Giannini v Giannini

[*1] Giannini v Giannini 2006 NY Slip Op 50849(U) [12 Misc 3d 1151(A)] Decided on March 9, 2006 Supreme Court, Suffolk County Whelan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 9, 2006
Supreme Court, Suffolk County

Rosalie Giannini, Petitioner,

against

Marie Giannini and Breslau Cemetery Association, Inc., Defendants.



05-26053



Blumberg, Cherkoss, et al.

Attys. For Petitioner

330 Broadway

New York, NY 11701

Forchelli, Curto, et al.

Attys. For Respondent Marie Giannini

330 Old Country Rd.

Mineola, NY 11501

Breslau Cemetery Assn., Inc.

Respondent Pro Se

P.O. Box 941

Lindenhurst, NY 11757

Thomas F. Whelan, J.

It is ORDERED that this petition seeking an Order pursuant to Not-For-Profit Corporation Law § 1510(e) permitting the body of Michael A. Giannini, deceased, to be exhumed, is denied; and it is further ORDERED that movant shall within twenty (20) days of the date herein serve a copy of this Order with Notice of Entry upon counsel for the respondent, Marie Gianni, pursuant to CPLR 2103(b)(1), (2) or (3) and upon respondent, Breslau Cemetery Association, Inc., at its last known address by first class mail with a US Postal Service Confirmation Delivery Receipt and thereafter file the affidavits of service with the Clerk of the Court. [*2]

This is an action for an Order pursuant to Not-For-Profit Corporation Law § 1510(e) permitting the body of Michael A. Giannini, deceased, to be exhumed by his widow, Rosalie Giannini. The petition is opposed by the family of the deceased. Breslau Cemetery, wherein the decedent is buried, takes no position in the petitioner's application.

In her affidavit in support of the petition, Rosalie Giannini states that she is seeking exhumation of the body of her deceased husband in order to cremate his remains; that she was married to the decedent for a little less than two years; that it was each of the party's second marriage; that the decedent died suddenly on December 2, 2004 from a heart attack; that during the period of their marriage, when discussing their wills, the decedent expressed to her his desire to be cremated; that the decedent had stated to her, in no uncertain terms, that he did not wish to be buried after his death as he did not want his children and family crying and mourning at his grave site; that he stated that "when you are dead, you are dead;" and that he did not want his loved ones to feel obligated to visit his grave site as he had been obligated to visit his father's grave site.

Petitioner further states that during the funeral arrangements, her brother-in-law, Mitchell Giannini, and his wife arranged for her to accompany them to Breslau Cemetery (hereinafter "Breslau"); that at the time, she was informed by her brother-in-law how important is was for the entire family to be buried together; that he stated her late husband would understand; that she would purchase a burial plot for herself and her late husband and then he would purchase six adjoining burial plots; that in the weeks and months following the burial, she suffered from grief and anguish; that she did not heed her late husband's wishes to be cremated; that during this time period, she received telephone calls from Breslau stating her brother-in-law did not purchase the six burial plots and that if they were not purchased immediately, they would be offered for sale to the general public; that her late husband and herself would then wind up lying next to strangers; and that the thought of this was overwhelming and she ended purchasing the six burial plots in order to prevent strangers from being buried next to her and her late husband.

Petitioner also describes her anguish in disobeying and dishonoring her late husband's explicit wishes and instructions and states that the reason she did not initially cremate her late husband was based upon the false promise of her brother-in-law; and that she is absolutely convinced her brother-in-law deliberately lied to her concerning his intention to buy the adjoining burial plots, in derogation of her late husband's wishes, merely to have a grave site available for her late husband's mother, Marie Giannini, which was precisely the reason her late husband did not want to be buried in a cemetery. Further, that almost immediately after the burial of her late husband, his family began to embark on a course of conduct which could not have been more calculated to dishonor her late husband's memory and cause her incalculable distress and grief; that her late husband loved green growing things; that together they owned a substantial landscaping business; that her late husband's family started placing cheap, junky, plastic flowers on his grave site; that when she removed them, they would immediately be replaced by even more gaudy articles; and that this was done even though the family was aware of her preference the family honor her late husband's memory with living things instead of the cheap pieces of plastic they placed at the grave site. [*3]

