John R. Lucker, et al., Plaintiffs-Appellants,
Bayside Cemetery, et al., Defendants-Respondents, Community Association for Jewish At-Risk Cemeteries, Inc., Defendant. Steven R. Leventhal, etc., Plaintiff-Appellant-Respondent,
Bayside Cemetery, et al., Defendants-Respondents-Appellants, Community Association for Jewish At-Risk Cemeteries, Inc., Defendant.
Cross appeals from the order of the Supreme Court, New York County (Debra A. James, J.), entered on or about October 6, 2011, which granted defendants Bayside Cemetery and Congregation Shaare Zedek's motion to dismiss the Lucker complaint, and order, same court and Justice, entered on or about January 12, 2012, which, to the extent appealed from as limited by the briefs, granted so much of defendants Bayside Cemetery and Congregation Shaare Zedek's motion as sought to dismiss the conversion and General Business Law §§ 349 and 350 causes of action in the Levanthal complaint, and denied so much of the motion as sought to dismiss the breach of contract and breach of fiduciary duty causes of action.
Pomerantz Grossman Hufford Dahlstrom & Gross LLP, New York (Michael M. Buchman of counsel), for appellants and appellant- respondent.
Axinn Veltrop & Harkrider LLP, New York (Russell M. Steinthal and Stephen M. Axinn of counsel), for respondents/respondents-appellants.
John W. Sweeny, Jr., J.P., David B. Saxe, Karla Moskowitz Judith J. Gische Darcel D. Clark, JJ.
These companion appeals raise issues regarding the enforcement of perpetual care obligations when cemeteries fall into disrepair. The cemetery in question, the Bayside Cemetery, located on Pitkin Avenue in Ozone Park, Queens, is owned and operated by defendant Congregation Shaare Zedek, a religious corporation . Both actions are putative class actions in which their class status is not currently at issue.
The named plaintiffs in the Lucker action are five individuals whose relatives are buried in Bayside Cemetery. John Lucker, Elizabeth Lucker and Nancy L. Rousseau allege that their grandparents' graves at Bayside Cemetery are inaccessible due to overgrowth, despite their grandparents' purchase, in or about 1973, of a perpetual care agreement from defendants through a religious society of which they were members, the Chebra Shebath Achim Society. Lynn Cohen, who asserts that she served as the executor of her mother's estate, similarly alleges that her parents' graves at Bayside Cemetery have not been cared for although her "family member(s), including her parents, entered into one or more perpetual care contract[s]" with defendants. Fran Goldstein alleges that her parents are buried in perpetual care plots at Bayside Cemetery, and that her "family member(s)/ relative(s) entered into one or more perpetual care contract(s) with a Defendant." These five individual plaintiffs purport to sue on behalf of the class consisting of family members and near relatives of individuals who purchased perpetual care from defendants.
The element of the Leventhal action that distinguishes it from the Lucker action is that named plaintiff Steven R. Leventhal was himself the purchaser of the perpetual care arrangement.
Specifically, Leventhal alleges that in 1985 he paid defendant Congregation Shaare Zedek $1, 200 for the perpetual care of three graves at Bayside Cemetery. The document that Leventhal was given in return for this payment, called a Trust Fund Receipt, identified the $1, 200 as the "Fund, " and identified the following uses and purposes of the "Fund":
"Pursuant to Section 92 of the Membership Corporation Law of New York, said sum shall be held as part of the Special Fund of the Congregation', maintained by it for the perpetual care of lots, plots or graves in Bayside Cemetery, and deposited by the Congregation' in its name in any State or Federal Savings Bank or Association paying interest thereon, or invested or re-invested by it for the purchase in its name of any Federal, State, Municipal or other Government certificates or bonds, or of other securities authorized by law for investment of Trust Funds.
"The interest or income realized from the Fund' shall be used toward the perpetual care and upkeep of the following lots, plots or graves:
1. Ethel Leventhal, etc.,
Benjamin Stoloff, etc.,
Emma Stoloff, etc.,
located in said Bayside Cemetery, limited, however  to the extent for which such interest or income derived therefrom will permit and pay, as provided for in Section 91 of the aforesaid Membership Corporation [L]aw, and without applying any part of the principal Fund' for that purpose. Provided, however, that the Congregation' will not allow, pay or apply in any year or be in any way responsible for a higher rate of interest on the principal sum of the ...