Matter of Eirand-Herskowitz v Mt. Carmel Cemetery Assn.

[*1] Matter of Eirand-Herskowitz v Mt. Carmel Cemetery Assn. 2010 NY Slip Op 50728(U) [27 Misc 3d 1213(A)] Decided on April 23, 2010 Supreme Court, Queens County Lane, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 23, 2010
Supreme Court, Queens County

In the Matter of Debra Eirand-Herskowitz, Petitioner,

against

Mt. Carmel Cemetery Association, et al., Respondents.



12952/09



For Petitioner:

Francis X. Moroney, Esq.

497 Westbury Avenue

Carle Place, New York 11590

For Respondents Jean Herskowitz and Nanci Gordon:

Moritt, Hock, Hamroff & Horowitz LLP

400 Garden City Plaza, Suite 202

Garden City, New York 11530

by: Charles R. Kleinhardt, Esq.

Henry Klosowski, Esq.

For Respondent Mt. Carmel Cemetery Association:

Martin A. Fischer, Esq.

254 East 68th Street

New York, New York 10021

Howard G. Lane, J.

This is a proceeding pursuant to Not-For-Profit Corporation Law ("N-PCL") § 1510(e) to disinter the remains of the petitioner's husband, Jamie Herskowitz, from the Herskowitz family plot in the Mount Carmel Cemetery (hereinafter "Mt. Carmel"), Queens County, New York in which he is now buried and to permit the removal of such remains from such plot to the petitioner's family plot in the Saint [*2]Elizabeth Memorial Chapel (hereinafter "St. Elizabeth Cemetery"), Eagle Valley, Sloatsburg, New York. The respondents, Jean Herskowitz and Nanci Gordon, are the mother and sister of the decedent and have an ownership interest in the Herskowitz family plot. They oppose the petition. The respondent Mt. Carmel Cemetery Association does not oppose the petition.

An application under N-PCL 1510(e) is analogous to a special proceeding and an evidentiary hearing is required where the papers and pleadings raise a material issue of fact concerning the burial wishes of the decedent (Matter of Lichtman v. Highland View Cemetery Corp., 289 AD2d 244 [2d Dept 2001]; Matter of Briggs v. Hemstreet-Briggs, 256 AD2d 894 [3d Dept 1998]). In a decision and order dated September 11, 2009, this court determined that upon review of the papers and pleadings herein, they raise material issues of fact concerning, inter alia, the decedent's expressed wishes regarding his final resting place in his deceased father's family plot in Mt. Carmel Cemetery and being buried together with his spouse, and accordingly ordered that an evidentiary hearing be held. A hearing was held on December 8, 2009, and at the conclusion of the hearing, the parties were directed to submit to the court, post hearing memorandums by February 10, 2010, which date was extended at the request of counsel for the parties. Based upon papers and pleadings herein, and upon the credible evidence adduced at the hearing and the admissible exhibits, the following constitutes the court's findings of fact and conclusions of law:

FINDINGS OF FACTS

Based on an evaluation of the credibility of the witnesses and the exhibits, the court finds the testimony of all of the witnesses credible, and the essential facts are not in dispute.

After being together and dating since 1988, and being engaged to be married in 1998, petitioner Debra Eirand-Herskowitz and Jamie Herskowitz were married on March 6, 1999. From when they were married and up to the time of Jamie Herskowitz's death on November 6, 2007, they lived together, residing in Tuxedo, New York.

During the course of their marriage, they celebrated holidays together including Christmas, Thanksgiving and Easter. With respect to Christmas, they developed a tradition of putting up a Christmas tree. Although Mr. Herskowitz was Jewish, he did not actively practice his faith during the nearly 20 years of their marriage. Petitioner is Catholic, however she concedes that she is not a practicing Catholic. With regard to the couple's relationship with her late husband's mother and sister, she testified that they lived in California and that she and Jamie "had very little to do with them" and that Jamie "did not spend much time with them." Mrs. [*3]Herskowitz and Ms. Gordon visited New York infrequently, and except for one or two special occasions, Mrs. Herskowitz did not visit Jamie and Debra in Tuxedo, New York.

