Opinion
20825/2015E
03-01-2021
Ellen FINLEY, Plaintiff, v. CHURCH OF SAINT RAYMOND, a Non-Profit Corporation, and Saint Raymond's Cemetery, a Non-Profit Corporation, Defendants.
Attorneys for Plaintiff: Robert Di Gianni, Jr., Esq., 159 20th Street, Suite 1B-20, Brooklyn, NY 11232, (718) 245-6980, rjd@digiannilaw.com, David Charlip, B.C.S., Charlip Law Group, LC, 11900 Biscayne Blvd., Suite 200, North Miami, FL 33181, (305) 354-9313, dcharlip@charliplawgroup.com Attorney for Defendants: Christine McGuire, Esq., Wingate, Kearney, & Cullen LLP, 45 Main Street, Suite 1020, Brooklyn, NY 11201, (718) 852-5900, cmcguire@wkclaw.com
Attorneys for Plaintiff: Robert Di Gianni, Jr., Esq., 159 20th Street, Suite 1B-20, Brooklyn, NY 11232, (718) 245-6980, rjd@digiannilaw.com, David Charlip, B.C.S., Charlip Law Group, LC, 11900 Biscayne Blvd., Suite 200, North Miami, FL 33181, (305) 354-9313, dcharlip@charliplawgroup.com
Attorney for Defendants: Christine McGuire, Esq., Wingate, Kearney, & Cullen LLP, 45 Main Street, Suite 1020, Brooklyn, NY 11201, (718) 852-5900, cmcguire@wkclaw.com
Theresa M. Ciccotto, J.
RECITATION, AS REQUIRED BY CPLR§ 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION.
PAPERSNUMBERED
NOTICE OF MOTION AND AFFIDAVITS ANNEXED 1-2.
ANSWERING AFFIDAVITS
REPLY AFFIDAVITS 9
OTHER Cross-Motion, Memos of Law 3-4, 5-6, 7-8.
UPON THE FOREGOING CITED PAPERS, THE COURT FINDS AS FOLLOWS:
Defendants’ move for an Order granting summary judgment pursuant to CPLR § 3212, or in the alternative, for an Order pursuant to CPLR § 3025, granting them leave to amend their Answer. Plaintiff, via a Cross-Motion, moves for "economic damages as well as non-economic compensation for severe emotional and psychological injuries sustained by [her] due to St. Raymonds's breach of its contract with [her], causing [her] damage by its negligence and negligent infliction of emotional distress and by its actions amounting to equitable estoppel by wrongfully allowing Francis Leahy ("Francis" or "Frank") to be buried in the last remaining space, Grave 2, Space "C" of a family burial plot, the only remaining burial space that was designated and reserved for [her], without [her] knowledge or consent" (Aff. in Opp., pp.1-2, ¶¶ 1-2).
After a review of the papers presented, all relevant statutes and case law, the Court grants Defendants’ motion for summary judgment and denies Plaintiff's Cross-Motion.
Procedural background :
In this action, Plaintiff's claims include breach of contract, negligence, negligent infliction of emotional distress and equitable estoppel. Plaintiff filed her Complaint on February 11, 2015 and amended same on April 1, 2016. Defendants’ filed their Answer to Plaintiff's Amended Complaint on June 2, 2016. On November 9, 2017, Plaintiff served a motion for summary judgment, and on February 8, 2018, Defendants’ served a Cross-Motion for summary judgment. On October 3, 2018, a previous court denied both motions, without prejudice, until discovery was concluded and a Note of Issue was filed. The Note of Issue was filed on August 9, 2018.
Factual background :
This case has a long and tortuous history. Extensive discovery, extensive motion practice and various depositions have previously been conducted. However, it is undisputed that in 1947, Plaintiff's father-in-law, Patrick Finley, purchased a burial plot (the "Plot"), which contained six grave spaces in Defendant Cemetery (Cemetery). His wife, Margaret, passed away that year. She is buried in said Plot, grave 1-A. The Finleys’ had four children. However, for purposes of this action, only three are considered, (Catherine, Peter and Ann). Patrick Finley was always deemed the owner of said Plot. He did not designate the plot spaces to any specific individuals.
