ARTICLE
15 - PUBLIC CEMETERY CORPORATIONS
§ 1501. Declaration of policy
The people of this state have a vital interest in the establishment, maintenance
and preservation of public burial grounds and the proper operation of the corporations
which own and manage the same. This article is determined an exercise of the
police powers of this state to protect the well-being of our citizens, to promote
the public welfare and to prevent cemeteries from falling into disrepair and
dilapidation and becoming a burden upon the community, and in furtherance of
the public policy of this state that cemeteries shall be conducted on a non-profit
basis for the mutual benefit of
plot owners therein.
§ 1502. Definitions
As used in this article:
(a) The term “cemetery corporation” means any corporation formed under
a general or special law for the disposal or burial of deceased human beings,
by cremation or in a grave, mausoleum, vault, columbarium or other receptacle
but does not include a family cemetery corporation or a private cemetery corporation.
(b) The term “lot owner” or “owner of a lot” means any person
having a lawful title to the use of a niche, crypt, lot, plot or part thereof,
in a cemetery, mausoleum or columbarium.
(c) The term “cemetery board” means the cemetery board in the division
of cemeteries in the department of state.
(d) A public mausoleum, crematory or columbarium shall be included within the
term “cemetery”.
(e) The sale of a lot, plot or part thereof, grave, niche or crypt shall mean
the sale of the right of use thereof for burial purposes.
(f) The term “monuments” means a memorial erected in a cemetery on
a lot, plot or part thereof, except private mausoleums.
(g) The term “interment” means the permanent disposition of human
remains by inurnment, entombment or ground burial.
§ 1503. Application
Except as otherwise provided in subdivision (c) of section fifteen hundred seven
and subdivision (m) of section fifteen hundred ten this article does not apply
to (1) a religious corporation, (2) a municipal corporation, (3) a cemetery
corporation owning a cemetery operated, supervised or controlled by or in connection
with a religious corporation or (4) a cemetery belonging to a religious or a
municipal corporation, or operated, supervised or controlled by or in connection
with a religious corporation unless any officer, member or employee of any such
corporation shall receive or may be lawfully entitled to receive any pecuniary
profit from the operations thereof, other than reasonable compensation for services
in effecting one or more of the purposes of such corporation or as proper beneficiaries
of its strictly charitable purposes or unless the organization of any such corporation
for any of its avowed purposes be a guise or pretense for directly or indirectly
making any other pecuniary profit for such corporation, or for any of its officers,
members or employees, and unless any such corporation is not, in good faith,
organized or conducted exclusively for one or more of its stated purposes.
§ 1504. Cemetery board and general administration
(a) A cemetery board is hereby created within the division of cemeteries in
the department of state, subject to the following requirements: (1) The members
of such board shall be the secretary of state, the attorney general and the
commissioner of health, who shall serve without additional compensation. (2)
The secretary of state, attorney general and commissioner of health may each,
by official order filed in the office of his respective department and in the
office of the board, designate a deputy or other representative in his department
to perform any or all of the duties under this section of the department head
making such designation, as may be provided in such order. Such designation
shall be deemed temporary only and shall not affect the civil service or retirement
rights of any person so designated. Such designees shall serve without additional
compensation. (3) The secretary of state shall be chairman of such board, provided
that in his absence at any meeting of the board the attorney general or the
commissioner of health, in such order, if either or both be present, shall act
as chairman. When designees of such officers, in the absence of all such officers,
are present at any meeting of the board, the designee of the secretary of state,
if present, and in his absence one of the other designees present, in the same
order of preference as provided for the officer appointing him, shall act as
chairman. (4) Technical, legal or other services shall be performed in so far
as practicable by personnel of the departments of state, law and health without
additional compensation but the board may employ and compensate within appropriations
available therefor such assistants and employees as may be necessary to carry
out the provisions of this section and may prescribe their powers and duties.
(5) Two members of the board shall constitute a quorum to transact the business
of the board at both regular and special meetings. (6) The board shall meet
at least once a month, shall keep a record of all its proceedings and shall
determine the rules of its own proceedings. (7) Special meetings may be called
by the chairman upon his initiative, and must be called by him upon receipt
of a written request therefor signed by another member of the board. Written
notice of the time and place of such special meeting shall be delivered to the
office of each member of the board. (8) The board shall have the duty of administering
the provisions of this chapter which deal with cemetery corporations other than
the cemeteries and cemetery corporations enumerated in section fifteen hundred
three and shall have all the powers herein provided and such other powers and
duties as may be otherwise prescribed by law.