On May 7, 2006, Mr. Herskowitz was diagnosed with "pulmonary arterial hypertension" and thereafter had to be placed on oxygen. In or about September 2007, they began discussing future burial and funeral arrangements including the fact that they wanted to be buried together and that her husband did not want to be separated from his wife in death. At that time petitioner also believed that her husband owned two deeds for cemetery plots at the Mt. Carmel Cemetery, one plot which contained the remains of his late father and a second plot of which contained the remains of his paternal grandparents. Although before they were married, they had discussed his grandfather's family burial plots in Mt. Carmel Cemetery as a potential burial place for them both, after her husband became ill, they later discussed these plots again, and decided that they did not want to be buried in Queens County because they did not live there nor did they have family or friends who lived there. As a consequence, they began investigating purchasing burial plots in a cemetery closer to their home in Tuxedo, New York. They considered and ruled out one cemetery because it was restricted to Catholics, and as her husband was Jewish, they could not be buried together. Just days prior to her husband's final days of life, they visited St. Elizabeth Memorial Chapel, in Eagle Valley, New York, near Tuxedo and they agreed that was where they would purchase their burial plot. Indeed, after the visit, Mr. Herskowitz designed a headstone that he wanted to have placed on the grave he would share with his wife with the inscription to read: "Number one husband. Loving you always and forever until we meet again." Since her husband had a hospital visit scheduled for November 2, 2007 for a medical procedure, they had agreed that on the Monday after his hospital visit they would follow-up and make arrangements to purchase the plots at St. Elizabeth's Cemetery. Unexpectedly and sadly, Mr. Herskowitz was never able to make arrangements to purchase the plots, as he never left the hospital, having succumbed to the effects of his illness. Jamie Herskowitz died on November 6, 2007.

After her husband's death, petitioner was extremely distraught so much so that she was unable to make burial and funeral arrangements. As a result, the burial and funeral arrangements were made by her husband's mother and sister. Although, she was not present and had no active participation in the funeral and burial arrangements, she admits that on November 8, 2007, she signed an authorization requested by Mt. Carmel Cemetery which authorized the burial of his remains in the Mt. Carmel Cemetery. The authorization states that: "I hereby authorize the interment of and future monument work for Jamie Herskowitz whom I know to be a member of the Jewish faith" in the plot owned by Calvin Herskowitz, Jamie's father. However, she testified that at that time she was emotionally distraught and grieving over the sudden, unexpected death of her husband, and did not know that the plot could not accommodate her remains so that she could be buried with her husband. It was on the day of burial on November 8, 2007 she realized for the first time that her husband was to be buried at Mt. Carmel Cemetery. Even at that time she believed, although erroneously, that the plot in which he was to be buried had a second adjoining plot for her to be buried with him in the future.

Shirley Pinkney testified as a close personal friend of the couple for nearly 17 years and corroborated the fact that although Mr. Herskowitz was Jewish he did not actively practice his religion, and did not attend nor was he a member of any synagogues. Patricia Flanagan also [*4]testified as a close personal friend of Mr. Herskowitz for nearly 18 years and of petitioner for nearly 30 years and corroborated the fact of the couple's longtime loving relationship and their wish to be buried together.

Respondent Jean Herskowitz is the mother of Mr. Herskowitz and resides in Laguna Hills, California. She had conversations with him when he expressed that he wanted to be buried in the Herskowitz family plot with his family in Mt. Carmel Cemetery. At their last visit to Mt. Carmel Cemetery they went together "into the office [of Mt. Carmel Cemetery] ... [to] see if there are any available plots", and a "man gave him a card, and .... said I'll be in touch." She conceded that when she did have conversations with her son concerning being buried with his family, she did not treat such statements as serious expressions of his intentions. She testified specifically as follows:

Q.Did you ever have a conversation with your son as to you taking care of his burial arrangements?

A.No, I did not.

Q.Did he ever have a discussion with you with respect to him being buried with your husband, your late husband?

A.He indicated that he would wind up near his family, Daddy, Nanny Ann, he would say and the rest of them and we would laugh.