Petitioner contends that in September, 2005, she was shocked, dismayed and disgusted to find that her brother-in-law purchased, what she called a secondary plot, directly beneath the feet of her deceased husband and erected a marble foot stone with the inscription that he was a loving son, brother and father; that the foot stone makes no mention of her and was spitefully erected for the sole, exclusive purpose of dishonoring her; that it has inflicted horrible pain, suffering and anguish; that by installing the foot stone, the family has violated cemetery rules and her sense of propriety; and that she is at a loss to understand why her late husband's family placed it there.

Finally, petitioner states that as a result of her in-laws' fraud and desecration, every time she visits her late husband's grave site or even visualizes it, she experiences the inescapable pain of knowing that she failed to honor her husband's stated wishes and that she was a victim of a deliberate fraud and misrepresentation on the part of her late husband's family; that their actions have desecrated her late husband's grave and the memory of their life together in a most provocative, crass and deliberate manner; that in her heart, she cannot let her late husband remain buried there; that she succumbed in a moment of weakness in burying her late husband; that as her late husband's family did not honor their promises, the memory of her life and marriage to the decedent has been subjected to the most heartless and cruelest of attacks; and that under these circumstances, it is entirely appropriate for the court to intercede and grant an order for exhumation so that her late husband's remains could be cremated according to his wishes and instructions (see affd. of Rosalie Giannini, 10/27/05).

In opposition to the petition, decedent's family submits the affidavits of Marie Giannini, decedent's mother, Jacqueline Giannini, the fifteen year old daughter of the decedent, and Mitchell Giannini, decedent's twin brother, as well as, a copy of the properly attested Last Will and Testament of the decedent dated February 7, 2003.

In her affidavit, Marie Giannini states that the death of her son was very painful to her; that it helps her to visit his grave site; that she recalls an incident which occurred on her son's birthday, when she placed flowers on the grave site and was informed later that they had been removed by family members; that every time she visits the grave site and places flowers, they are removed; that since her floral tributes are being removed from her son's grave site by, she believes, her late son's wife, she purchased the secondary burial plot and installed the foot stone; that as the removal of the flowers are hurtful to her, she also purchased the secondary plot to place flowers on in the hope they would not be removed; that, in stead of alleviating the tension between the family, the purchase of the secondary plot acted to incite her late son's wife; that it was after her late son's wife learned of the secondary plot, that she contacted Breslau to exhume her late son and have his remains cremated; that nowhere in her late son's will is there any mention of cremation; that she remembers a card received in December of 2004 from her late son's wife, which indicated she would pay to have her late husband's remains removed and placed next to his son's; that she also notes her daughter-in-law commissioned a head stone in June 2005 to be placed on her son's grave site; that the action taken be her late son's wife is being done out of spite because she purchased a secondary burial plot and because of lingering intra family disputes unrelated to her late son's burial; that it is her belief her late son wished to be buried in Breslau as his father is; that his entire family would be buried there; that there is nothing wrong with the cemetery grounds and that she and her family flatly oppose the [*4]exhumation of her son and his cremation.(see affd. of Marie Giannini, 12/1/05).

Jacqueline Giannini, decedent's fifteen year old daughter, states in her affidavit that she is presently living with her maternal mother; that she has had no contact with her late father's second wife since January, 2005; that it has recently come to her attention that her stepmother is seeking to exhume her father's remains and have him cremated; that her stepmother never asked her for her opinion on the matter; that if she did, she would assert her strong opinion against disturbing her father's final resting place; and that she has spoken to her younger brother, who is thirteen years old, and he is in agreement with her opinion that their father's final resting place should be undisturbed (see affd, of Jacqueline Giannini, 12/1/05).

