Cunningham v Trustees of St. Patrick's Cathedral

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[*1] Cunningham v Trustees of St. Patrick's Cathedral 2016 NY Slip Op 51656(U) Decided on November 16, 2016 Supreme Court, New York County Bluth, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 16, 2016
Supreme Court, New York County

Joan Sheen Cunningham, Petitioner,


Trustees of St. Patrick's Cathedral, Archdiocese of New York, Respondents.


Attorney for Petitioner: Steven Cohn, P.C., Carle Place, NY

Attorney for Respondents: Kelley Drye & Warren LLP, New York, NY
Arlene P. Bluth, J.

When a man's stated intention about his burial site is not followed because the parties involved in the burial believed he would have accepted an offer to be buried at a more prestigious location, how should a Court analyze an application for disinterment? This Court must consider petitioner's justification for the requested disinterment and the basis of respondents' refusal to consent. After reviewing the papers in this proceeding, the Court finds that petitioner has provided a good and substantial reason for moving the remains of the decedent, Archbishop Fulton J. Sheen (Archbishop Sheen), to St. Mary's Cathedral in Peoria, Illinois and that respondents failed to supply a sufficient reason to reject the instant application.

Because the material facts are undisputed, no hearing is necessary.[FN1]


Petitioner was Archbishop Sheen's niece. She moved to New York from Illinois when she was ten years old was raised by Archbishop Sheen. When she was older, she became his loyal and longtime assistant. Respondents control St. Patrick's Cathedral, the interment site of Archbishop Sheen. This proceeding was brought because respondents denied petitioner's request to disinter the remains of Archbishop Sheen from a crypt in St. Patrick's Cathedral in New York City so he can be re-interred in St. Mary's Cathedral in Peoria, Illinois.

Archbishop Sheen, who led a long and distinguished career as a teacher and preacher of the Roman Catholic faith, passed away in December 1979. Five days before he died, he executed a will which specifically stated his desire to be buried in a plot, which he had purchased in 1976, located in Calvary Cemetery in Queens, New York. After his death, petitioner contends that Cardinal Cooke, of the Archdiocese of New York, sought her permission to inter Archbishop Sheen in a crypt in St. Patrick's Cathedral in Manhattan. Petitioner, as Archbishop Sheen's closest living relative, assented to this request and Archbishop Sheen was interred at St. Patrick's Cathedral in 1979.

In 2002, Bishop Jenky of the Diocese of Peoria, Illinois began the process to explore whether Archbishop Sheen should be declared a Saint of the Roman Catholic Church. Petitioner claims that the Archdiocese of New York had no interest in this cause for canonization and cites to a letter from Cardinal Egan in 2002 suggesting that Peoria was the "ideal diocese" to start the canonization process (see petition, exh A). Peoria is where Archbishop Sheen grew up, his parents are buried there and it is where he studied and became a priest. Petitioner further claims that Cardinal Egan promised Bishop Jenky that the Archdiocese of New York would consent to transferring Archbishop Sheen's remains to Peoria if the cause for canonization was successful.

Petitioner asserts that the canonization process has stalled now that the Archdiocese of New York objects to transfer Archbishop Sheen's remains to Illinois.

Respondents claim that it was Archbishop Sheen's desire to be buried in New York; Calvary Cemetery is owned by respondent Archdiocese of New York. Respondents further argue that as operators of Archbishop Sheen's resting place, they cannot consent to the instant application because they must respect his wishes.


Because respondents do not consent to the disinterment, the statutes of New York allow for petitioner to seek permission from a court to disinter Archbishop Sheen.

"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 district, where the cemetery is situated shall be sufficient." (N-PCL 1510[e]).

The principles guiding a court in a contested disinterment proceeding were elucidated by the Court of Appeals in Currier v Woodlawn Cemetery, 300 NY 162 (1949). "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. While the disposition of each case is dependent upon its own particular 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 sacred in the disposition of the dead" (id. [internal quotations and citations omitted]).

"And looming large among the factors to be weighed are the wishes of the decedent himself. If the deceased had been a member of a faith which forbade disinterment, if he had agreed with the cemetery corporation that there should be no exhumation whatsoever, if he had elected to be laid in hallowed earth and the request was for reburial in unconsecrated ground, then only compelling considerations would justify disinterment and removal" (id.).

Archbishop Sheen's Interment at St. Patrick's Cathedral

Five days before he died in December 1979, Archbishop Sheen executed his will. It is undisputed that he directed that he was to be buried in a specific plot he had purchased in Calvary Cemetery in Queens, New York. His will states "It is my will and I direct that my Executor hereinafter named, arrange for my funeral Mass to be celebrated at St. Patrick's Cathedral, New York City, and for my burial in Calvary Cemetery, the official cemetery of the Archdiocese of New York" (affirmation of respondents' counsel exh B, ¶ 2). Clearly, Archbishop Sheen's stated directions regarding his final resting place were not followed.

