Audit Highlights Shortcomings At Division of Cemeteries

On July 11, 2017, the New York State Comptroller's Office reported its findings from an audit of the Division of Cemeteries ("Division") conducted between January 1, 2014 and March 31, 2017.  The audit focused on the Division's monitoring of the fiscal stability and facility maintenance of cemeteries, and found a range of issues with the Division's practices, and yielded a number of statistics.

Of the 1,745 cemeteries under Division supervision, the audit found 642 cemeteries (37%) had overdue audits and 285 (16%) had delinquent annual reports, with 145 cemeteries (8%) missing both. The audit also found 22% of cemeteries had not been inspected in over 7 years.  The audit also found that this lack of information was largely due to antiquated data management. 

The audit also examined 64 high-risk or abandoned cemeteries using two different models.  It found 37 cemeteries had a median shortfall in their permanent maintenance fund of $25,500.  It also found that the two models used by the Division could reach starkly different conclusions.  Given the opportunity to respond to the audit, the Division noted that these models are only one aspect of a comprehensive approach to fiscal monitoring, which includes reviewing annual reports, periodic inspections, and reaching out to cemetery officials directly to gauge a cemetery's fiscal health.

Finally, the audit noted some positive developments.  For example, the Division recently updated its Cemetery Law Manual, and is currently in the process of updating its operations manuals.  In addition, resources have been devoted to updating the Division's computer systems and data management.  These changes largely track with the audit's recommendations, suggesting significant progress may be made in the near future.

A PDF of the full audit report, including the Division's response to the preliminary report, can be found here.


Legislature Amends NFPCL To Permit Re-Acquisition Of Lots From Defunct Burial Societies

Defunct burial societies can present issues for cemeteries. In many cases, they acquired multiple plots for their members, but disbanded before all of those graves were filled. The result is plots that have been unoccupied, and abandoned, for decades, with no method for a cemetery to reclaim them.  That should change based on the law signed by Governor Cuomo on November 29, 2017. 

Under the law, cemeteries may seek the approval from the cemetery board to reclaim  plots owned by non-sectarian burial societies. This can be done under two circumstances.  First, if the cemetery has received a burial request but was unable to contact a representative of the burial society (NFPCL 1512(h)), or second, if regular mailings to the burial society have gone unanswered, as have certified mailings to the burial society's officers. The law then requires a cemetery to make several certified mailings and public postings to try and contact burial society officers.

If a cemetery still cannot locate the burial society's officers, it may reclaim the lots, excepting lots that are reserved for specific individuals.  Those lots may then be resold, with 15% of the proceeds going to a perpetual care fund in the name of the defunct society (the remaining proceeds go to the permanent maintenance and current maintenance funds). A cemetery must also keep 10% of the reclaimed graves in reserve for 20 years in case an individual entitled to burial is located.  Finally, the law requires any resold graves include a restriction that monuments be consistent with those in the surrounding area.  

The full text of the new law can be found here.  


Family Feud: Avoiding Liability In Disputes Over The Disposition Of Remains

Death can be a unifying event, bringing together friends and relatives of the deceased. Yet when there is a dispute among the family about how to dispose of the remains, cemeteries must act carefully to avoid liability.

Since 2005, disputes about the disposition of remains have been governed by New York Public Health Law ("PHL") § 4201.  This provision lists who has priority to make decisions about the disposition of remains, and may shield cemeteries from liability. PHL § 4201(7) states a cemetery or crematory operator shall not be liable "for actions taken reasonably and in good faith" to (1) "carry out the written directions of a decedent as stated in a will or in a written instrument," or (2) "carry out the directions of a person who represents that he or she is entitled to control of the disposition of remains." Notably, the latter clause requires a written statement from the individual that he or she was either  designated in a writing, such as the will, or that there is no written designation, but the person has priority under PHL § 4201(2).  Absent a written designation, PHL § 4201(2) gives priority to a surviving spouse or domestic partner, followed by an adult child, then a parent, etc.

