareness exists.
• Pleading sufficiency (CPLR 3211[a][7]):
  • Pinkesz v Massachusetts Mut. Life Ins. Co., 234 AD3d 886, 888; Bailey v City of New York, 228 AD3d 713, 714 — These authorities support dismissal where allegations are speculative and conclusory. The court invoked them in affirming dismissal as to Charatan (individually), Douglas Durst, Kreeger, and Seiff.
• Notice-of-claim requirement for suits against municipal employees:
  • General Municipal Law §§ 50-k(3), 50-e(1)(b), 50-i(1); Wagman v Hooper, 138 AD3d 826, 827 — The court applied these to hold that, because the City must indemnify Struk, plaintiffs were required to serve a timely notice of claim even though the City was not named. Failure to satisfy this condition precedent justified dismissal.
• Appellate power to reach unaddressed arguments:
  • Rodriguez v New York City Hous. Auth., 169 AD3d 947, 949 — The Second Department noted it could address the notice-of-claim issue because it was fully argued on appeal, even though the Supreme Court had not reached it.

Legal Reasoning

The opinion proceeds in three principal steps: limitations, pleading, and municipal notice.

1. Limitations and accrual. Applying established accrual rules for the right of sepulcher, the court rejected the notion that the clock started in 1982 upon Kathleen’s disappearance. The opinion underscores two key points:
   • Awareness requirement: Plaintiffs must be aware of the interference with remains “in a legally cognizable manner.” Mere suspicion does not suffice. This is especially salient in disappearance cases where, for years, next of kin may lack verifiable knowledge of what happened.
   • Mental anguish component: Accrual is tied to the experience of mental anguish, which New York courts presume once awareness of interference is established.
   Because the movants did not establish, prima facie, that plaintiffs had such awareness and resulting mental anguish more than three years before the 2015 commencement of the action, dismissal on statute-of-limitations grounds under CPLR 3211(a)(5) was improper.
2. Sufficiency of allegations by defendant. Having found the claims not time-barred on the record presented, the court turned to CPLR 3211(a)(7).
   • Robert Durst (estate): The court denied dismissal, implicitly finding the complaint’s factual allegations against him sufficiently nonconclusory to state claims sounding in right of sepulcher (and related IIED) at the pleading stage.
   • Charatan (individually), Douglas Durst, Kreeger, and Seiff: As to these defendants, the court held the allegations were “speculative and conclusory.” Without concrete factual assertions connecting each to an unauthorized interference with remains or extreme and outrageous conduct, dismissal under CPLR 3211(a)(7) was warranted.
3. Notice-of-claim against a City employee. The court affirmed dismissal as to Struk because:
   • The City of New York is obligated to indemnify Struk under GML § 50-k(3).
   • Even though the City was not named as a defendant, plaintiffs were required to serve a timely notice of claim on the City as a condition precedent to suit against the employee (GML §§ 50-e[1][b], 50-i[1]; Wagman).
   • Failure to satisfy that condition precedent is fatal at the pleading stage and supports dismissal under CPLR 3211(a)(7).
   The court also exercised its authority to reach this issue on appeal, noting that it had been fully briefed (Rodriguez).

Impact and Practical Implications

Bamonte has several important consequences for New York practice, particularly in cases involving long-ago disappearances and alleged post-mortem interference.