Respondents attempt to claim that Archbishop Sheen's will evidences an intent to be buried with the Archdiocese of New York and, therefore, moving him would be contrary to those wishes. But that is not what the will states. The will identifies Calvary Cemetery as his intended final resting place and St. Patrick's as the location of his funeral mass.

Respondents offer the affidavit of Msgr. Hilary C. Franco, who claims that Archbishop Sheen told him that Cardinal Cooke had offered to bury Archbishop Sheen at St. Patrick's Cathedral (aff of Franco, ¶ 12). Critically, Msgr. Franco does not state that Archbishop Sheen wanted to be buried at St. Patrick's; Msgr. Franco only claims that Archbishop Sheen told him that Cardinal Cooke had made the offer. If Archbishop Sheen knew he had an offer to be buried in St. Patrick's Cathedral, then why did he state in his will, dated only five days before his death, that he wanted to be buried in Calvary? He was clearly capable of identifying that he wanted to be buried in St. Patrick's if that option was available or in Calvary Cemetery if St. Patrick's was not available. Perhaps Archbishop Sheen did not want to be buried in St. Patrick's. Perhaps he decided to be in the earth rather than a crypt. Or maybe he was too humble to put such a request in his will. The "perhaps" and "maybe" scenarios could fill a page, but every one would be mere speculation. The Court declines to credit respondents' efforts to impute their own speculated meaning into the unambiguous clause of Archbishop Sheen's will.

This is what is not speculation: there is no support for the conclusion that Archbishop Sheen expressed a specific desire to be buried in St. Patrick's Cathedral.

How did his remains end up in St. Patrick's when his will directed burial in Calvary? According to petitioner, after her uncle's death, she was approached by Cardinal Cooke, who asked petitioner for her permission to have Archbishop Sheen's body interred in the crypt at St. [*3]Patrick's Cathedral in Manhattan. Notably, petitioner, as Archbishop's Sheen's closest living relative, was asked to make the ultimate decision regarding the location of Archbishop Sheen's remains. Respondents admit that petitioner consented to Archbishop Sheen's burial in St. Patrick's Cathedral (answer of respondents ¶ 5). The Court recognizes that being interred at St. Patrick's Cathedral is a great honor and understands that an esteemed priest of the Catholic Church probably would cherish the opportunity to be interred at St. Patrick's Cathedral. But what is relevant to the instant proceeding is that this decision contravenes Archbishop Sheen's will, that respondents suggested it and that respondents, by Cardinal Cooke, sought petitioner's permission.

After giving that consent in 1979, petitioner now claims, universally supported by Archbishop Sheen's family, that Archbishop Sheen should be moved to Peoria to support his own canonization process.

Disinterment Analysis When Decedent's Will Was Disregarded

Unlike the decision to have Archbishop Sheen's body interred at St. Patrick's, the parties now disagree with what Archbishop Sheen would have wanted. Petitioner claims that Archbishop Sheen would have wanted to be moved to Peoria if he knew that he would become a saint (affidavit of Joan Sheen Cunningham in reply, ¶ 34). Respondents claim that he would have wanted to stay in New York. The Court declines to speculate about what a decedent would have wanted.

Despite the decedent's known wishes expressed in a will written just five days before his death, the parties agreed to ignore that provision of the will and interred him elsewhere. Now, almost forty years later, that agreement cannot be used to support either the claim that the decedent would want to have his remains stay in that alternate burial place or that they should be moved to another location. However, the agreement demonstrates that respondents suggested and offered petitioner the opportunity to overlook decedent's written burial wishes and then gave petitioner the final say. Certainly, there is no evidence that, in 1979, respondents insisted on strictly enforcing Archbishop Sheen's will.

Respondents Failed to Identify a Good Reason to Deny Petitioner's Request

Preliminarily, the Court notes that it takes no position, and has no interest in opining, on issues of Catholic canon law; that is a province reserved for the Catholic church alone. This decision resolves a dispute between the family of a decedent and the entities which oversee the burial site. No one else objects.

Courts have often ruled in favor of a deceased's family in disinterment proceedings where the only objector was the cemetery (see Currier v Woodlawn Cemetery, 300 NY 162, 164-65 [1949]; Matter of Bobrowsky, 266 AD 849, 42 NYS2d 36 [2d Dept 1943]; Matter of Schecter, 261 AD 926, 25 NYS2d 434 [2d Dept 1941]; Matter of Hubbard, 47 Misc 2d 315, 316, 262 NYS2d 724 [Sup Ct, Cayuga County 1965]).

The Court finds that the motivation of petitioner and all other family members for moving the remains is understandable and important to them and "that not whim or caprice motivated [petitioner's] decision, but rather sound reason and laudable purpose" (Currier, 300 NY at 165).