Q.He indicated to you that's where he wanted to be buried?

A.Excuse me? Only those conversations.

...

A.That were very casual and life - - I never really took seriously because what mother wants to have a child go before she does.

Whenever she visited Mt. Carmel Cemetery with her son he would take out a prayer book, put on a yarmulke, and say a prayer at his father's grave.

Respondent Nanci Gordon is the sister of Mr. Herskowitz and resides in Laguna Hills, California. She testified that in or about October 20, 2007 he told her he wanted to be buried next to his father. Steven Smith, a close friend of Mr. Herskowitz for nearly 30 years, testified that during the period of May or June 2007 until in or about October 2007, the month prior to his death, he had conversations with him when he expressed to him that he wanted to be buried with his father. Dennis Kuccia, the attorney who participated in preparation, drafting and supervision of the execution of the Last Will and Testament of Jamie Herskowitz, testified that the decedent never indicated to him where he wanted to be buried or what funeral arrangements he wanted. The Will does not contain any provision concerning a specific place of burial.

Additional facts appear in the Conclusions of Law.

CONCLUSIONS OF LAW

A petition to disinter a bodyis governed by New York

Not-For-Profit Corporation Law (N-PLC) § 1510(e), which provides, in relevant part: [*5]

A body interred in a lot in a cemetery owned or operated by a corporation incorporated by or under a general or special law 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 of the corporation can not be obtained, permission by the county court of the county, or by the supreme court in the district, where the cemetery is situated, shall be sufficient.

(See, Matter of Lichtman v. Highland View Cemetery Corp., supra; Matter of Pring v. Kensico Cemetery, 54 AD3d 766, 767 [2d Dept 2008]). "In the absence of consent, a court may grant permission to disinter upon a showing of good and substantial reasons" (Matter of Pring v. Kensico Cemetery, supra at 767; citing N-PCL 1510[e]; Matter of Kelly v. Kelly, 16 AD3d 587 [2d Dept 2005]).

While a decedent's spouse has "a superior right over the decedent's parents in selecting [the] final place of burial" (Matter of Kelly v. Kelly, supra at 588); a decedent's own wishes "concerning his or her final resting place are of significant concern to courts in determining whether disinterment should occur" (Matter of Briggs v. Hemstreet-Briggs, supra at 894; see, Matter of Conroy v. Hynes, 138 AD2d 212 [3d Dept 1988]; Matter of Coraggio v. Coraggio, 21 Misc 3d 1111A, [Sup Ct, Richmond Cty 2008, McMahon, J.] [wishes of decedent are "significant concern" to court and may even prevail over wishes of surviving spouse]).

A decedent's wish that he or she be buried with his or her spouse constitutes "good and substantial" reason for disinterment (see, e.g., Matter of Pring v. Kensico Cemetery, supra [good and substantial reasons for disinterment existed where petitioner husband showed paramount concern of deceased wife was to be buried with husband and owners of plot where deceased was buried could not assure petitioner that he would be buried in a grave adjoining wife]). Where the decedent's wishes were unclear or vague, the desire of the surviving spouse to be buried with his or her deceased husband or wife has been found to constitute "good and substantial" reason for disinterment (see, e.g. Yome v. Gorman, 242 NY 395 [1926] [holding that disinterment "to satisfy a longing that those united during life shall not be divided after

death ..[is].. praiseworthy and decorous"]; Matter of Kelly v. Kelly, 16 AD3d 587 supra at 588 [holding that wife's showing that she and children would not be able to be buried with deceased husband because he had not been buried in a Catholic cemetery constituted "good and substantial" reason to disinter husband's remains]; Viscomi v. McGuire, 169 Misc 2d 713 [Sup Ct, Westchester County 1996, Donovan, J.] [trial court finding that notwithstanding wife's expression at one point in her lifetime to be buried with her mother, granted surviving husband permission to move wife's remains from wife's family grave site to new plot he purchased which would provide sufficient space for them to be buried together]; cf., Matter of Chait v. Chait, 270 AD2d 259 [2d Dept 2000] [Court denied wife's petition to disinter deceased husband's body but only on the condition that respondents convey to wife title to the burial plot immediately adjacent to that of her husband so that they could be buried together]).

