LITIGATION OVER FUNERAL AND BURIAL

First Presbyt. Church of Monroe v Vays, 2021 NY Slip Op 06606, Decided on November 24, 2021, Appellate Division, Second Department:

"The First Presbyterian Church of Monroe (hereinafter the Church) is a religious corporation that owns and operates the Seamanville Cemetery located in Monroe. In October 2014, in connection with the recent death of their son, Boris Vays and Praskovya Vays (hereinafter together the Vayses) were approached by Thomas Sullivan, who was employed by Smith, Seaman & Quackenbush, Inc. (hereinafter SSQI), as its funeral director. The Vayses hired SSQI to provide funeral arrangements and burial services. Among other expenses, the Vayses paid SSQI the sum of $3,600 to purchase three burial plots in the Church's cemetery. On October 31, 2014, the Vayses' son was buried. By deed dated November 2, 2014, the Church conveyed the burial plots to Boris Vays. The deed provided that the conveyance was "for human burial purposes only; subject to each and every rule and regulation in respect to the use of said cemetery which has been, or which may hereafter be, made by the Board of Trustees of said corporation and posted in its office, to which rules and regulations the grantee assents as though made part hereof, as covenants running with the land."

In 2016, the Church commenced this action against the Vayses, inter alia, to recover damages for breach of the foregoing covenant in the deed, alleging, among other things, that the Vayses violated its rules and regulations for the use of the cemetery by erecting a monument that exceeded its prescribed height limitation, and by placing artificial adornments, plants, and brick edging on or around the plots. The Church also sought a judgment declaraing that the covenants had been so breached and injunctive relief related thereto.

The Vayses asserted various counterclaims and thereafter commenced a third-party action against SSQI and Sullivan (hereinafter together the third-party defendants), seeking, in the first third-party cause of action, damages for breach of contract relating to a casket they purchased, and in the fourth third-party cause of action, damages for violations of General Business Law § 349.

Prior to discovery, the Church moved for summary judgment on the complaint and separately moved for summary judgment dismissing the Vayses' counterclaims. The third-party defendants moved pursuant to CPLR 3211(a)(7) to dismiss the third-party complaint. In an order and interlocutory judgment dated March 21, 2018, the Supreme Court, inter alia, granted those branches of the Church's motion which were for summary judgment on the first and second causes of action; granted, in part, that branch of the Church's motion which was for summary judgment on the third cause of action; declared that the covenants had been violated and that the Church had the right to remove the monument, adornments, certain plants, and a portion of the brick edging; and granted related injunctive relief. In an order dated March 21, 2018, the court, among other things, granted those branches of the Church's motion which were for summary judgment dismissing the Vayses' first through seventh and tenth counterclaims, and granted, in part, those branches of the Church's motion which were for summary judgment dismissing the Vayses' eighth and eleventh counterclaims. In a second order dated March 21, 2018, the court, inter alia, granted those branches of the third-party defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss the first and fourth third-party causes of action. The Vayses appeal from all three papers.

The Supreme Court erred in granting those branches of the Church's motion which were for summary judgment on the first and second causes of action, granting, in part, that branch of the Church's motion which was for summary judgment on the third cause of action, granting those branches of the Church's separate motion which were for summary judgment dismissing the first through seventh and tenth counterclaims, and granting, in part, those branches of the Church's separate motion which were for summary judgment dismissing the eight and eleventh counterclaims. At this pre-discovery stage of the action, triable issues of fact remained, including as to whether the Vayses' installations on the burial plots violated rules and regulations of the Church to which the Vayses were subject, whether the Church waived any such violation of the rules with respect to the [*2]monument by pre-approving the Vayses' monument design, and whether Sullivan was either an actual or apparent agent of the Church. "The court's function on a motion for summary judgment is 'to determine whether material factual issues exist, not to resolve such issues'" (Ruiz v Griffin, 71 AD3d 1112, 1115, quoting Lopez v Beltre, 59 AD3d 683, 685).