(b) Director of the division of cemeteries. The cemetery board shall appoint
a director of the division of cemeteries who shall hold his office for a term
of six years. He shall receive an annual salary to be fixed by the board within
the appropriations available to the board. Subject to the supervision, direction
and control of the board, the director of the division of cemeteries shall be
responsible for the administration of this article and he shall exercise and
perform such duties and functions of the board as it may assign or delegate
to him from time to time.
(c) Powers and duties of the cemetery board. With respect to any cemetery or
cemetery corporation, the cemetery board shall have the following duties and
powers: (1) To adopt such reasonable rules and regulations as the cemetery board
shall deem necessary for the proper administration of this article. (2) To order
any cemetery corporation to do such acts as may be necessary to comply with
the provisions of this article or any rule or regulation adopted by the cemetery
board or to refrain from doing any act in violation thereof. (2-a) To adopt
reasonable rules and regulations to exempt those cemetery corporations from
the provisions of paragraph (h) of section fifteen hundred ten of this chapter
which because of a limited number of paid employees or appropriate resources
are unable to carry out such provisions. (2-b) To adopt reasonable rules and
regulations to extend the time period mandated by the provisions of paragraph
(h) of section fifteen hundred ten of this chapter when necessary because compliance
by a cemetery corporation within such time period is impossible. (3) To enforce
its orders by mandamus or injunction in a summary proceeding or otherwise. In
connection with such action or proceeding, the attorney general is authorized
to take proof, issue subpoenas and administer oaths in the manner provided in
the civil practice law and rules. (4) To impose a civil penalty upon a cemetery
corporation not exceeding one thousand dollars, after conducting an adjudicatory
hearing pursuant to the provisions of the state administrative procedure act,
for a violation of or a failure to comply with any provisions contained in this
article or any regulation, directive or order of the board, and without the
need to maintain a civil action pursuant to subdivision five of this paragraph.
(5) To maintain a civil action in the name of the people of the state to recover
a judgment for a money penalty imposed under the provisions of this article.
(d) Judicial review. Any order or determination of the cemetery board made pursuant
to this article shall be subject to review by the supreme court in the manner
provided by article seventy-eight of the civil practice law and rules; provided,
however, that an application for review of such order or determination must
be made within one hundred twenty days from the date of the filing of such order
or determination, and provided further that no stay shall be granted pending
the determination of the matter except on notice to the cemetery board and for
a period not exceeding thirty days. Proceedings to review such order shall be
entitled to a preference.
§ 1505. Special requirements
of incorporation
(a) Certificate of incorporation; additional contents. In addition to the requirements
of section four hundred two (Certificate of incorporation; contents), the certificate
of incorporation of a cemetery corporation shall be filed in the office of the
clerk of each county in which any part of the cemetery is proposed to be, or
is, situated, and shall state: (1) each city, village or town, and county, in
which any part of the cemetery is or is proposed to be situated; and (2) the
time of the annual meeting.
(b) Cemetery board endorsement. Every certificate of incorporation of a cemetery
corporation, except those within the exclusionary provisions of section fifteen
hundred three, shall have endorsed thereon or annexed thereto the approval of
the cemetery board as required in subdivision (e) of section four hundred four
of this chapter.
(c) Type of corporation. A cemetery corporation is a Type B corporation under
this chapter.
(d) Lot owners in unincorporated cemeteries may incorporate. (1) Not less than
three owners of lots in an unincorporated cemetery may cause a notice to be
posted in at least six conspicuous places in the city, town or village in which
such cemetery is located, and to be published once in each week for three successive
weeks in a newspaper, if any, published in such municipality, stating that at
a time and place specified, a meeting of the lot owners will be held to determine
whether such cemetery shall be incorporated, pursuant to this chapter. (2) The
meeting shall be held at a convenient place in the city, town or village in
which the cemetery is located, not less than twenty-five nor more than thirty
days after the first posting and publication of the notice of the meeting. At
such meeting every lot owner shall be entitled to one vote in person or by proxy
for each lot owned by him. The persons entitle [FN1] to vote at such meeting
shall select a chairman and secretary, and determine by ballot whether or not
the lot owners shall incorporate pursuant to this chapter. (3) If a majority
of the ballots are in favor of incorporation, the persons entitled to vote at
such meeting shall select three lot owners to incorporate and the provisions
of this chapter shall be applicable, except that three persons may incorporate,
and the corporation shall not be required to have more than three directors.
Upon such incorporation, the lot owners shall be members of the corporation,
and it shall be vested with the title to such cemetery and the personal property
appertaining thereto. If the title to the cemetery has prior to such incorporation
vested in the town, pursuant to section two hundred and ninety-one of the town
law of section one of title seven of chapter eleven of part one of the revised
statute, the supervisor of such town shall on request of the directors of such
corporation, execute to it a deed of such cemetery lands releasing all interest
of the town therein, and thereafter the title shall be vested in the corporation.
