Relatives Are Denied Standing to Sue for Burial Plot Care

, New York Law Journal

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Bayside Cemetery in Ozone Park, Queens
Bayside Cemetery in Ozone Park, Queens

Family members of those buried in a Queens cemetery lack standing to sue a synagogue to enforce a trust established for the perpetual care of lots there, but a man who paid for the care of three plots can pursue a breach of contract claim, a unanimous Manhattan appellate court has ruled.

"Allowing relatives to bring lawsuits as to each lot, plot or grave could create endless litigation, substantially depleting the trust assets," Justice David Saxe (See Profile) of the Appellate Division, First Department, wrote in Lucker v. Bayside Cemetery, 10245. "Enforcement of the subject charitable trusts is therefore best left to the attorney general, so as not to expose the trust funds to money-draining multiple lawsuits, and to avoid setting a precedent of allowing a broad, vague beneficiary base to commence multiple actions against a charitable trust."

In the case of the family members, their grandparents and parents had entered into perpetual-care agreements, but the plaintiffs themselves had never donated to the trust fund. However, the panel said a separate suit brought by a man who himself paid $1,200 for the care of grave sites for his mother and other relatives could proceed.

Saxe wrote that "while [Steven] Leventhal is not entitled to the return of his payment as damages for the alleged breach of the trust terms, as the donor of the trust fund, he has sufficient standing to sue to enforce the trust, that is, to obtain an order requiring the trustee to satisfy its obligations."

Though the lower court said Leventhal could proceed with both a breach of contract and breach of fiduciary duty claim, Saxe modified the ruling to let only the contract-breach claim survive.

Justices John Sweeny Jr. (See Profile), Karla Moskowitz (See Profile), Judith Gische (See Profile) and Darcel Clark (See Profile) joined in Saxe's opinion. The case was argued on May 9.

At issue in Tuesday's decision is the upkeep of Bayside Cemetery, a 149-year-old Jewish burial ground in Queens with about 34,000 graves.

Congregation Shaare Zedek, which is located in Manhattan, owns the 14-acre site. Over the years, the congregation sold the exclusive right to bury in sections of the site to various burial societies that are now defunct.

After a federal action was dismissed for lack of jurisdiction, five individuals sued Shaare Zedek and the cemetery in state court in 2009, complaining that the perpetual care their ancestors had paid for was not being provided and their graves now were inaccessible due to overgrowth.

"While headstones at Bayside Cemetery read 'Gone but not forgotten,' defendants have all but forgotten the cemetery and refuse to honor perpetual care or annual care contracts which were entered into in accordance with New York and Jewish law," the families' complaint says. "As a result, Bayside Cemetery has for years been allowed to fall into and remain in deplorable condition."

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