The Supreme Court also erred in granting those branches of the third-party defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss the first and fourth third-party causes of action. Those third-party causes of action alleged that the Vayses paid $14,025 for a particular casket, but that their son was buried in a different casket, valued at only $3,000. In support of the motion to dismiss, Sullivan averred in an affidavit that the Vayses' son was interred in the casket chosen by the Vayses. This averment did not show that "a material fact as claimed by the pleader to be one is not a fact at all" or otherwise conclusively demonstrate that the Vayses had no cause of action (Francisco v Kiara Foods, Inc., 197 AD3d 563, 564 [internal quotation marks omitted]; see Sokol v Leader, 74 AD3d 1180, 1181-1182). Accordingly, those branches of the third-party defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss the first and fourth third-party causes of action should have been denied."

LAW OF THE DEAD - DISPOSITION OF REMAINS

Who controls where and how you will be buried, cremated, etc.? How would you make sure that your wishes were followed? Your spouse wants you to be created, your son wants you to be buried, your daughter agrees with burial but not the cemetery your son wants, etc. And now that you have passed away, your family is falling apart and threatening litigation because no one agrees as to how, where, when the remains of Dad or Mom are to be laid to rest.

In addition to making pre-paid funeral plans, allow me to introduce you to Public Health Law ⸹ 4201 which provides that a funeral home, cemetery must follow the directions of certain individuals or entities in a priority order. The first priority is given to, at PHL 4201 (2) (a) (i), the person designated in a written instrument executed pursuant to the provisions of this section. And at PHL 4201 (3), the statute provides:

"3. The written instrument referred to in paragraph (a) of subdivision two of this section may be in substantially the following form, and must be signed and dated by the decedent and the agent and properly witnessed:

   APPOINTMENT OF AGENT TO CONTROL DISPOSITION OF REMAINS 

I, _____________________________________________________________________

   (Your name and address) 

being of sound mind, willfully and voluntarily make known my desire that, upon my death, the disposition of my remains shall be controlled by ___________________________________________________________________ . 

   (name of agent) 

With respect to that subject only, I hereby appoint such person as my agent with respect to the disposition of my remains. 

SPECIAL DIRECTIONS: Set forth below are any special directions limiting the power granted to my agent as well as any instructions or wishes desired to be followed in the disposition of my remains: ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________

  Indicate below if you have entered into a pre-funded pre-need agreement subject to section four hundred fifty-three of the general business law for funeral merchandise or service in advance of need:

  [] No, I have not entered into a pre-funded pre-need agreement subject to section four hundred fifty-three of the general business law.

  [] Yes, I have entered into a pre-funded pre-need agreement subject to section four hundred fifty-three of the general business law. ________________________________________________________________________ 

 (Name of funeral firm with which you entered into a pre-funded pre-need funeral agreement to provide merchandise and/or services) 

AGENT: Name: __________________________________________________________________ Address: _______________________________________________________________ 

Telephone Number: ______________________________________________________ 

SUCCESSORS:

  If my agent dies, resigns, or is unable to act, I hereby appoint the following persons (each to act alone and successively, in the order named) to serve as my agent to control the disposition of my remains as authorized by this document: 

1. First Successor 

Name: __________________________________________________________________ 

Address: _______________________________________________________________ 

Telephone Number: ______________________________________________________ 

2. Second Successor 

Name: __________________________________________________________________ 

 Address: _______________________________________________________________ 

 Telephone Number: ______________________________________________________ 

DURATION: This appointment becomes effective upon my death. 

PRIOR APPOINTMENT REVOKED:

  I hereby revoke any prior appointment of any person to control the disposition of my remains. 

Signed this day of , . ________________________________________________________________________ 

 (Signature of person making the appointment) 

Statement by witness (must be 18 or older) I declare that the person who executed this document is personally known to me and appears to be of sound mind and acting of his or her free will. He or she signed (or asked another to sign for him or her) this document in my presence. 

Witness 1: __________________

   (signature) Address: _________________ 

Witness 2: _________________

   (signature) Address: _________________ 

ACCEPTANCE AND ASSUMPTION BY AGENT:

  1. I have no reason to believe there has been a revocation of this appointment to control disposition of remains.

  2. I hereby accept this appointment.

  Signed this day of , .