§ 1506. Cemetery lands
(a) Purchase of land; notice to board and court approval. No cemetery corporation,
in purchasing real property hereafter, shall pay or agree to pay more than the
fair and reasonable market value thereof. The terms of the purchase, including
the price to be paid and the method of payment, shall be subject, upon notice
to the cemetery board, to approval by the supreme court in a district where
any portion of the land is located. In determining the fair and reasonable market
value, the court may take into consideration the method by which the purchase
price is to be paid.
(b) Consent of local authorities. (1) No cemetery shall hereafter be located
in any city or village without the consent of the local legislative body of
such city, or the board of trustees of such village. (2) No cemetery shall hereafter
be located in any town, outside of an incorporated village in Suffolk county,
without the consent of the town board of such town.
(c) Cemeteries in Kings, Queens, Rockland, Westchester, Nassau, Suffolk, Putnam
and Erie counties. A cemetery corporation shall not take by deed, devise or
otherwise any land in the counties of Kings, Queens, Rockland, Westchester,
Nassau, Suffolk, Putnam or Erie for cemetery purposes, or set apart any ground
therefor in any of such counties, unless the consent of the board of supervisors
or legislative body thereof, or of the city council of the city of New York,
in respect to Kings or Queens county, be first obtained. Such consent may be
granted upon such conditions and under such regulations and restrictions as
the public health and welfare may require. Notice of application for such consent
shall be published, once a week for six weeks, in the newspapers designated
to publish the session laws and in such other newspapers published in the county
as such board or body may direct, stating the time when the application will
be made, a brief description of the lands proposed to be acquired, their location
and the area thereof. Any person interested therein may be heard on such presentation.
If such consent is granted the corporation may take and hold the lands designated
therein. The consent shall not authorize any one corporation to take or hold
more than two hundred and fifty acres of land. Nothing contained in this subdivision
shall prevent any religious corporation in existence on April fifteenth, eighteen
hundred fifty-four, in any of said counties from using as heretofore any burial
ground then belonging to it within such county. Such board or body, from time
to time, may make such regulation as to burials in any cemetery in the county
as the public health may require.
(d) Limitation on the acquisition of land by rural cemetery corporations. It
shall not be lawful for any rural cemetery corporation hereafter to acquire
or take by deed, devise or otherwise, any land in any county within the state
of New York, having a population of between one hundred and seventy-five thousand
and two hundred thousand, according to the federal census of nineteen hundred,
or set apart any ground for cemetery purposes therein, where there has already
been set apart in any such county, five hundred acres of land for rural cemetery
purposes, and the consent of the board of supervisors of any such county shall
not be granted where there has already been granted five hundred acres of land,
or upwards, within such county, to rural cemetery corporations. But nothing
herein contained shall affect any lawful consent or grant hitherto made by the
board of supervisors of any such county.
(e) Limitations on the acquisition of land for cemetery purposes in certain
counties. (1) It shall not be lawful for any corporation, association or person
hereafter to set aside or use for cemetery purposes any lands in any county
within the state erected on and after January first, eighteen hundred ninety,
adjoining a city of the first class and having a population of between eighty
thousand and eighty-five thousand according to the federal census of nineteen
hundred ten; but nothing herein contained shall prevent cemetery corporations
formed prior to January first, nineteen hundred seventeen, which own in such
county a cemetery in which burials have been made prior to such date, from setting
apart and using for burial purposes lands lying contiguous or adjacent to such
cemetery which lands have been heretofore acquired by a recorded deed of conveyance
made to such a cemetery corporation either for burial purposes, or for the purposes
of the convenient transaction of its general business, which lands shall have
been acquired with the consent of the board of supervisors; nor to prohibit
the dedication or use of land within such county for a family cemetery as provided
in subdivision (c) of section fourteen hundred one of this chapter. (2) The
provisions of this subdivision shall not operate to prevent any such cemetery
corporation located in Nassau county from using for burial purposes contiguous
or adjacent land acquired by it prior to January first, nineteen hundred forty-eight
provided that such acquisition shall have consisted of less than five acres,
and provided further that such use shall be consented to by the board of supervisors.
(f) Conveyance by religious corporations or by trustees. A cemetery corporation
may accept a conveyance of real property held by a religious corporation for
burial purposes, or by trustees for such purposes if all such trustees living
and residing in this state unite in the conveyance, subject to all trusts, restrictions
and conditions upon the title or use. Lots previously sold and grants for burial
purposes shall not be affected by any such conveyance; nor shall any grave,
monument or other erection, or any remains, be disturbed or removed without
the consent of the lot owner, or if there be no such owner, without the consent
of the heirs of the persons whose remains are buried in such grave.