There is no evidence to suggest that this proceeding is anything other than petitioner's carefully considered request made with honest intentions. Petitioner noted her close relationship with Archbishop Sheen and recounts that she left her family in Illinois to be with her uncle in [*4]New York when she was just ten years old (aff of petitioner in reply, ¶ 28). Petitioner contends that Archbishop Sheen raised her as if she was his daughter (id. ¶¶ 29-30). Further, petitioner does not stand to gain financially if the Court rules in her favor and, as she states in her affidavit, petitioner attempted to resolve this dispute before bringing this proceeding and derives no joy in suing respondents.

Petitioner brings this petition for disinterment because she believes it will aid in the canonization process for Archbishop Sheen and observes that Archbishop Sheen's parents are buried only a few blocks from St. Mary's Cathedral. Petitioner also reasons that St. Mary's Cathedral is where Archbishop Sheen was ordained a priest and a place where he visited often during his lifetime. These are important reasons for petitioner and rest of Archbishop Sheen's family and the Court finds petitioner has presented good and substantial reasons to disinter Archbishop Sheen.

What is the basis of respondents' objection? They do not claim that the family is seeking to transfer Archbishop Sheen from hallowed earth for reburial in unconsecrated ground (cf. Yome v Gorman, 242 NY 395, 403 [1926]); it is undisputed that Archbishop Sheen's remains would be moved from consecrated ground at St. Patrick's Cathedral to consecrated ground at St. Mary's Cathedral. There is no claim that Archbishop Sheen expressed any wish forbidding disinterment of his remains. Nor is there a claim that disinterment is forbidden in the Catholic faith. Rather, respondents' objection is based on unsupported speculation that decedent wanted his remains to stay in New York and that moving his remains to Illinois would contradict his wishes. But, as discussed above, Archbishop Sheen expressed a desire to be buried in Calvary Cemetery. Respondents' claim that Archbishop Sheen expressed a general desire to be buried in New York is an unsupported conjecture.

Under these circumstances, where the decedent's known wishes were not followed, that is, Archbishop Sheen is not interred where he intended, the Court will defer to the wishes of the family because petitioner has set forth a justifiable, good, and substantial reason for moving Archbishop Sheen's remains. None of the common factors disfavoring disinterment are present here such as exhumation to unconsecrated ground or contravening the wishes of the decedent (see Currier, 300 NY at 164).

The Court does not find it appropriate to engage in speculation regarding how Archbishop Sheen might have viewed his own canonization process and whether he would have wanted his remains moved after nearly four decades.[FN2] Although much time has passed since Archbishop Sheen's death, there is no evidence to support the claim that petitioner waited too long to bring the instant proceeding. The papers submitted suggest that the canonization process stalled in 2014 and thereafter petitioner attempted to negotiate a settlement with respondents. Therefore the concept of laches, as described in Petition of Guggenheim, (249 AD 653, 291 NYS 467 [2d 1936), is inapplicable.

When Archbishop Sheen passed away, respondents allowed petitioner to decide whether to change Archbishop Sheen's burial location. In a similar fashion, this Court now defers to [*5]petitioner's request.

Accordingly, it is hereby

ORDERED that petitioner's petition is granted; and it is further

ORDERED that petitioner is granted the right to remove the remains of Archbishop Fulton J. Sheen from St. Patrick's Cathedral in New York, NY to St. Mary's Cathedral; and it is further

ORDERED that petitioner shall bear all reasonable costs for the removal and transportation of Archbishop Sheen's remains and shall obtain all necessary permits prior to such removal and transportation.

This is the Decision and Order of the Court.[FN3]

Dated: November 16, 2016

New York, New York


Footnote 1:An evidentiary hearing is not required because the parties have not raised an issue of fact regarding the decedent's wishes (Pring v Kensico Cemetery, 54 AD3d 766, 767, 863 NYS2d 730 [2d Dept 2008]). It is undisputed that Archbishop Sheen's will stated that he wished to be buried in Calvary Cemetery and that wish was not followed. There are no conflicting accounts about the decedent's burial wishes (Briggs v Hemstreet-Briggs, 256 AD2d 894, 681 NYS2d 853 [3d Dept 1998]). Instead, the parties dispute whether Archbishop Sheen would want his remains moved under the present circumstances. A hearing would only invite speculation on that issue.

Footnote 2:It is unsurprising that Archbishop Sheen never left instructions regarding how his remains should be handled should he be considered for sainthood. Archbishop Sheen was known for his humility (aff in reply of petitioner, ¶ 7).

Footnote 3:As the Court stated during oral argument, respondents' sur-reply, filed on October 27, 2016 (NYSCEF Doc. Nos. 38-42) was not considered in the Court's decision because it was filed without seeking permission from the Court.

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