  _______________________

  (Signature of agent)"

  

TEXT OF NEW YORK PET BURIAL LAW

The headlines read " YOU CAN NOW BE BURIED WITH YOUR PET". But only in limited circumstances. S2582/A2647 was signed yesterday by the Governor and provides:

 "Section  1.  Section  1502  of  the  not-for-profit corporation law is
amended by adding a new paragraph (q) to read as follows:

 (Q) THE TERM "PET CREMATED REMAINS" MEANS ASHES AND/OR  OTHER  RESIDUE
RECOVERED  AFTER THE COMPLETION OF CREMATION OF ANY DOMESTIC ANIMAL THAT
HAS BEEN ADAPTED OR TAMED TO LIVE IN INTIMATE  ASSOCIATION  WITH  PEOPLE
WHERE  SUCH  CREMATION  HAS  OCCURRED AT A PET CREMATORIUM AS DEFINED IN
SECTION SEVEN HUNDRED FIFTY-A OF THE GENERAL BUSINESS LAW.

 S 2. Section 1510 of the not-for-profit corporation law is amended  by
adding a new paragraph (n) to read as follows:

 (N)  INTERMENT  OF PET CREMATED REMAINS. THE INTERMENT OF PET CREMATED
REMAINS IN A CEMETERY CORPORATION SHALL BE AVAILABLE TO A LOT OWNER ONLY
IN THOSE CIRCUMSTANCES WHERE THE INTERMENT IS INCIDENTAL TO  THE  BURIAL
OF  HUMAN REMAINS AND WHERE AUTHORIZATION HAS BEEN PROVIDED IN A WRITTEN
STATEMENT FROM THE CEMETERY CORPORATION.  THE CEMETERY CORPORATION SHALL
PROVIDE A LIST OF APPROVED CHARGES FOR THE INTERMENT  OF  SUCH  REMAINS.
ALL  PAYMENTS  RECEIVED FOR INTERMENT OF SUCH REMAINS SHALL BE DEPOSITED
IN THE CEMETERY CORPORATION'S PERMANENT MAINTENANCE FUND.  PET  CREMATED
REMAINS MUST BE DISPOSED OF BY PLACING THEM IN A GRAVE, CRYPT, OR NICHE.
NOTHING  IN  THIS SECTION SHALL OBLIGATE A CEMETERY CORPORATION TO ALLOW
INTERMENT OF SUCH CREMATED PET REMAINS WHERE PRIOR APPROVAL AT THE  TIME
OF  SALE  OR IN ADVANCE OF NEED HAS NOT BEEN RECEIVED. THE PROVISIONS OF
THIS SECTION SHALL NOT APPLY TO AN INCORPORATED OR UNINCORPORATED  CEME-
TERY  OPERATED, SUPERVISED OR CONTROLLED BY A RELIGIOUS CORPORATION OR A
LOT, PLOT OR PART THEREOF WHOSE RECORD OWNER IS AN INCORPORATED OR UNIN-
CORPORATED RELIGIOUS ASSOCIATION OR SOCIETY.

 S 3. This act shall take effect immediately."

The summary explains it better:

"Section 1 of the bill amends Section 1502 of Article 15 of the Not-for-Profit Corporation Law to add a new definition of pet cremated remains. 

Section 2 of the bill amends Section 1510 of Article 15 of the Not-for-Profit Corporation Law to add a new subdivision to provide the option for the interment of pet cremated remains in a cemetery corporation only in those instances where the interment is incidental to the burial of human remains and where authorization has been provided in a written statement from the cemetery corporation. 

The provisions of this section make it clear that this bill does not apply to an incorporated or unincorporated cemetery operated, supervised or controlled by a religious corporation or a lot, plot or part thereof whose record owner is an incorporated or unincorporated religious association or society. Under the provisions of this section, a cemetery is not obligated to allow for such interments, however, the legislation provides a regulated option for such disposition. 

Section 3 of the bill states that this legislation shall take effect immediately."