Mitchell Giannini states in his affidavit, that he disputes the assertion of decedent's wife regarding his brother's wishes to be cremated; that it was his brother's absolute desire to be buried at Breslau because when he and his brother would visit his father's grave site, his late brother would tell him that he wished to be buried near their father in the cemetery; that he and his late brother agreed the cemetery would be a desirable place to be buried because their father was already buried there; that it was close to the family residences; that addressing the issue of his late brother's wish to be cremated, he states that in all of the conversations he had with his late brother, his late brother never stated to him that he wished to be cremated; that it was his wish to be buried near his father with the rest of the family; that his late brother's will makes no mention of cremation; that it is his belief that his late brother's wife's reason to exhume her late husband has to do more with her "desire to get the last word" in because of ongoing intra family disputes involving insurance proceeds, financial support to his late brother's children and family businesses; that he believes the family purchase of the secondary burial plot prompted Rosalie Giannini to take the drastic step of seeking to exhume her late husband and cremate his remains a year after he was buried; and that no intra family dispute should be the basis to exhume his brother (see affd. of Mitchell Giannini, 12/1/05).

In response to the affidavits submitted in opposition to her petition, Rosalie Giannini submits a further reply affidavit and states that she reiterates the reasons set forth in her affidavit in support of the petition; that she refutes the reason advanced by the family of her late husband that her petition should be denied because of he wished to be buried near his father as the grave sites are so distant they may as well be in different cemeteries; that while she understands her late husband's mother's pain, it provides no excuse for what she considers horrific behavior on her part and that of her son; that her late husband's family has desecrated his grave and marred the memory of their marriage; that she never sought to hide or conceal the fact it was her intention to have her late husband cremated; that she only wants to honor her husband's memory in the way he intended and requested; that she takes issue with her late husband's family to involve his daughter in this issue and is an indication of the lengths they will go to in order to stop the exhumation; that she blames her brother-in-law for all of the problems, claiming he is an interloper, a liar and has no legal standing in this matter; that she has doubts as to any conversation her brother-in-law had with her late husband concerning where he wanted to be buried; that her late husband had no relationship with his brother; that his brother's affidavit is a falsehood and was drafted solely to support his mother's petition; that she is critical of the physical condition of the cemetery and regrets having buried her late husband there; that any of the issues raised in the respondents' affidavits are of no concern to [*5]her; that she could care less who gets the last word; and that she only wants to honor her late husband's wishes (see affd of Rosalie Giannini, 12/15/05).

Article 15 § 1510(e) of the Not-For-Profit Corporation Law provides: Removals. A body interred in a lot in a cemetery owned or operated by a corporation . . . may be removed therefrom, with the consent of the corporation, and the written consent of the owners of the lot and of the surviving wife, husband, children, if of full age, and parents of the deceased. If the consent of any such person or the corporation cannot be obtained, permission by the county court of the county or the supreme court in the district . . . shall be sufficient. (emphasis added)

While examining an application to exhume a body, the Court of Appeals in Saperstein v Commercial Travelers, 36 NY2d 79, 84, 365 NYS2d 154 (1975) stated: In other contexts we have found that it is the public policy of this State that the quiet of the grave, the repose of the dead, are not lightly to be disturbed. Good and substantial reasons must be shown before disinterment is to be sanctioned (citing Currier v Woodlawn Cemetery, 300 NY 162 [1949]).

In allowing the removal of a decedent's remains, the Courts have looked at several factors, including good and substantial reasons (see In Re Brand, 117 AD2d 597, 629 NYS2d 501 [3d Dept 1987]; Currier v Woodlawn Cemetery, 300 NY 162, supra ) and the request and consent of all of the decedent's next of kin (see Matter of Herskovits, 183 Misc 41, 148 NYS2d 906 [Sup Ct Queens County 1944]). The court will consider the circumstances particular to each case while exercising a "benevolent discretion, giving heed to all those promptings and emotions men and woman hold sacred in the disposition of their dead and must render judgment as it appraises the worth of the competitive forces" (Yome v Gorman, 242 NY 395, 402 [1926], citations omitted). Disinterment is usually not allowed unless supported by a strong case and only under "circumstances of extreme exigency" will justify it (see Zablotower v Mt. Zion Cemetery, 98 Misc 2d 77, 413 NYS2d 106 [Sup. Ct. Queens County 1975]; see also Matter of Fromm, 280 AD 1022, 117 AD2d 81 [3d Dept 1952]). The law throws around the body of a deceased human being a protection even in their graves. The right of Christian sepulture includes the right to one's remains respected in his or her last resting place. Many circumstances arise from time to time necessitating a disturbance of the repose of the dead, but it must be some controlling public reason or a superior right which should induce the court to permit that which from time immemorial has been considered abstractly as a work of desecration.[*6]