DISCUSSION

The quiet of the grave, the repose of the dead, are not lightly to be disturbed. Good and [*6]substantial reasons must be shown before disinterment is to be sanctioned. (see, Yome v. Gorman, 242 NY 395, 403; Matter of Ackermann, 124 App Div 684, 685). While the disposition of each case is dependent upon its own peculiar facts and circumstances and while no all-inclusive rule is possible, the courts, exercising a 'benevolent discretion', will be sensitive 'to all those promptings and emotions that men and women hold for sacred in the disposition of their dead' (Yome v. Gorman, supra, 242 NY, at 402; Matter of Currier v. Woodlawn Cemetery, 300 NY 162, 164 [1949]). And looming large among the factors to be weighed are the wishes of the decedent himself . . . . . . [and] . . . . . then only compelling considerations would justify disinterment and removal. (Id. Matter of Conroy v. Hynes, supra at 215 [holding that the wishes of decedent is a significant factor to be considered whenever a court is asked to sanction disinterment]).

"'The person having charge of the remains holds them as a

sacred trust for the benefit of all who may, from family ties or friendship, have an interest in them; in case of a contention the court should assume an equitable jurisdiction over the subject, somewhat in analogy to the care and custody of infants, and make such a disposition as should seem to be best and right under all the circumstances'." (Matter of Bauer, 36 Misc 33, affd 68 App Div 212 [2d Dept 1902]).

In this case the issue for this court to decide is whether there exist good and substantial reasons for a court to exercise its benevolent discretion to permit petitioner to disturb the quiet of decedent's grave, and inasmuch as it is supported by the admissible evidence, decedent's wishes as expressed in his lifetime.

Petitioner argues that the wishes of decedent's spouse must take precedence over the wishes of his family. Petitioner also argues that the proof offered by respondents concerning alleged statements made by decedent with respect to his desire to be buried with his family are not inconsistent with petitioner's assertion that decedent also expressed a desire to be buried with his wife because those statements were made either before decedent learned that his death was imminent or without knowledge that the Herskowitz family plot did not have sufficient space so that decedent and his spouse could be buried together.

Respondents argue that the funeral and burial arrangements made by decedent's mother and sister following decedent's death were those requested by decedent before and after he learned that he had a serious illness, and that he wanted to be buried with his father for both family and religious reasons. Respondents contend that decedent made his request in statements to them and that decedent also expressed these wishes to decedent's friends. Respondents further contend that as the decedent was Jewish, he would never want to be buried in a cemetery of any other religious affiliation.

Where judicial sanction is sought for disinterment and removal of remains, the court must consider the following factors:

(1) the deceased's wishes expressed during his lifetime;

(2) the religious convictions of the deceased;

(3) by whose direction the choice of burial site was made; [*7]

(4) the desires and motives of close family, especially a

spouse in promoting a change of location;

(5) the sanctity of sepulture.

(See, Viscomi v. McGuire, supra, citing Matter of Frost v. St. Paul's Cemetery Assn., 44 Misc 2d 589, 591 [County Ct, Oneida County, 1964, Walsh, J.]).

Initially, the court is unpersuaded by respondents' argument that the decedent's expressions during his lifetime of his wish or desire to be buried together with his father were a clear and unambiguous manifestation of decedent's intentions concerning the final resting place of his remains. Indeed, decedent's mother conceded that she treated such declarations by decedent casually or lightly (see, Yome v. Gorman, supra). While decedent may have expressed these thoughts to his family and friends during his life, the court finds that decedent did not seriously focus on and finalize his wishes concerning his last resting place until the time in early November 2007 that his wife and he agreed they wanted to be buried together and to purchase the adjoining plots at St. Elizabeth Cemetery, just days before his death on November 6, 2007. Moreover, even were the court to credit the testimony of respondents' witnesses, such evidence is insufficient to overcome the proof that decedent's paramount wish and desire was to be buried with his wife.