According to Defendants, under Article 2, Section 8 of the Religious Corporations Law ("RCL"), said grave spaces were to be distributed to Patrick Finley's heirs until the spaces were filled, with each heir holding equal rights in common. Additionally, pursuant to the RCL, spouses of designated heirs are permitted to be buried alongside their spouses. Despite the fact that the RCL permits a spouse to release his/her space in a lot, it provides that "no conveyance or devise by any other person shall deprive" the spouse of the space in the lot. The Cemetery also asserts that it is their policy never to separate husbands and wives in the burial process. It is also their policy that plots are filled on a "first come, first serve basis to the heirs of the plot owner," meaning that whoever dies first will be buried in the plot, provided that there are available spaces (Defendants’ Exh. "D").
In 1953, Patrick Finley died and was subsequently buried in grave 2-A, in the subject Plot. Following the deaths of Patrick and Margaret, four burial spaces remained. The surviving children who each had an interest in the subject Plot, were Anne Finley, who was unmarried and had no children, Peter Finley, who was married to Plaintiff, and Catherine Finley, who was married to Francis Leahy. Upon Catherine's death in 2006, she was buried in grave 1-B.
Plaintiff asserts that in 2006, when Catherine passed away, Plaintiff called the Cemetery in an effort to determine if there was any way to prevent Frank Leahy from also being buried in the Plot alongside his wife, Catherine. She explains that this call was made because her sister-in-law, Anne Finley had adamantly maintained that she "didn't want Frank in the grave." The Cemetery asserts that Plaintiff "understood that Frank [Leahy] had a right, equal to hers, to be buried in the Plot alongside his spouse" (Motion, p. 3, ¶16). During the course of this action, Plaintiff has always asserted that she had spoken with an employee at the Cemetery, "Mickey," whom she asked for advice concerning what to do if you don't want someone buried in that grave. Plaintiff also asserts that "Mickey" advised her of the existence of "an affidavit for burial rights." Plaintiff testified that upon learning of this Affidavit, she spoke with Peter and Ann, who had decided that they wanted to also be buried in the subject Plot, thus filling the remaining spaces. Frank Leahy was never involved in any discussion involving the decision to "cut him" out of his designated space in the Plot. Indeed, Plaintiff admitted during her deposition testimony that the prospect of cutting Frank Leahy out was certainly their intention. Plaintiff also testified that on October 24, 2006, the Cemetery faxed her an "Affidavit for Assigned Burial Space."
In 2011, both Ann and Peter passed away and were subsequently buried in graves 1-C and 2-B in the subject Plot. As such, with both parents, and three of the four children already buried in the Plot, only one available space remained. Interestingly, Plaintiff conceded during her deposition, that she understood that absent a proper Affidavit, she and Frank Leahy, as spouses of Peter and Catherine, both had an equal right to be buried in the remaining grave space. In 2013, Frank Leahy passed away, and was interred in the remaining grave space next to his wife Catherine, in accordance with his wishes. However, prior to Frank Leahy's death, an attorney contacted the Cemetery indicating that an Affidavit for the assigned burial space existed, which essentially voided Frank Leahy's right to be buried in the remaining plot. There is no further mention of this attorney in the submitted papers.
Plaintiff asserts that she filled out this Affidavit on October 24, 2006, and sent it to the Cemetery via hard copy and fax on October 27, 2006. Said affidavit was not noted in the Cemetery's file until December 2013, when the Cemetery received it from the attorney. The Cemetery asserts that its "[r]ecords from an entry dated December 24, 2013 state in a time line: ‘10/27/06 Affidavit for Assign burial Space on file’ " [sic] , (id. , p. 5, ¶31). Frank Mangual, the current Executive Director of the Cemetery, testified during his deposition, that he was merely creating a time line in the file, and "10/27/06" actually refers to the date on the affidavit, and not when it was entered into the Cemetery's records.