(In Re Ackerman, 124 AD 684, 685, 109 NYS 228 [1st Dept 1908]; see also Application of Peruso, 58 Misc 2d 915, 297 NYS2d 213 [Sup Ct Queens County 1969]).

In the instant matter, the deceased was buried without objection by the petitioner and with her tacit consent in Breslau Cemetery, in a burial plot chosen by her. Moreover, months after his demise, she purchased additional grave sites adjoining her late husband's burial plot so that strangers would not be buried next to him. Although petitioner states in her petition that she and her late husband discussed, during their brief marriage, his desire to be cremated, his last will and testament, executed during their marriage, is devoid of any reference to being cremated. Counsel for petitioner states in his reply affirmation that while the will contains no express provisions regarding the decedent's wishes as to the disposition of his remains, it also does not say he wished to be buried. Counsel's statements are in direct contravention of his client's statements in her affidavit.

Furthermore, petitioner's reply affidavit states that the decedent's brother had no relationship with her late husband. This statement is belied by the fact that decedent's will indicates that if the petitioner should predecease him, or survives him and fails to qualify, then his brother would be nominated as a substitute executor and his brother and his wife would be the guardian of his infant children. This type of trust is not placed in the hands of a person who is not someone with whom one does not have a strong, personal and lasting relationship.

Petitioner fails to address her purchase of a tombstone to place on her late husband's burial site eight months after his demise or her expressed desire to have her late husband's predeceased father interred next to his son from his burial site in the same cemetery. The Court finds that petitioner's actions following the burial of her late husband dilutes and undermines any credence to the contentions raised in her affidavit and reply affidavit (cf. In the Matter of Irene Inzero, 278 AD2d 945, 104 NYS2d 810 [2d Dept 1951]; see also Matter of Fromm, 280 AD 1022, supra ). Petitioner also has not supported her late husband's wishes with any affidavits of others or other evidentiary proof. "The dead are to rest where they have been laid unless reason of substance is brought forward for disturbing their repose" (Yome v Gorman, 242 NY 395, at 403, supra ; citations omitted).

The petitioner having failed to provide a good and substantial reason to warrant permission to disturb the remains of the decedent, denial of the petition is warranted. Based upon the particular facts and circumstances of this case, the Court does not discern the need for an evidentiary hearing based solely upon the petitioner's conclusory and unsubstantiated statements regarding her late husband's desire for cremation (see e.g In the Matter of Dutcher v Paradise, 217 AD2d 774, 629 NYS2d 501 [3d Dept 1995]; cf. In the Matter of the Estate of Esther Scheck, 172 Misc 2d 236, 14 NY2d 946 [Surrogate's Ct Kings County 1939]).

It is very clear from the record before the Court that the petitioner and the respondents are alienated from each other concerning visitation to the decedent's burial site and other issues for reasons which occurred after the death of the decedent which have escalated to the point that this application is now before the Court. "A court of equity will not lend its aid in a family quarrel to disturb the dead" (In Re Ackerman, 124 AD 684, supra ). Life is short and uncertain and it is no [*7]tribute to the memory of this husband and father that his wife and his family should engage in controversy. If the departed knew of this dissension, he would not rest in peace wherever his bodily remains might be (see Petition of Costa, 83 NYS2d 65 [Sup Ct Oneida County 1947]; affd 274 AD2d 872, 83 NYS2d 226 [4th Dept 1948]). As the Court stated in Costa, this family should amicably adjust their differences.

Accordingly, the petition is denied. This constitutes the Order and decision of the Court.

THOMAS F. WHELAN, J.S.C.