In Mark v. Brown, 82 A.D.3d 133 (2d Dep't 2011), the written representation was critical. In Brown, a cemetery was sued for negligent infliction of emotional distress after cremating the decedent's remains.  The cemetery had received a signed authorization from the widow, as named in the death certificate, but plaintiff claimed she was the surviving spouse, and the authorizing "widow" was decedent's wife from an earlier marriage. Plaintiff also claimed decedent was a practicing Catholic that owned a burial plot. The Appellate Division, Second Department held that PHL § 4201 shielded the cemetery from liability where it acted in good faith based upon a written authorization and the marriage certificate. Thus, the Court affirmed the grant of summary judgment in favor of the cemetery.

If, unlike Brown, the dispute is known to the cemetery in advance, the law still provides protection, stating "no person providing services relating to the disposition of the remains of a decedent shall be held liable for refusal to provide such services, when control of the disposition of such remains is contested." Such protection continues pending a court order or notice signed by all parties and/or their legal representatives resolving the dispute. 

 


Cremations Account For 50% Of All Funerals In 2016

As first reported by the New York Times, the National Funeral Directors Associations ("NFDA") recently issued a report finding that cremations accounted for more than half of all funerals in 2016.  This represents the first time that cremations have passed the 50% threshold. It is also indicative of a larger trend, as the NFDA forecasts that cremations will account for 63.8% of funerals in 2025 and 78.8% of funerals in 2035.

Though cremations accounted for 50% of funerals nationally, the New York metropolitan area has lagged behind other parts of the country, particularly the west coast.  In Connecticut, the numbers were almost evenly split with 43.4% of funerals being cremations and 44.3% were burials. In New York, cremations only accounted for 41.9% of funerals, while burials were at 51.8%.  Similarly, in New Jersey the numbers were 41.9% cremations and 47% burials.  Yet despite lagging the rates in states like California, the number of cremations has continued to grow nationwide, including in New York.

The New York Times article discusses various reasons for this trend.  One factor is that Americans are becoming less religiously observant, and even some religious denominations themselves have loosened restrictions relating to cremation.  For example, the Catholic Church has acknowledged the growing use of cremation, and has moved to accommodate the trend, subject to certain restrictions on practices like scattering ashes.  The other major concern is cost, as cremation usually costs about a third of a traditional funeral and burial.

Finally, the article discusses a variety of anecdotal stories about how cemeteries have adapted to the growing trend in cremation.  Notably, the New York Times interviewed Mitch Rose, the president of Woodlawn Cemetery, to discuss the various new burial options for cremated remains that Woodlawn has adopted.  These include creative options such as inside benches or boulders near a stream.

The full New York Times article can be found at https://www.nytimes.com/2017/08/10/nyregion/cremations-increase-in-a-move-away-from-tradition.html


From St. Pat's To Peoria: The Journey Of Archbishop Fulton Sheen's Remains On The Road To Sainthood

On November 16, 2016, a judge in New York County granted a petition to relocate the remains of Venerable (formerly Archbishop) Fulton Sheen from St. Patrick's Cathedral in Manhattan to St. Mary's Cathedral in Peoria, Illinois. Sheen, one of the first televangelists, was recognized for having lived a life of "heroic virtue" and has been credited with a miracle, two significant steps towards beatification and sainthood. However, his cause for canonization was suspended in 2014 due to a dispute between the Archdiocese of New York and the Diocese of Peoria over the handling of his remains. To break the stalemate, Sheen's niece and longtime aide, Joan Sheen Cunningham, petitioned to have Sheen's remains moved to Peoria, to continue the process for sainthood.

The petition claimed that Sheen would have wanted to have his remains moved to Peoria, as it was the city in which he was raised, ordained as a priest, and where his parents were buried. The petition also claims that relocation of Sheen's remains would aid in his campaign for sainthood. In opposition, the Archdiocese of New York argued Sheen wanted to be buried in New York, as his will had directed burial in another Archdiocese cemetery, Calvary Cemetery.  However, his remains were ultimately buried at the more prestigious St. Patrick's Cathedral with the consent of his relatives and the Archdiocese.

In its decision, the Court noted the long-standing principle that "the quiet repose 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." Furthermore, the most important factor for a court exercising its "benevolent discretion" are the wishes of the decedent. Here, however, Sheen's will directed that he be buried in Calvary Cemetery, and his wishes were undeniably ignored. Accordingly, the Court held that it would not speculate as to what Sheen would have wanted when his unambiguous wishes were not followed, nor would it take a position on issues of Catholic canon law.