(g) Certain conveyances to cemetery corporations authorized. Upon approval of
the cemetery board first having been obtained, a cemetery corporation which
maintains and operates a cemetery may accept a conveyance of title to the fee
of or to burial rights in lands within the confines of said cemetery and it
shall be lawful for any cemetery or business corporation to make such conveyances.
Lots previously sold and grants previously made for burial purposes shall not
be affected by such conveyance. The cemetery corporation, in consideration of
the conveyance to it of burial rights in lands within the confines of said cemetery,
may, with the approval of the cemetery board, issue participating certificates
of the kind and nature provided for in paragraph three of subdivision (e) of
section fifteen hundred eleven of this article. In making its determination
the cemetery board shall consider and may condition its approval on the purposes
of this section.
(h) Acquisition of property by condemnation. If the certificate of incorporation
or by-laws of a cemetery corporation do not exclude any person, on equal terms
with other persons, from the privilege of purchasing a lot or of burial in its
cemetery, such corporation may, from time to time, acquire by condemnation,
exclusively for the purposes of a cemetery, not more than two hundred acres
of land in the aggregate, forming one continuous tract, wholly or partly within
the county in which its certificate of incorporation is filed or recorded, except
as in this section otherwise provided as to the counties of Erie, Nassau, Suffolk,
Putnam, Kings, Queens, Rockland and Westchester. A cemetery corporation may
acquire by condemnation, exclusively for the purposes of a cemetery, any real
property or any interest therein necessary to supply water for the uses of such
cemetery, and the right to lay, relay, repair and maintain conduits and water
pipes with connections and fixtures, in, through or over the lands of others
and the right to intercept and divert the flow of waters from the lands of riparian
owners, and from persons owning or interested in any waters. But no such cemetery
corporation shall have power to take or use water from any of the canals of
this state, or any canal reservoirs as feeders, or any streams which have been
taken by the state for the purpose of supplying the canals with water. A cemetery
corporation may acquire, otherwise than by condemnation, real property as aforesaid
and additional real property, not exceeding in value two hundred thousand dollars,
for the purposes of the convenient transactions of its business, no portion
of which shall be used for the purposes of a cemetery.
(i) Sale or disposition of cemetery lands. (1) No cemetery corporation may sell
or dispose of the fee of all or any part of its lands dedicated to cemetery
use, unless it shall prove to the satisfaction of the supreme court in the district
where any portion of the cemetery lands is located, either: (A) that all bodies
have been removed from each and every part of the cemetery, that all the lots
in the entire cemetery have been reconveyed to the corporation and are not used
for burial purposes, and that it has no debts and liabilities, or (B) that the
land to be sold or disposed of is not used and is not physically adaptable for
burial purposes and that the sale or disposition will benefit the cemetery corporation
and the owners of plots and graves in the cemetery, and (C) that the sale or
disposition is not to a funeral entity as defined in paragraph (c) of section
fifteen hundred six-a of this article. (2) If the sale or disposition is made
pursuant to subparagraph (A) of subdivision one of this paragraph, the cemetery
shall satisfy the court that it is in the public interest to dispose of such
cemetery land in the manner proposed; that the subject land is not suitable
for cemetery purposes and is no longer needed by the community for such cemetery
uses or purposes; and that the subject land is being sold for its current market
value. (3) If the sale or disposition of the land is made pursuant to subparagraph
(B) of subdivision one of this paragraph, the court shall order that the consideration
received by the cemetery corporation, less the necessary expenses incurred,
shall be deposited into the permanent maintenance fund established by the cemetery
corporation pursuant to paragraph (a) of section fifteen hundred seven of this
article. (4) Notice of any application hereunder shall be given to the cemetery
board, to the holders of certificates of indebtedness and land shares of the
cemetery corporation, and to any person interested in the proceeding pursuant
to section five hundred eleven of this chapter (Petition for leave of court).