The Court notes that an affidavit of Frank Mangual was annexed to the "Affidavit In Support Of Defendants’ Motion For Summary Judgment." It states in pertinent part that:
"[I]t is the policy of the Cemetery to follow the statutory law. When there is a particular plot of grave spaces purchased by an individual, the spaces are filled on a first come first serve basis to the heirs of the plot owner. Anyone with rights to the plot may be interred therein at the time of their demise provided there are spaces remaining. To designate a grave space, there must be a signed, written affidavit from the owner of the plot, or if deceased, it must be inclusive of all individuals who have inherited rights therein, and it must be submitted to the Cemetery office with social security cards (or Medicare cards as a substitute) and picture identification (such as a license) to be accepted.
Plaintiff's reference to "Micky" refers to Marlene Perna, an office associate who is now retired and worked for Saint Raymond's Cemetery from 1999-2015. An office associate, such as Micky, merely provides a blank form affidavit of assignment which needs to be completed by the owner(s). She can provide general information but would not otherwise advise as to whether an affidavit is validly executed because she is not an attorney capable of advising on legal agreements. Nonetheless, our records indicate that we did not receive this defective affidavit until at least December 19th, 2013, after speaking with an attorney who must have provided such at that time.
The entry in the records from this date indicates that there was never an affidavit for burial spaces in the computer and the one received was never executed, (see Ex. "E" of the Affirmation) which is the defective affidavit. Generally, an affidavit is not entered into the system until it is signed. The defective affidavit was then provided to myself on December 23, 2013. Upon receipt, I spoke with the attorney handling Frank Leahy's estate who informed me of his wish to be buried with his wife. I noted in the records that the space is due to him as the spouse of Catherine Finley-Leahy and because he is the rightful heir to the grave space. No person signed the affidavit though it is notarized....... there is no indication that Ellen Finley reached out to Micky over the course of seven years on multiple occasions. Not even once is there a notation of such. In fact, our records indicate that the first time she contacted the Cemetery was on January 16th, 2014...... Even if there were representations made over this seven year period as claimed, they would have been made under Plaintiff's misleading failure to mention Frank Leahy's existence and his rights would still prevent the affidavit from being enforceable........"
According to Plaintiff, under the RCL, when a burial plot containing multiple grave spaces is purchased, the lot owner may designate the spots or in the absence of any written designation by the owner, the spaces will be made available to the lot owner's heirs as determined by Article 2, Section 8. She argues that there are no heirs to the plots besides the children that would have equal rights to same. As such, a spouse would not be considered a bloodline heir to the plot and one spouse would not have any greater right than another spouse to be buried in the plot. It should be noted that Plaintiff supports this argument with specific components of the deposition testimony of Frank Mangual.
John Finley, Patrick and Margaret Finley's fourth child, passed away on January 17, 2013, when there was still one space remaining. Plaintiff asserts that "[t]here was never any suggestion of John going in that spot. He had made arrangements to be buried with his wife on Long Island" (Opp., p. 3, ¶16). Thus, with three alleged spaces remaining and John not wanting to be buried in the subject Plot, Plaintiff asserts that it was her understanding that Peter and Ann were actually the rightful heirs to these spaces. The Court notes that there is no independent proof of John's alleged desire to be buried on Long Island. The issue with demanding that Frank Leahy be denied burial in the Plot emanates from a familial dispute. It is alleged that Frank Leahy retained his wife Catherine's pension funds which she intended to be used for her sister Ann's required nursing home care. When this did not occur, Ann was adamant about not being buried with "that thief." This family rancor is what seems to be the driving force behind Plaintiff's insistence on continuing with this futile litigation.
Plaintiff asserts that when Mickey informed her that cemetery spaces could be reserved, she and Pete changed their testamentary plans after deciding to be buried in the Finley plot because it was their intention to cut Frank Leahy out. She adamantly contends that Mickey informed her that the affidavit she submitted was legally binding. It is undisputed that Mickey is not an attorney.