In making its decision, the Court applied a two-part test: (1) did Petitioner demonstrate sufficiently important reasons for disinterment, and (2) did the Archdiocese identify a good reason to deny the request. On the first prong, the Court recognized Petitioner's reasons, enumerated above, as a good and substantial basis for disinterment. In contrast, the Archdiocese failed to show good reason for denying the petition, citing only the generalized desire that Sheen wanted to be buried in New York.  Finding this argument to be mere conjecture, the Court granted the petition, and put Archbishop Sheen back on the path to sainthood.

The Court's full decision can be found here.


Cemetery Board Unveils New Financial Reporting Form; Plans Information Sessions

On January 12, 2017, the Cemetery Board published a revised version of its annual financial reporting form. The new form, available on the Division of Cemeteries website, significantly eases the filing requirements for cemeteries with less than $50,000 in total assets or less than 15 burials per year. As a result, nearly half of cemeteries will have their reporting requirement reduced from twelve pages to three. 

Notably, all cemeteries are required to file the new annual financial reporting form. This includes cemeteries that are required to submit CPA-reviewed or audited financial statements, and as a result were previously exempt from the additional filing the annual financial reporting statement.


The Cemetery Board has also announced that it will hold a series of informational meetings in February and March to discuss the changes with cemetery officials. Based upon the feedback received, it may further amend the form to address any unforeseen issues. The full meeting schedule can be found in the Board's 2017 bulletin


NYSAC Provides Model Regulations For Pet Burial Law

As discussed in our last post, the New York State Association of Cemeteries recently published a series of model amendments, reproduced below, to amend a cemetery's rules and regulations to implement the newly passed pet burial law.  Please note, however, that these are merely an example, and are not a substitute for cemetery-specific rules and regulations drafted in consultation with counsel. 

If you find these regulations to be helpful, please consider becoming a member of the New York State Association of Cemeteries.  In addition to providing templates such as the model regulations below, members also have access to resources such as NYSAC volunteers to help you understand and implement the new law.  For more information, please visit the NYSAC website at nysac.com.

INTERMENT, ENTOMBMENT, OR INURNMENT OF DOMESTIC PETS

The following rules are adopted in order to implement the change in the law governing not-for -profit public cemeteries which permits a cemetery to authorize the interment of pet cremated remains where such interment is incidental to the burial of human remains.

Section 1. All interments, entombments, and inurnments of cremated domestic pet cremains are subject to these Rules and Regulations and shall also be subject to all the laws, ordinances, or requirements of the State of New York.

Section 2. Interment of cremated domestic pet cremains shall be permitted in ______________ (specific or all) sections subject to the following limitations of ____ pet interments per grave (or as defined in the deed to the lot, plot or part thereof).

Section 3. All interments, entombments, and inurnments of domestic pet cremains must be made at a time and in a manner scheduled and approved solely by the Cemetery and are subject to ___________ (no or additional) charges that are effective on the date of the interment, entombment, or inurnment. Scattering of cremated pets is not permitted in the cemetery.

Section 4.  The authorization for interment, entombment or inurnment of a cremated pet will be granted by the cemetery only with the consent of ____________________. Absent the consent of ______________ disputes must be settled as follows _______________________.

Section 5. The Cemetery reserves the right to refuse interment, entombment, or inurnment of a cremated domestic pet, and to refuse to open any burial space for that purpose, except on written application by a lot owner of record prepared on forms provided by the Cemetery and duly approved and filed with the Cemetery. No interment, entombment, or inurnment of a cremated domestic pet shall be permitted in any grave, crypt or niche until all charges for such grave, crypt or niche are fully paid.

Section 6. (Optional language) The Cemetery requires that for every in-ground interment of a domestic pet cremains, the remains must be placed into either a traditional non-sealed concrete urn vault or a child-sized permanent urn, or a plastic temporary urn vault.

(Possible options for memorialization – please be sure to specifically outline what memorialization is permitted or prohibited)

Section 7. The right of memorialization of a cremated pet duly authorized for interment, entombment, or inurnment shall be granted to ____________________.  Options for memorialization of cremated domestic pet cremains include:

           
            a.) No memorialization;

            b.) Placement of a memorial medallion on the marker, monument, monolith, crypt-front, or niche-front as approved by   the cemetery.

            c.) A granite or bronze memorial which is NOT the primary monument for a grave or lot and subject to the same privileges and requirements as provided elsewhere in these Rules & Regulations.