(j) Conveyance by cemetery corporation to city or village. A cemetery corporation
may convey and transfer its real property held for burial purposes, together
with its other assets, to a city having a population of less than one million
inhabitants in which such real property is located, or to a village, provided
such real property is located within such village or wholly within three miles
of the boundaries thereof, or to a town, in which such real property is located,
if all the directors and trustees of such cemetery corporation living and residing
in the state of New York unite in the conveyance and transfer. Such conveyance
and transfer shall be subject to all agreements as to lots sold and all trusts,
restrictions and conditions upon the title or use of such real property and
assets. Lots previously sold and grants previously made for burial purposes
shall not be affected by such conveyance, nor shall any grave, monument or other
erection be disturbed or removed except in accordance with law. No such conveyance
shall be effective unless and until the legislative body of such city, town
or village shall by ordinance or resolution accept the same subject to the conditions
and restrictions hereinabove imposed, which ordinance or resolution said legislative
body is hereby authorized and empowered to adopt by a majority vote of such
body. Upon such conveyance and transfer such property shall be and become a
municipal cemetery of such city, town or village and such property and assets
so conveyed and transferred shall be administered as any other municipal cemetery
of such city, town or village and the said cemetery corporation shall be dissolved
by the recording of such conveyance and transfer.
(k) Streets or highways not to be laid out through certain cemetery lands. So
long as the lands of a rural cemetery corporation organized under the act entitled
“An act authorizing the incorporation of rural cemetery associations,”
constituting chapter one hundred thirty-three of the laws of eighteen hundred
forty-seven, and the acts amendatory thereof, shall remain dedicated to the
purpose of a cemetery, no street, road, avenue or public thoroughfare shall
be laid out through such cemetery, or any part of the lands held by such association
for the purposes aforesaid, without the consent of the trustees of such association
and the cemetery board.
(l) Exclusive right of cemetery corporation to provide annual care services.
Notwithstanding any provision of this article to the contrary, it shall be the
right of each cemetery corporation, at its option, to exclusively provide all
annual care services to be performed for consideration on all or any part of
its lands at rates to be reviewed by the cemetery board. In the event that the
cemetery board determines that an excessive, unauthorized or improper charge
has been made for such services or that the services have not been properly
performed, he or she may direct the cemetery corporation to pay to the person
from whom such charge was collected a sum equivalent to three times the excess
as determined by the cemetery board, or in the case of work not properly performed,
it may direct the cemetery corporation to perform the work properly. Every cemetery
corporation that chooses to provide, on an exclusive basis, such annual care
services shall include in any contract for the sale of any part of its lands
the following notice, in at least ten point bold type:
Notice
The __________ (name of cemetery corporation), pursuant to state law, provides
annual care services on an exclusive basis. Therefore, the purchaser of the
plot or lot being transferred by this agreement may not contract with any outside
party for such annual care services. For purposes of this paragraph, the term
“annual care” shall mean the maintenance of a lot, plot or part thereof,
and may include care of lawns, trees, shrubs, monuments and markers within the
plot. The provisions of this paragraph shall not be construed to prohibit a
lot owner from placing, or arranging to place, floral or similar arrangements
on such cemetery lots or plots.
§ 1506-a. Cemetery corporations;
restrictions
(a) No cemetery corporation shall, directly or indirectly:
(1) sell, or have, enter into or perform a lease of any of its real property
to a funeral entity, or use any of its property for location of a funeral entity;
(2) commingle its funds with a funeral entity;
(3) direct or carry on its business or affairs with a funeral entity;
(4) authorize control of its business or affairs by a funeral entity;
(5) engage in any sale or cross-marketing of goods or services with a funeral
entity;
(6) have or enter into or perform a management or service contract for cemetery
operations with a funeral entity; or
(7) have, enter into or perform a management contract with any entity other
than a not-for-profit cemetery corporation.
(b) Only the provisions of subdivisions one and two of paragraph (a) of this
section shall apply to cemetery corporations with thirty acres or less of real
property dedicated to cemetery purposes, and only to the extent the sale or
lease is of real property dedicated to cemetery purposes, and such cemeteries
shall not engage in the sale of funeral home goods or services, except if such
goods and services are otherwise permitted to be sold by cemeteries, nor shall
a majority of the members of the board of directors or trustees of such cemeteries
be made up of the representatives of a funeral entity.
(c) For the purposes of this section, “funeral entity” means a person,
partnership, corporation, limited liability company or other form of business
organization providing funeral home services, or owning, controlling, conducting
or affiliated with a funeral home, any subsidiary thereof or an officer, director
or stockholder having a ten per centum or greater proprietary, beneficial, equitable
or credit interest in a funeral home.