The subject Affidavit is a document which has "St. Raymond's Cemetery" printed on top. Underneath, it states: "AFFIDAVIT FOR ASSIGNED BURIAL SPACE." Next to the phrase, "Section 16, Range 20, Plat. 26, Grave 1+2." It states:
"I, PATRICK FINLEY-DECEASED , said deed owner for the Grave/Crypt/Niche at St. Raymond's Cemetery indicated above, hereby assign the above grave/crypt/niche spaces to the following individuals named below:
(please print names); Space A Ann Finley
Space B Peter Finley
Space C Ellen Finley
I fully understand that upon issuing this signed affidavit to the cemetery any other subsequent changes to the list above would have to be made via a new affidavit.
Printed Name of Owner PATRICK FINLEY-DECEASED. "
The Court notes that it was notarized by Marianne Jordan, on October 27, 2006. Ms. Jordan is a notary public in New Jersey. Respondents allege that she is a personal friend of Plaintiff, which would not surprise the Court. The Court also notes that Plaintiff printed the names of the Finley family on said Affidavit.
Positions of the parties :
Defendants’ argue that Plaintiff is not entitled to a finding of summary judgment as to liability for breach of contract because the record reflects that no valid and enforceable agreement exists. Moreover, they argue that Plaintiff's argument that the Affidavit is a "unilateral contract," fails because of her non-performance. In addition to attempting to have an illegal contract enforced, they argue that Plaintiff cannot establish that any damages actually emanated from the purported breach.
Defendants’ also argue that the Affidavit is invalid because it is not duly executed and does not bear the signatures of any affiants. Their invalidity claim is further buttressed by Plaintiff's own admission that neither she, Peter or Ann signed said document. Defendants’ also argue that the Affidavit is defective because it does not include any reference to Frank Leahy, a necessary party under the law. Defendants’ also argue that Plaintiff's is not entitled to summary judgment as to her claim of negligent infliction of emotional distress claim, because the record is devoid of any evidence of a fear for her personal safety, or any evidence of her experiencing extreme and outrageous conduct.
Defendants further argue that Plaintiff's negligence claim also fails because there is no sufficient evidence to prove that Defendants’ owed her any duty, let alone breached a duty. Defendants’ argue that Plaintiff's argument that Defendants’ breached their duty to her by not complying with the Not-for-Profit Corporations Law is misplaced. They argue that the Cemetery is governed by the Religious Corporations Law.
Defendants’ also argue that they did not breach a duty to Plaintiff by misleading her for seven years, or misleading Peter and Ann for five years until their respective deaths. They argue that Plaintiff's allegations of all the alleged "frequent phone calls" she made or the purported conversations she had with Cemetery's employees cannot be proven. Additionally, her argument that her actions should be excused because she lacked knowledge of the law also fails because the law does not accept ignorance of the law as a valid excuse. Defendants also argue that Plaintiff's claim of justifiable reliance also fails because, once again, there is no documentary evidence to confirm that her communications with the Cemetery occurred.
Lastly, Defendants’ argue that Plaintiff's equitable estoppel claim is legally deficient in that she has failed to proffer sufficient evidence to raise a triable issue of fact that the Cemetery received the Affidavit in 2006 and thus, assured her of its validity.
In her Cross-Motion, Plaintiff argues that she is entitled to summary judgment on the issue of breach of contract. She argues that "when St. Raymond's presented the affidavit to [her], Ann and Peter, an offer to assign the remaining burial spots was effectuated. Similarly, when [she], Peter and Ann filled out the affidavit on October 27, 2006 in the presence of a notary and pursuant to the instructions given by St. Raymonds, they each manifested assent to the terms and therefore, accepted the offer. As a result, a contract was formed.... [w]hen the burial space was given away to Francis, St. Raymond's breached that contract" (Cross-Motion, p. 18, ¶86).
Plaintiff also argues that Defendants did not exercise good faith and fair dealing because over a seven year span, she was repeatedly assured by Cemetery employees that the Affidavit was binding and thus, no other individual could or would be buried in "her" space. Additionally, she argues that because Mickey offered her the option to assign the spaces by way of said Affidavit, and failed to inform her of the Cemetery's policy to never allow deed assignments of burial spaces by anyone other than the original deed owner, she was "misled" into believing that said Affidavit would be honored.