• Accrual in disappearance cases: The decision confirms, within the Second Department, that right-of-sepulcher claims in disappearance scenarios do not accrue until next of kin acquire legally cognizable awareness of interference and experience the resulting mental anguish. Suspicion—even longstanding—is insufficient. This lowers the risk of premature time-bar rulings where families lacked reliable information for years or decades.
• Pleading rigor against peripheral actors: The court’s affirmance of CPLR 3211(a)(7) dismissals against multiple individual defendants underscores the need for specific, nonconclusory factual allegations connecting each named defendant to an unauthorized interference. Naming numerous individuals without concrete factual linkages is vulnerable to early dismissal.
• Municipal notice-of-claim traps: Plaintiffs suing city employees for tort damages must evaluate indemnification exposure under GML § 50-k(3). If the municipality is obligated to indemnify, a timely notice of claim is required even when the municipality is not sued. Failure to serve the notice of claim can doom the claims at the pleading stage.
• Appellate practice hygiene: The partial grant of the motion to strike “dehors the record” material is a reminder that appellate courts will disregard matter not contained in the record on appeal. Practitioners must ensure briefs hew strictly to the record as settled below.
• Costs signaling: The dual costs award—plaintiffs recover costs from the Durst estate while owing costs to the other prevailing respondents—reflects the mixed outcome and serves as a practical reminder that piecemeal success and failure on appeal can carry financial consequences.

Complex Concepts Simplified

• Right of sepulcher: A common-law claim protecting the next of kin’s right to the immediate possession of a decedent’s remains for preservation and proper burial. To plead it, a plaintiff must allege: (1) next-of-kin status; (2) a right to possession of the remains; (3) defendant’s interference with that right; (4) lack of authorization; (5) plaintiff’s awareness of the interference; and (6) mental anguish caused by the interference.
• Accrual vs. the act: In tort law, “accrual” is when the clock for the statute of limitations starts. For right-of-sepulcher claims, accrual occurs upon awareness of the interference and the resulting mental anguish—not when the interference itself allegedly happened. Suspicion is not “awareness” in this context.
• CPLR 3211(a)(5) vs. 3211(a)(7):
  • 3211(a)(5): A motion to dismiss as time-barred. The defendant must first show, prima facie, that the limitations period has expired. If met, the burden shifts to the plaintiff to show tolling or inapplicability.
  • 3211(a)(7): A motion to dismiss for failure to state a cause of action. The court accepts the pleaded facts as true and asks whether they state a legally cognizable claim. Conclusory or speculative allegations, without supporting facts, will not suffice.
• Prima facie showing: The initial showing a movant must make to support a motion—in the limitations context, it means establishing on the face of the record that the time to sue has expired.
• “Dehors the record”: Material that is outside the record on appeal. Appellate courts will not consider such material and may strike related briefing.
• Notice of claim (GML §§ 50-e, 50-i) and indemnification (GML § 50-k): Before suing for tort damages related to acts of a municipal employee in the scope of employment, plaintiffs must generally serve a notice of claim on the municipality within a short statutory period. When the municipality is obligated to indemnify the employee, this notice requirement applies even if the municipality is not named as a defendant. Serving the notice is a “condition precedent,” meaning it must be done before the suit can proceed.
• Executor substitution: When a party dies during an appeal, an executor may be substituted to continue the litigation on behalf of the decedent’s estate.

Conclusion

Bamonte v. Charatan clarifies and reinforces critical doctrines in New York tort practice. First, it cements that right-of-sepulcher claims accrue upon actual awareness of interference and concomitant mental anguish; suspicion does not trigger the statute of limitations. This is especially consequential in disappearance and “cold case” scenarios, where reliable knowledge may surface only decades later. Second, it tightens pleading standards for claims against tangentially implicated individuals, making clear that speculative and conclusory allegations will not survive a CPLR 3211(a)(7) challenge. Third, it reaffirms that when a municipality must indemnify a defendant-employee, plaintiffs must timely serve a notice of claim on the municipality—even if it is not named—before maintaining the action.

The net effect is a pathway for right-of-sepulcher claims to proceed, even long after an underlying disappearance, when plaintiffs can plausibly allege specific interference and demonstrate their subsequent awareness. At the same time, Bamonte underscores the procedural rigor required: nonconclusory pleadings tailored to each defendant and strict adherence to municipal notice-of-claim rules. Finally, its partial striking of extra-record material offers a cautionary note for appellate practitioners to confine briefing to the record. As modified, the decision allows the claims against Robert Durst’s estate to proceed while foreclosing claims against other defendants for pleading and procedural shortcomings, marking an important, balanced precedent in the law of sepulcher and New York civil practice.