§ 1507. Trust funds
(a) Maintenance and preservation; permanent maintenance fund; current maintenance
fund. Subject to rules and regulations of the cemetery board: (1) Every cemetery
corporation shall maintain and preserve the cemetery, including all lots, plots
and parts thereof. For the sole purpose of such maintenance and preservation,
every cemetery corporation shall establish and maintain (A) a permanent maintenance
fund, and (B) a current maintenance fund. At the time of making sale of a lot,
plot or part thereof, the cemetery corporation shall deposit not less than ten
per centum of the gross proceeds of the sale into the permanent maintenance
fund. An additional fifteen per centum of the gross proceeds of the sale shall
be deposited in the current maintenance fund. (2) The permanent maintenance
fund is hereby declared to be and shall be held by the corporation as a trust
fund, for the purpose of maintaining and preserving the cemetery, including
all lots, plots and parts thereof. The principal of such fund shall be invested
in such securities as are permitted for the investment of trust funds by section
11-2.2 of the estates, powers and trusts law. The income arising therefrom shall
be used solely for the maintenance and preservation of the cemetery grounds.
The principal of such fund shall remain inviolate, except that upon application
to the supreme court in a district where a portion of the cemetery grounds is
located, the court may make an order permitting the principal or a part thereof
to be used for the purpose of current maintenance and preservation of the cemetery
or otherwise. Such application may be made by the cemetery board on notice to
the corporation or by the corporation on notice to the cemetery board. (3) The
current maintenance fund shall be used and applied for the sole purpose of ordinary
and necessary expenses of the care and maintenance of the cemetery. When all
burial rights in the cemetery have been conveyed, the fund remaining on deposit
or to the credit of the current maintenance fund shall be transferred into the
permanent maintenance fund. (4) The percentage of the proceeds of sales required
to be deposited in the permanent maintenance fund or current maintenance fund
by a particular cemetery corporation may be increased or diminished by order
of the supreme court in a district where any portion of the cemetery is located.
Such application may be made by the cemetery board on notice to the corporation
or by the corporation on notice to the cemetery board.
(b) Perpetual care of lots. (1) Upon the application of a prospective purchaser
of any lot, plot or part thereof and upon payment of the purchase price and
the amount fixed as a reasonable charge for the perpetual care of any lot, plot
or part thereof, every cemetery corporation shall include with the deed of conveyance
an agreement perpetually to care for such lot, plot, or part thereof, to the
extent that the income derived by the corporation from such amount will permit.
(2) Such corporation also, upon the application of an owner or of the executor
or administrator of a deceased owner of any lot and upon the payment of the
amount fixed as a reasonable charge for the perpetual care of such lot, shall,
and upon the application of any other person and the payment of such amount,
may enter into a like agreement with him. Such agreement shall be executed and
may be recorded in the same manner as a deed. (3) Any corporation organized
under or subject to the provisions of this section may enter into an agreement
in writing with any executor or executors, trustee or trustees, under a last
will and testament to whom there has heretofore been, or may hereafter be, bequeathed
a sum for the perpetual care of any lot, plot or part thereof in any such cemetery
or with any administrator or administrators with the will annexed under any
such will perpetually to care for such lot, plot or part thereof under the provisions
of the terms of such last will and testament, and subject in all cases to the
approval of the surrogate’s court having jurisdiction over such trust estate.
Such approval may be evidenced by the written endorsement of the surrogate on
a duplicate original of such agreement filed in the surrogate’s court.
In case the surrogate shall approve such agreement any such executor, trustee
or administrator with the will annexed thereupon shall pay over to the treasurer
of such perpetual care fund of such cemetery corporation any moneys remaining
or being in his hands belonging to such trust, and upon making such payment
and accounting therefore to the surrogate’s court may be discharged from
said trust as such executor, trustee or administrator with the will annexed.