Lastly, Plaintiff argues that "Defendants’ Response to Plaintiff's Cross-Motion for Summary Judgment, fails to properly and squarely address the fundamental difference between how both the Plaintiff and the Defendant are interpreting Article 2, Section 8 of the Religious Corporations Law, which governs lot owners’ rights" (Memo of Law, p.1, ¶1). Plaintiff also argues that Defendants’ interpretation is contrary to the language of this statute. She refers to and relies on several components of the aforementioned statute. Namely, that "[t]he widow shall have the right of internment, for her own body in such lot, or in a tomb in such lot and a right to have her body remain permanently interred or entombed therein" ..... and "[T]he widow may at any time release her right in such lot, but no conveyance or devise by any other person shall deprive her of such right."
Plaintiff argues that Defendants’ interpretation that Frank Leahy had a right to burial in the Plot alongside his spouse Catherine, and as per the Religious Corporations Law, no conveyance or devise by any other person deprives him of that right, is incorrect. She asserts that the quoted statutory language refers to the "proprietor of each lot," which is Patrick Finley, and the widow referred to is the proprietor's wife, Margaret Finley. It is only the widow that the statute states "shall have the right of interment, for her own body in such lot" and that "no conveyance or devise by any other person shall deprive her of such right." Plaintiff argues that upon Margaret's passing, the siblings would at that point have the right to "designate in writing to the religious corporation which of them shall represent the lot....." Thus, she claims that this is exactly what Peter and Ann sought to do when they requested that she contact the Cemetery to inquire whether the remaining plots could be designated by all three of them.
Plaintiff further argues that Defendants’ focus is entirely the opposite of what is required by law. She argues that Defendants’ erroneously focus on Frank Leahy's supposed "rights," when their focus should be on the remaining siblings, Peter and Ann, who had a legitimate interest in the Plot graves. Additionally, she argues that Defendants’ only goal is to criticize her attempt to utilize Defendants’ own Affidavit form to effectuate the designation sought to be accomplished by Peter and Ann, when their focus should be on the fact that their policy and procedure with respect to the right to designate burial spots violated the Religious Corporation Law.
Conclusions of law :
"The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law" ( Dallas-Stephenson v. Waisman , 39 AD3d 303, 306, 833 N.Y.S.2d 89 [1st Dept. 2007], citing Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ; Alvarez v. Prospect Hosp. , 68 NY2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). Once the proponent has proffered evidence establishing a prima facie showing, the burden then shifts to the opposing party to present evidence in admissible form raising a triable issue of material fact (see Zuckerman v. City of New York , 49 NY2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ; Friends of Animals v. Associated Fur Mfrs. , 46 NY2d 1065, 1067, 416 N.Y.S.2d 790, 390 N.E.2d 298 [1979] ). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat a summary judgment motion ( Zuckerman , 49 NY2d at 562 ). If there is any doubt as to the existence of a triable issue of fact, summary judgment must be denied (see Rotuba Extruders v. Ceppos , 46 NY2d 223, 413 N.Y.S.2d 141, 385 N.E.2d 1068 [1978] ).
The essential elements of a breach of contract claim are "the existence of a contract, the plaintiff's performance pursuant to that contract, the defendants’ breach of their [contractual] obligations," and damages resulting from the breach ( Elisa Dreier Reporting Corp. v. Global NAPs Networks, Inc. , 84 AD3d 122, 127, 921 N.Y.S.2d 329 [2d Dept. 2011] ; see Dee v. Rakower , 112 AD3d 204, 976 N.Y.S.2d 470 [2d Dept. 2013] ; Furia v. Furia , 116 AD2d 694, 498 N.Y.S.2d 12 [2d Dept. 1986] ; VisionChina Media, Inc., v. Shareholder Representative Servs., LLC , 109 AD3d 49, 967 N.Y.S.3d 338 [1st Dept. 2013] ). A contract should be "read as a whole" and "interpreted as to give effect to its general purpose" ( Insurance Corp. of NY v. Central Mut. Ins. Co. , 47 AD3d 469, 471, 850 N.Y.S.2d 56 [1st Dept. 2008], quoting Empire Props. Corp. v. Manufacturers Trust Co. , 288 NY 242, 248, 43 N.E.2d 25 [1942] ). The language must indicate "a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms" ( Matter of Express Indus. & Term Corp. v. New York State Dept. of Transp. , 93 NY2d 584, 589, 693 N.Y.S.2d 857, 715 N.E.2d 1050 [1999] ).
