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January 17, 1991


The opinion of the court was delivered by: Weinstein, District Judge:


A motion has been made to dismiss a complaint seeking a declaration that key portions of the New York law regulating cemeteries is unconstitutional. For the reasons indicated below, the case must be dismissed.

Warschauer Sick Support Society ("Warschauer") was one of the many fraternal organizations created in New York and elsewhere in the late nineteenth and early twentieth centuries. During that period, many Jewish immigrants formed mutual-aid societies to ease the transition into American life. Known as Landsmanshaftn (alternatively spelled Landsmannshaften or Landsmanshaften), they provided aid to the sick, funds for burial, a place to meet socially and sometimes to worship, money to bring family members to the United States and other social and cultural benefits. See, e.g., M. Weisser, A Brotherhood of Memory: Jewish Landsmanshaftn in the New World 13, 22, 163-73, 219-21 (1985) (first of the cemeteries used extensively by these groups was the Washington Cemetery in Brooklyn, established in 1850); W. Mitchell, Mishpokhe: A Study of New York City Jewish Family Clubs, 175-76 (1978).

Landsmanshaftn reached their peak in New York in the 1950s, then numbering close to 6,000. Over time, however, as families began to flourish, the immigrants died and their children assimilated into American life, membership in the Landsmanshaftn declined. Today, some of these once prosperous organizations are close to insolvency; many have been legally dissolved or have ceased to operate.

Some Landsmanshaftn and other organizations provide free burial to those unable to afford it. See Hebrew Free Burial Association, 1 Chesed 3 (1990, Nissan 5750) (member of the New York Federation of Jewish Philanthropies) (appeal for donation of unused burial plots for the poor). Jews regard dignified burial performed according to traditional ritual as a basic right to be performed for all. See 4 Encyclopedia Judaica (Burial) 1515 (1978); Standard Jewish Encyclopedia, (Burials and Burial Societies) 375 (rev. ed. 1966).

Warschauer purchased large tracts of grave sites at very little cost in anticipation of the burial needs of its members. With declining membership it attempted to divest itself of surplus grave sites by first "donating" them to the Beth David Cemetery, and now by sale at their market value.

New York law requires that before a cemetery plot may be sold on the open market, it must first be offered to the cemetery at the original purchase price plus 4% interest. See N.Y. Not-For-Profit Corp. Law § 1513(c). This statutory price constitutes but a small fraction of present market value.

Cemetery Board Directive 202.13 requires a cemetery to give written notice to the Division of Cemeteries and to the Insurance Department's Liquidation Bureau of an offer by a Fraternal Benefit Society to sell back graves to the cemetery. The cemetery cannot repurchase graves without the consent of the State Cemetery Board. Because fraternal societies that provide either funeral or cemetery benefits are subject to regulation by the State Insurance Department, the Cemetery Board may not approve a buy-back of graves unless the Insurance Department consents. After being informed of Warschauer's intentions, the Insurance Department suggested that the organization be liquidated. See N.Y.Ins.Law § 7417.

Warschauer, appearing pro se through Mr. Sperman, brought this action against the State of New York and others challenging the constitutionality of the applicable state statutes. It asserts that section 1513(c) of the Not-For-Profit Corporation Law is an unconstitutional taking and is applied in a manner inconsistent with the first amendment of the United States Constitution. Warschauer also seeks to enjoin the New York State Insurance Commissioner from commencing liquidation proceedings against it.

The State moved to dismiss the complaint. Defendant's motion was denied with leave to renew. Warschauer was granted permission to proceed pro se through Mr. Sperman, but legal representation for Warschauer was directed to be sought by the Clerk of the court from our pro bono panel.

After several members of the pro bono panel refused to take the case, the court requested a distinguished member of the bar to undertake pro bono representation of plaintiff. The attorney was fully capable of representing Warschauer in federal court, in state administrative proceedings or in attempts to obtain corrective legislation. He consulted with Mr. Sperman and determined that he could not represent Warschauer, given the relief that Mr. Sperman insisted upon.

At a subsequent hearing in this court, Mr. Sperman persisted in his demand that Warschauer be allowed to sell its cemetery plots at market price. He refused to consider an amendment to the statute or forms of judicial or administrative relief, by analogy to the cy-pres doctrine, which would allow Warschauer to transfer the graves to the use of an organization that provided free or low cost burial for needy Jews.

The essence of the taking claim is that Section 1513(c) prohibits a plot owner from selling unless the plot is offered first to the cemetery at the original purchase price, plus simple interest at 4%. The statute, it is contended, is confiscatory because the price of ...

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