Section 8. For each interment, entombment, or inurnment of a domestic pet, the pet’s name, owner’s name, and type of domestic pet, date and location of interment and type of disposition shall be recorded in the Cemetery’s permanent record in a manner appropriate to the cemetery.

Section 9. Disinterment: Authorization for the disinterment of a cremated pet shall be authorized by_____________________.


Adapting Your Cemetery's Regulations To Accommodate The New Pet Burial Law

On September 26, 2016, Governor Cuomo signed a bill to allow the interment of cremated pet remains alongside human remains. Last week, the New York State Division of Cemeteries ("DoC") issued guidance to help cemeteries understand the law's requirements. Cemeteries that do not wish to handle cremated pet remains are encouraged to explicitly include this restriction in their regulations. In addition, the new law does not apply to religious cemeteries.

Cemeteries planning to handle cremated pet remains must be aware of what constitutes acceptable remains, how such remains may be handled, and the associated documentation requirements. The law limits "pet cremated remains" to ashes of a "domestic animal... adapted or tamed to live in intimate association with people" that was cremated "at a pet crematorium."  However, it falls to the cemetery to verify that any remains it accepts meet these criteria. Other examples of required documentation include: (1) proof of the sale of the burial rights and prices charged; (2) the name and signature of the person authorizing the interment; (3) the pet's name and type; (4) the date and location of the interment; and (5) whether the container for the pet's cremated remains was placed in the casket or buried separately. With respect to price, it should also be noted that the full interment charge must be deposited in the cemetery's permanent maintenance fund, and that such prices are subject to DoC approval.

Cemeteries must also be conscious of how and where they bury cremated pet remains. The law only authorizes the interment of such remains in a "grave, crypt, or niche" that "contains or will contain human remains."  When cremated pet remains are interred, they should be kept in their own urn and not commingled with human remains.  For ground burials, the remains should be placed inside or near the casket. Finally, a cemetery cannot have a section devoted only to interring or memorializing pet remains.  However, it may limit the burial of pets to specific areas within the cemetery. These limits should be set forth in the cemetery's regulations. Cemeteries should also consider regulations on: (1) whether the policy for burying pet remains applies only to new graves or retroactively; (2) the maximum number of human and pet remains allowed per lot; (3) who may authorize interment of pet remains where there are multiple lot owners; and (4) disinterment procedures specific to pet remains. 

In addition to guidance from DoC, the New York State Association of Cemeteries has prepared model regulations for issues related to cremated pet remains.  These sample regulations will be included in a subsequent post


Vatican On Cremated Remains: Bury, Don't Scatter

In 1963, the Catholic Church lifted its doctrinal prohibition on cremation, despite a continued preference for traditional burial.  Yet as cremation has grown in popularity, many local priests have struggled with the absence of clear norms for handling cremated remains. In response, the Vatican recently issued new guidelines on cremation which, among other things, prohibit the scattering of ashes in favor of preserving the cremated remains in cemeteries and other approved sacred sites. The new guidelines also reaffirm the spiritual and canonical underpinnings of the Church's teachings and stated preference for traditional burial.


The guidelines reiterate that burial in a cemetery "encourages family members and the whole Christian community to pray for and remember the dead."  Accordingly, the Vatican states that cremation urns should not be kept in loved one's homes except in "grave and exceptional cases dependent on cultural conditions of a localized nature." The text also prohibits scattering loved one's ashes or using the ashes in the creation of jewelry, stating that such "unfitting or superstitious practices" can promote "erroneous ideas about death."  


Legislative Alert: Governor Cuomo Signs Bill Allowing Burial Of Cremated Pet Remains

On Monday afternoon, Governor Andrew Cuomo signed S.2582/A.2647, which allows for humans to be buried with their cremated pet provided that the cemetery consents. Cemeteries will also be required to place all payments for the pet internment in its permanent maintenance fund and provide customers with a list of charges pertaining to the burial of the pet. This legislation doesnot apply to cemeteries owned or operated by religious associations or societies. 

For a more detailed discussion, refer to our earlier blog post on thew new law, which can be found here.



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