In the case at bar, the Court has not been presented with any document which can be classified as a legitimate contract. As such, it is axiomatic that there can be no breach. The Court agrees with Defendants that the Affidavit in question does not pass legal muster, as it does not bear any signatures, most significantly, those of Plaintiff, Peter, Ann, and Frank Leahy. Indeed, Plaintiff concedes that not one of them signed the Affidavit, and as far as this Court knows, the dead are unable to sign any document. Additionally, the Court finds the notarization of same to be improper, because the notary obviously did not witness anyone sign said document and did not obviously witness the deceased's printing of his name.
The Court finds Plaintiff's claim that there was a violation of the "implied" covenant of good faith and fair dealing to be unavailing. This claim fails because it is well settled that the covenant of good faith and fair dealing is implied in every contract (see P.T. & L. Contracting Corp. v. Trataros Constr., Inc. , 29 AD3d 763, 816 N.Y.S.2d 508 [2d Dept. 2006] ; Mount Sinai Hosp. v. 1998 Alexander Karten Annuity Trust , 110 AD3d 288, 970 N.Y.S.2d 533 [1st Dept. 2013] ). Indeed, this claim fails due to the Court's determination that no valid contract exists here.
It is well established that to prove the claim of negligence, a plaintiff is required to show (1) the existence of a legal duty on a defendant's part to the plaintiff; (2) a breach of this duty; and (3) injuries to plaintiff proximately related to the breach (see Siegel v. Hofstra Univ. , 154 AD2d 449, 545 N.Y.S.2d 935 [2d Dept. 1989] ; All Am. Moving & Stor., Inc. v. Andrews , 31 Misc 3d 1214(A), 927 N.Y.S.2d 814, 2011 WL 1466875 (NY Sup.), 2011 NY Slip Op. 50668(U) (Sup. Ct., Bronx County, 2011).
In this case, Plaintiff has failed to show with any semblance of certainty, that the Cemetery owed her a legal duty. Indeed, any alleged injury emanating from an invalid contract has no basis in fact or law.
A cause of action to recover damages for negligent infliction of emotion distress does not require a showing of physical injury, but "must generally be premised upon a breach of a duty owed directly to the plaintiff which either unreasonably endangers a plaintiff's physical safety or causes the plaintiff to fear for his or own safety" ( E.B. v. Liberation Publs. , 7 AD3d 566, 567, 777 N.Y.S.2d 133 [2d Dept. 2004] ; Hecht v. Kaplan , 221 AD2d 100, 105, 645 N.Y.S.2d 51 [2d Dept. 1996] ; Matter of Shondel J. v. Mark D. , 7 NY3d 320, 325, 820 N.Y.S.2d 199, 853 N.E.2d 610 [2006] ). Such a claim must fail where, "no allegations of negligence appear in the pleadings" ( Russo v. Iacono , 73 AD2d 913, 913, 423 N.Y.S.2d 253 [2d Dept. 1980] ).
In the instant case, the Court finds that Plaintiff proffered absolutely no documentary evidence which would prove that some action(s) manifested by the Cemetery endangered her physical safety. This claim is not only devoid of any merit, it is patently ridiculous.
The purpose of equitable estoppel is to preclude a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right was asserted. The law imposes the doctrine as a matter fairness. Its purpose is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party's actions, has been misled into a detrimental change of position (see generally Nassau Trust Co. v. Montrose Concrete Prods. Corp. , 56 NY2d 175, 184, 451 N.Y.S.2d 663, 436 N.E.2d 1265 [1982] ; Matter of Shondel J. v. Mark D. , 7 NY3d 320, 327, 853 N.E.2d 610 [2006] ).
