Liere v Alan E. Fricke Mems., Inc.
Annotate this CaseDecided on March 18, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : JERRY GARGUILO, J.P., ELIZABETH H. EMERSON, HELEN VOUTSINAS, JJ
2020-230 S C
Robert Liere and John Liere, Appellants,
against
Alan E. Fricke Memorials, Inc. and Herman Liere, Respondents.
Robert J. Cava, P.C. (Robert J. Cava of counsel), for appellants. Johannesen & Johannesen, PLLC (Richard Johannesen of counsel), for respondent Herman Liere. Feldman, Rudy, Kirby & Farquharson, P.C. (Gerald F. Kirby of counsel), for respondent Alan E. Fricke Memorials, Inc..
Appeal from an order of the Suffolk County Court (James F. Matthews, J.) dated December 16, 2019. The order granted a motion by defendant Herman Liere for summary judgment dismissing the complaint insofar as asserted against him, denied plaintiffs' cross motion for summary judgment, and, upon searching the record, granted summary judgment dismissing the complaint insofar as asserted against defendant Alan E. Fricke Memorials, Inc.
ORDERED that the order is affirmed, without costs.
Plaintiffs commenced this action in Supreme Court, Suffolk County, alleging causes of action for negligence, trespass and conversion, based on defendants' modification of the inscription on a monument for a family plot in the Yaphank Cemetery. Plaintiffs do not contest the accuracy of the modifications; rather, they argue only that defendant Herman Liere (defendant) had no ownership interest either in the plot or the monument and thus lacked the authority to cause modifications to be made to the monument. Defendant Alan E. Fricke Memorials, Inc. (Memorials, Inc.) is the entity that defendant hired to inscribe the modifications on the monument. After defendants answered the complaint, denying liability, and defendant Memorials, Inc. cross-claimed against defendant, alleging that defendant was liable to it to the extent that it was liable to plaintiffs, defendant moved for summary judgment dismissing the complaint insofar as asserted against him, contending that, as a descendant of the purchaser of [*2]the cemetery plot, he has an ownership interest in the plot and thus had the right to modify the monument. Plaintiffs opposed defendant's motion and cross-moved for summary judgment, arguing that only they, as the sole owners of the plot, had been entitled to make revisions to the monument. The action was then transferred to the Suffolk County Court pursuant to CPLR 325 (d).
The salient facts underlying the motions were uncontested. Herman Henry Liere, whose name defendant denominated with the suffix "Sr." and to whom plaintiffs attributed the nickname "Hank," purchased the plot in 1998, as well as the monument. The plot was deeded to the "Herman H. Liere Family." Hank had four children: defendant's father, plaintiffs herein, and Lorraine. Hank was predeceased by defendant's father, who died in 1997, and by Hank's spouse, who died in 1998. Hank died in 2007. His will made no reference to the plot. Lorraine, who never married and had no children, died in 2016, and did not make a specific bequest in her will with respect to the plot. On these facts, the Suffolk County Court granted defendant's motion, denied plaintiffs' cross motion, and, upon searching the record, granted defendant Memorials, Inc. summary judgment dismissing the complaint insofar as asserted against it.
Under N-PCL 1512 (b), where a cemetery plot owner who is not survived by a spouse, such as Hank, dies without specifically devising the plot in his or her will, ownership of the plot is not included in the decedent's residuary estate but instead passes to the owner's "descendants then surviving," who have also been described as the decedent's "heirs at law" (see Matter of Turkish, 48 Misc 2d 600 [Sur Ct, Kings County 1965]; see also 18 NY Jur 2d, Cemeteries and Dead Bodies § 66). Under EPTL 2-1.1, "heirs at law" generally means the decedent's "distributees," which, as defined in EPTL 1-2.5, means "a person entitled to take or share in the property of a decedent under the statutes governing descent and distribution." EPTL 4-1.1, governing "descent and distribution," directs that where, as in the case of Hank, a decedent is survived by issue and no spouse, his undevised property passes to "the issue, by representation" (EPTL 4-1.1 [a] [3]), and that where, as in the case of Lorraine, a decedent is survived by the issue of her parents, but is not survived by a spouse, by issue of her own, or by either of her parents, her undevised property passes to "the issue of the parents, by representation" (EPTL 4-1.1 [a] [5]). Property passing by representation:
"is divided into as many equal shares as there are (i) surviving issue in the generation nearest to the deceased ancestor which contains one or more surviving issue and (ii) deceased issue in the same generation who left surviving issue, if any. Each surviving member in such nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving issue of the deceased issue as if the surviving issue who are allocated a share had predeceased the decedent, without issue" (EPTL 1-2.16; see also 1 Harris, New York Probate Administration and Litigation § 5:28 [6th ed] [Note: online treatise]).Since Hank was survived by three issue (plaintiffs and Lorraine) and was predeceased by one issue (defendant's father), each of his surviving issue inherited one share in the cemetery plot and one share passed to be divided among the issue of his predeceased child, one of whom is defendant. Upon Lorraine's death, her share was divided into three parts, one of which went to each of the plaintiffs and one of which went to the issue of defendant's father, who was her predeceased brother. Consequently, as one of the issue of Hank's predeceased child and also as [*3]one of the issue of Lorraine's predeceased brother, defendant became a part owner of the cemetery plot. Contrary to plaintiffs' contention, the language of the governing statutes, as applicable here, is not ambiguous.
In view of the foregoing, the sole contention plaintiffs raise on appeal for a reversal of the County Court's order—that defendant is liable for the inscription on the monument because he is a nonowner of the cemetery plot—lacks merit. Consequently, plaintiff has failed to demonstrate any basis for this court to disturb the County Court's order.
Accordingly, the order is affirmed.
GARGUILO, J.P., EMERSON and VOUTSINAS, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 18, 2021
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
