Cemetery Faces Scrutiny After Being Forced To Relocate 220 Caskets

On April 9, 2019, St. Matthew's Cemetery in West Seneca, New York faced an emergency.  Engineers had reported that the land near Cayuga Creek had become unstable and may collapse, forcing the cemetery to start relocating 220 graves.  Yet while such action may have been prudent, it raises regulatory concerns that prompted an investigation from the New York State Division of Cemeteries (the "Division").

The main issue is that the Not-For-Profit Corporation Law ("NFPCL") does not permit the removal of remains in an emergency. NFPCL 1510(g) allows a cemetery to remove or repair certain types of dangerous conditions, but it does not excuse a cemetery from the requirement of getting consent or a court order under NFPCL 1510(e) before removing remains from a grave. Thus, while St. Matthew's may have acted reasonably, it actions may nonetheless have violated the NFPCL.

Further complicating this situation are the families of the deceased.  While St. Matthews has tried to contact such families, outdated contact information has made it difficult.

It will be interesting to see what approach the Division takes concerning the exigent circumstances.


New York State Allocates $2 Million For Abandonment Fund As Towns Face Crisis

In its 2019 budget, the State Legislature allocated $2 million for the abandonment fund, which helps towns cope with the cost of maintaining abandoned cemeteries. Yet as the number of towns burdened with maintaining abandoned cemeteries continues to increase, $2 million dollars will likely fall well-short of what is needed, despite being twice what was allocated the year before.  In fact, there are already $1.6 million in pending claims, despite the fiscal year only starting on April 1, 2019.

This issue of abandoned cemeteries is not new, but the severity of the situation is growing.  According to recent news reports, the Division of Cemeteries reports 170 cemeteries have failed since 1990.  However, the New York State Association of Cemeteries puts the number closer to 300, with as many as 50 more at risk.  The situation is particularly bad in western New York. The Town of Eden, south of Buffalo, has already been forced to take over seven cemeteries, and at nearly $2,500 an acre annually, the costs are piling up.

The increased appropriation for the abandonment fund is clearly a positive development for towns burdened with abandoned cemeteries.  However, with money already running out, it may only be a matter of time before the situation once again becomes dire. 


Court Orders Fraudulent Pet Cemetery To Pay Restitution

In March 2018, the New York State Attorney General's Office began investigating Abbingdon Hill Pet Cemetery after receiving complaints about poor conditions. The investigation revealed Abbingdon was operating without a license and defrauding its customers.  In May, the Supreme Court, Orange County ordered that the cemetery be dissolved and reformed as a not-for-profit, and further pay restitution to the aggrieve pet owners.  

Abbingdon Hill, a for-profit pet cemetery formed in 1980, was one of the largest pet cemeteries in the state. In 2016, the land was seized and auctioned by Orange County for the owner's failure to pay taxes.  However, the cemetery's previous owner continued to collect fees from customers, and continued to conduct burials and cremations even after the cemetery's license was revoked in 2017.  This led the Attorney General's office to seek a court order to freeze operations, the cemetery's assets, and seize copies of all financial records and property.  

The suit resolved with an order directing the judicial dissolution of the cemetery, and the formation of a new not-for-profit corporation to take possession and operate the cemetery.  The Court also ordered restitution be paid to the pet owners, as well as civil penalties to the State.


Guest Blog: Grief and Dignity: Honoring a Terminally Ill Loved One

*This article was written by Lucille Rosetti.  Rosetti runs thebereaved.org and will publish a book on the grieving process later this year.*

Photo courtesy of Pexels

Watching a much-loved older family member gradually decline is always a painful experience. It’s especially difficult when it becomes clear their condition is terminal. A complex emotional response kicks in, and loved ones begin to experience anticipatory grief, a common reaction that occurs prior to an impending loss. Family members may grieve for months, or even years, depending on the longevity and nature of their relative’s illness. Individuals may experience guilt from having, on some level, accepted that a loved one is beyond any hope of recovery. Other emotional symptoms may include anger, depression, or fear.

It’s important to understand that anticipatory grief is natural and that there are healthy ways to cope with it. One excellent strategy is to honor your loved one’s life while they’re still with you. According to HomeAdvisor, “After all, that’s what it’s all about: caring for your loved one and treating him or her as you would want to be treated. As long as we show kindness and compassion to our loved ones throughout the process, they will be able to say goodbye with the dignity they deserve.”

Using the time left

Think about how you and your loved one can best spend your remaining time together. Do what you can to make the time as meaningful as possible. Some people may want to reminisce about the past as a way of preparing themselves mentally and emotionally for death. Encourage such an exchange as a very personal way of honoring your relative’s life and their recollections of it. It’s a loving and personal form of emotional sharing under trying circumstances. If your relative prefers to deal with practical matters, such as directives concerning their estate or details about the celebration of their life, do what you can to help and be a considerate listener.

Communicate openly

Preserving a terminally ill relative’s dignity is important as the end of their life nears. As you spend time together, communicate openly and don’t shy away from discussing things that he or she wishes to talk about. They may need someone to talk to, a confidant whom they trust and love and someone they can share thoughts and feelings they might not be comfortable sharing with someone else. Consider it an honor and take advantage of the opportunity to engage in emotional sharing. Remember, you don’t have to drive the conversation. You can take their lead, but don’t deny their feelings or try to change the subject because you feel uncomfortable.

Show respect

Respect your relative by adhering to their wishes. Never assume that your loved one’s condition means they’re incapable of making decisions. Some final arrangements may still need to be made. Remember, they’re not your decisions to make unless your relative has specifically asked you to make them. Honoring a loved one means respecting their wishes to the very end, not taking over because you’ve decided you know best or because you’ve arbitrarily decided to remove the burden of decision-making from them. There are some things they need to handle, as long as they’re physically and mentally able to do so.

Keep the peace

Another way of honoring your relative is to maintain the peace and dignity of their environment. The last thing you want to do is contribute to fear or confusion at this time. Leave all disputes and disagreements for another time, to be worked out somewhere else. Your loved one’s space should be treated with honor, and everything should be done to maintain peace and quiet.

Make sure everyone understands the importance of maintaining a loved one’s dignity as death nears. Treat them the way you’d want to be treated. And remember, it’s all about honoring their life, as you cope with grief and the anticipation of death.


Preparation Is Key In Handling Sexual Harassment Allegations

Sexual misconduct in the workplace has dominated recent headlines, so much that the "Silence Breakers" have been named Time Magazine Person of the Year. As a result, many businesses and organizations are now grappling with how to best address and prevent harassment in the workplace.  Here are a few tips for your cemetery:

  1. Have A Written Policy. The single most important step a cemetery can take. By clearly defining what constitutes inappropriate conduct, employees are put on notice about appropriate behavior. The policy should detail how employees can make claims, how the cemetery will investigate such claims, and potential disciplinary action. This will dictate how the cemetery responds when an allegation is made, and help insulate it from liability.

  2. Talk To Your Employees. A written policy must be disseminated to employees, and they must understand its contents. While formal training sessions may not be practical for smaller cemeteries, a staff meeting to go over the policy should be held at least once a year. Employees should also be required to sign an acknowledgement that they read and understood the policy. 

  3. Be Evenhanded. A written policy is only as effective as its implementation. Once adopted, the policy must be consistently applied to all employees. If an allegation of misconduct is made, it should be investigated without deference to the identity or position of the parties. By the same token, disciplinary action should be consistent with the policy and the severity of the violation. 

Finally, it is important to remember that harassment in the workplace can take many forms. As such, it may be prudent to address other forms of harassment, such as harassment based on race, religion, age, etc.


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.



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