(c) Perpetual care fund. (1) Every cemetery corporation and every religious
corporation having charge and control of a cemetery which heretofore has been
or which hereafter may be used for burials, shall keep separate and apart from
its other funds, all moneys and property received by it, whether by contract,
in trust or otherwise, for the perpetual care and maintenance of any lot, plot
or part thereof in its cemetery, and all such moneys or property so received
by any such corporation are hereby declared to be, and shall be held by the
corporation as trust funds. Any moneys and property so received, unless otherwise
provided in the instrument under which such moneys or property were received,
shall be kept in a separate fund to be known as the perpetual care fund. (2)
The principal of such funds, whether kept in the perpetual care fund or otherwise,
and unless already so invested when received, shall be invested within a reasonable
time after receipt thereof, and kept invested, in such securities as are permitted
for the investment of trust funds by section 11-2.2 of the estates, powers and
trusts law. The income arising therefrom shall be used solely for the perpetual
care and maintenance of the lot or plots or parts thereof for which such income
has been provided. (3) The corporation may, for the purpose of investing and
reinvesting such funds, add the same to any similar trust fund or funds and
apportion shares or interest to each trust fund, showing upon its records at
all times every share or interest. (4) The corporation may accept in trust for
the perpetual care of a lot, plot or part thereof in its cemetery, property
not made eligible for the investment of trust funds under the foregoing provisions
of this subdivision and may retain such property in the form in which received,
separate and apart from the perpetual care fund, if directed so to do by the
instrument under which such property is received, so long as such property remains
in the form in which it was received; but whenever such property is sold or
otherwise disposed of, the proceeds of such sale or other disposition shall
be invested in the manner heretofore provided in this subdivision for the investment
of trust funds. The exchange of stock or evidences of indebtedness issued by
a corporation for stock or evidences of indebtedness of the same corporation,
or for stock, evidences of indebtedness, warrants or script received as a result
of merger, consolidation or reorganization of such corporation, or the receipt
of additional stock or evidences of indebtedness of such corporation, as a distribution
by such corporation, shall not be deemed to be a disposition of the property
originally received in trust, and such exchanged or additional property may
be retained in place and stead of the property originally received, and under
the same conditions. The corporation shall keep accurate accounts of all funds
for the perpetual care and maintenance of cemetery lots, plots or parts thereof,
separate and apart from its other funds. A copy of the record pertaining to
each such perpetual care fund shall be at all times available at the office
of the corporation during usual business hours, for inspection and copy by any
owner of an endowed lot or his representative.
(d) Perpetual care fund; allocation of income and cost of care and maintenance.
On or before the fifteenth day of March in each calendar year the officers of
every cemetery corporation shall fix and determine that portion of the income
on the investment of the principal of the perpetual care fund during the calendar
or fiscal year immediately preceding, to be apportioned to each separate lot
or part thereof for which a perpetual care agreement has been made. The cost
during such previous calendar or fiscal year of the care of each lot or part
thereof shall be allocated and charged against the income so apportioned to
it. Any excess of the income so apportioned over and above the allocated cost
of the care and maintenance of such lot or part thereof shall be credited to
such lot or part thereof, to be used in any future years to make up the deficiency
if the income apportioned to such lot or part thereof should, in any year since
September first, nineteen hundred forty-nine, or in any future year, fall, or
have fallen, below the cost of care thereof.
(e) Designation of fiduciary corporation by directors or trustees of cemetery
corporation to act as custodians of funds. Notwithstanding the provisions of
any other law, the directors or trustees of cemetery corporations are hereby
authorized to designate a bank or trust company to act as custodian and trustee
of any or all of the respective funds of such cemetery corporation received
by it for the perpetual care of lots in the cemetery thereof pursuant to subdivision
(b), of this section, the permanent maintenance of such cemetery pursuant to
subdivision (a) of this section, and for special purposes pursuant to subdivision
(f) of this section. Such corporate trustee shall be designated by a resolution
duly adopted by the board of directors or trustees and approved by a justice
of the supreme court of the judicial district in which the cemetery of said
corporation is located; and the directors or trustees of such cemetery corporation
may, with the approval of the justice of the supreme court, revoke such trust,
and either take over such trust fund or name another trustee to handle the same,
but if not so revoked, such trust shall be perpetual. Any bank or trust company
accepting any such cemetery fund shall keep the same separate from all other
funds, except that it may, irrespective of any provision contained in this article
invest the same in a legal common trust fund or in shares of a mutual trust
investment company organized under the banking law, and shall pay over the net
income to the directors or trustees of the cemetery corporation by whom it shall
be expended and applied to the purpose for which such trust fund was paid to
the cemetery corporations and accounted for in accordance with such subdivisions
(a), (b) and (f) of this section.
(e-1) Monument maintenance fund. (1) A cemetery corporation may, subject to
the approval of the cemetery board, establish and maintain a monument maintenance
fund. Such a fund is hereby declared to be and shall be held by the cemetery
corporation as a trust fund, for the purpose of providing notice if such monuments
are damaged or defaced by an act of vandalism and for the restoration of such
monuments. Two or more cemetery corporations may establish a joint monument
maintenance fund.
(2) The principal of the fund shall be invested in securities permitted for
the investment of trust funds by section 11-2.2 of the estates, powers and trusts
law. The principal of such fund shall remain inviolate, except that upon application
to the supreme court in a district where a portion of the cemetery grounds is
located, the court may make an order permitting the principal or a part thereof
to be used for the purpose of restoring monuments damaged or defaced by an act
of vandalism. The income arising from such investment shall be used solely for
the costs and expenses resulting from an act of vandalism against monuments
in such cemetery.
(3) The fund shall be financed by a charge levied at the time of each interment
at a rate established by each cemetery creating such a fund, subject to cemetery
board approval pursuant to section fifteen hundred nine of this article. Such
a charge shall be levied in addition to the approved rates for interment. The
fund may also accept gifts, donations and bequests.