Both respondents, mother and sister, testified to the fact that the decedent followed many Jewish traditions, and that his Jewish faith was an important part of his daily life. Although it is not the function of this court to sit in judgment of anyone's choice in the manner in which he/she chooses to practice or observe his/her faith, the court finds that these occasional, isolated acts of religious observance do not unequivocally constitute and support the fact that Jamie actively practiced his Jewish faith.Moreover, the court finds that whatever the nature of decedent's bond of religion, it was insufficient to overcome his paramount wish that his wife and he be together in death as they were in life (see, Yome v. Gorman, supra at 404 [dicta]).Additionally, as the proposed final resting place for his remains, St. Elizabeth Cemetery is nondenominational, there is no evidence to show that his burial there will offend his Jewish faith (see, Matter of Currier v. Woodlawn Cemetery, supra at 164 [1949] [where court held that factors to be considered in a disinterment proceeding were "[i]f the deceased had been a member of a faith which forbade disinterment, . . . [and] if he had elected to be laid in hallowed earth and the request was for reburial in unconsecrated ground....."]. There was no evidence presented by respondents to show decedent's paramount concern was that his remains be laid to rest in a Jewish cemetery.

Petitioner established a prima facie showing of good and substantial reasons to disinter and remove the remains of the decedent, which respondents failed to rebut. Here, virtually all of the factors weight heavily in support of the petitioner's application. It was the decedent's desire to be buried in a location (a) that is geographically near where his wife and closest surviving family member resides, as his sister and mother reside in California, (b) that both petitioner and decedent chose for their final resting place and (c) that would allow decedent's wishes to be buried together with his wife to be fulfilled and not offend his Jewish faith. While it appears that it was also decedent's wish to be buried in the Herskowitz family plot, if possible, his paramount concern was to be buried with petitioner, his wife. Notwithstanding that petitioner had initially authorized burial of her husband in the present location at Mt. Carmel Cemetery, the court finds [*8]that petitioner established that such decision was due to extreme emotional distress at the time of burial, and did not result in her waiving her rights of burial nor having consented at that time to a permanent resting place (Matter of Inzero v. Inzero, 278 App Div 945 [2d Dept 1951]). Furthermore, petitioner demonstrated that as the surviving spouse she has a superior right over the decedent's mother and sister in selecting his final place of burial (see, Matter of Kelly v. Kelly, 16 AD3d 587, supra). While the wish of a surviving spouse is not always supreme and final, particularly where the body has been laid at rest, (Yome v. Gorman, supra at 402 [1926]), it is well settled that a surviving spouse has high priority in selecting the place and mode of burial of the deceased spouse (Matter of Fromm v. Fromm, 280 App Div 1022, 1023 [3d Dept 1952]). Furthermore, as petitioner is not of the Jewish faith, and Mt. Carmel Cemetery will not accept her remains for burial because she is not a member of the Jewish faith, decedent's paramount desire to be buried with his wife could not be fulfilled if petitioner is not permitted to remove her husband's remains to the proposed family plot in the nondenominational St. Elizabeth's Cemetery.

CONCLUSION Accordingly, the application is granted provided (a) that petitioner purchase a suitable plot at Saint Elizabeth's Memorial Chapel; (b) that petitioner complies with all rules and regulations of law and the cemetery, including payment without any expense to the respondents, all necessary fees for removal and restoration of the present site at Mt. Carmel Cemetery to its original condition before interment; and (c) that petitioner, upon repayment to respondents of any headstone cost actually incurred, shall have the remains of her deceased husband, Jamie Herskowitz, presently interred in Mount Carmel Cemetery located at 85-45 Cypress Hill Street, Glendale, New York 11385 in the County of Queens, City and State of New York, Section 1-E path 48-6-12 removed to such other plot in Saint Elizabeth's Memorial Chapel

cemetery.

This constitutes the decision and order of the Court.

Counsel are directed to contact the clerk of IAS Part 6 at (718) 298-1210 for retrieval of petitioner's and respondents' exhibits.

A courtesy copy of this order is being mailed to counsel for the respective parties.

Dated: April 23, 2010.........................

Howard G. Lane, J.S.C.