Plaintiff vehemently argues that "[she], Ann and Peter all justifiably relied on St. Raymond's representations by way of assurances over a seven (7) year period of time and notarized Affidavit stating that Ellen, Ann and Peter will be buried together in the cemetery" (Aff. In Support of Cross Motion. , p. 28, ¶109). "[She] was not versed on the subject of mortuary law or St. Raymond's policies...." "The above referenced, yearly assurances detrimentally changed [her] position because prior to Ann and Peter's deaths, [she], Ann and Peter could have potentially, for example, comingled their monies to purchase a different burial plot, having [her], Ann and Peter together in the cemetery. Instead, now [she] is faced with the prospect of paying the bills for: (1) herself, her late husband and late sister-in-law's burial spaces; (2) transporting the remains of her husband and sister-in-law to a new cemetery; (3) placement of monuments; (4) opening and closing of graves spaces; (5) and attorney's fees that may be necessary for proceedings to request the court to approve disinterment of Peter's and Ann's remains" (id. , p. 28, ¶110).
The Court, once again, finds that Plaintiff has failed to submit any documentary proof of her alleged extended correspondence with the Cemetery's employee(s). Plaintiff expects that her allegations, sans any physical proof, is sufficient to support this claim. Frankly, the Court cannot comprehend how she can possibly infer that the subject Affidavit itself gave her any indication whatsoever, that she, Peter and Ann would be buried together.
The Court also rejects Plaintiff's argument that her ignorance of "Mortuary Law," should be considered in her favor. Indeed, it is well settled that ignorance of the law is not a defense to complying with legal obligations (see Fox v. 12 East 88th LLC, 160 AD3d 401, 74 N.Y.S.3d 29 [1st Dept. 2018] ; 230 East 48th Street LLC v. Campisi , 59 Misc 3d 148(A), 108 N.Y.S.3d 648, 2018 NY Slip Op. 50798(U) (App. Term 1st Dept. 2018) ; Stauber v. Antelo , 163 AD2d 246, 558 N.Y.S.2d 67 [1st Dept. 1990] ).
The Court rejects Plaintiff's argument that the Cemetery is governed by Section 1512 of the Not-for-Profit Corporations Law, and not Section 8 of the Religious Corporations Law. Indeed, the Court finds that the Cemetery is incorporated under the Religious Corporations Law.
Article 2, Section 8 of the Religious Corporations Law governs a lot owner's rights. It provides in pertinent part:
"Lots in such cemeteries shall be held indivisible, and upon the decease of a proprietor of such lot the title thereto shall descend to his heirs-at-law or devisees, subject, however, to the following limitations and conditions...... If he leaves children and no widow, they, or the survivor of them, shall in common have the possession, care and control of such lot during the life of the survivor of them" (emphasis added).
This statute also provides that, "[A]t any time when more than one person is entitled to possession, care or control of such lot" the co-owners shall designate a representative to the religious corporation which owns the cemetery. Where co-owners fail to designate a representative in writing, as in this case, the religious corporation assumes the responsibility and shall designate someone "to represent the lot." However, there is nothing in the statute which gives the person so designated any greater rights of possession, care or control than his or her co-owners (see Bergman v. Feinberg , 6 AD3d 1031, 776 N.Y.S.2d 611 [3d Dept. 2004] ).
It is quite clear that Frank Leahy, as the "survivor" of Catherine, had a legal right to be buried in this Plot. Indeed, all this senseless litigation occurred simply because Peter and Ann disliked Frank Leahy, and he happened to pre-decease Plaintiff. The Court strongly suggests that Plaintiff get on with her life and let the dead rest in peace.
Therefore, in accordance with the foregoing, it is hereby:
ORDERED, that Defendants’ Motion for summary judgment is granted; and it is further
ORDERED, that Plaintiff's Cross-Motion is denied.
This constitutes the decision and order of the Court.