(4) Each cemetery creating such a fund shall promulgate rules and regulations
to administer the fund, subject to cemetery board approval pursuant to section
fifteen hundred nine of this article. Such rules shall include the conditions
under which the income from such fund may be properly expended.
(5) The cemetery corporation shall keep accurate accounts of all moneys for
the fund, separate and apart from its other funds.
(f) Acquisition of property for special purposes and in trust. (1) A cemetery
corporation may acquire, otherwise than by condemnation, real or personal property,
absolutely or in trust, in perpetuity or otherwise, and shall use the same or
the income therefrom in pursuance of the terms of the instrument by which it
was acquired, for the following purposes only: (i) The improvement or embellishment,
but not the enlargement, of its cemetery; (ii) The construction, preservation
or replacement of any building, structure, fence, wall, or walk therein; (iii)
The erection, renewal or preservation of any tomb, monument, stone, fence, wall,
railing or other erection or structure on or around its cemetery or any lot
or plot therein; (iv) The planting or cultivation of trees, grass, shrubs, flowers
or plants in or about its cemetery or any lot or plot therein; (v) The construction,
operation, maintenance, repair and replacement of a crematory or columbarium
or both in its cemetery; (vi) The care, keeping in order and embellishment of
any lot, plot or part thereof or the structures thereon, in its cemetery, as
prescribed in the instrument transferring such property to the cemetery corporation,
or by the person or persons from time to time having possession, care and control
of such lot, plot or part thereof, as the case may be. (2) All moneys and property
received by a cemetery corporation in trust under this subdivision, unless otherwise
provided in the instrument under which such moneys or property were received
and unless already so invested when received, shall be invested within a reasonable
time after the receipt thereof, and kept invested in such securities as are
permitted for the investment of trust funds by section 11-2.2 of the estates,
powers and trusts law. The corporation may, for the purpose of investing and
reinvesting such funds, add the same to any similar trust fund or funds and
apportion shares or interests to each trust fund, showing upon its records at
all times every share or interest. The cemetery corporation shall maintain a
record for each such trust fund. Such record shall be at all times available
at the office of the corporation during usual business hours, for inspection
and copy by any owner of an endowed lot or his representative.
(g) Trust for the care of burial ground. A cemetery corporation, incorporated
under or by a general or special law, may receive tangible property, securities
or funds in trust, and hold and invest the same and apply the principal or income
thereof, in accordance with the terms of the trust, for the purpose of repairing,
maintaining, improving or embellishing a burial ground, not constituting a part
of the cemetery of such cemetery corporation, and located outside of a city
of more than one million inhabitants and within ten miles of the cemetery of
the corporation accepting such trust. The directors of such corporation, or
a majority of them and the treasurer, shall annually within sixty days after
the close of each calendar or fiscal year, make, sign and shall file at the
office of the corporation a detailed accounting and report of such trust funds
held under this subdivision and the use made of such funds or of the income
thereof for the preceding calendar or fiscal year, which shall include among
other things, properly itemized, the securities in which the same is then invested,
and any purchases, sales or other changes made therein during the period covered
by such report. Such accounting and report shall be at all times available at
the office of the corporation, during usual business hours, for inspection and
copy by any lot owner or any contributor to such trust fund.
(h) Vandalism and abandonment. (1) Cemeteries incorporated under this article
shall contribute to a fund created pursuant to section ninety-seven-r of the
state finance law for the maintenance of abandoned cemeteries, including the
construction of cemetery fences, placement of cemetery lights and replacement
of cemetery doors and locks, and for the restoration of property damaged by
acts of vandalism. Such fund shall be administered by a board of trustees comprised
of the secretary of state, the attorney general and the commissioner of health,
or their designees, who shall serve without additional compensation.
(2) The fund shall be financed by contributions by the cemetery corporations
of not more than five dollars ($5.00) per interment or cremation in a manner
to be determined by the New York state cemetery board. No contributions shall
be collected upon the interment of the cremains of a deceased person where a
contribution was collected upon cremations.
(3) The moneys of the fund shall be expended equally for the maintenance of
abandoned cemeteries previously owned by a corporation incorporated pursuant
to this chapter or the membership corporations law and the repair of cemetery
vandalism damage, provided, however, that the cemetery board may determine that
circumstances necessitate an unequal distribution due to specific needs and
may provide for such distribution. For purposes of this section, the maintenance
of abandoned cemeteries may include the construction of cemetery fences, placement
of cemetery lights and replacement of cemetery doors and locks.
(4) Authorization for payments by the fund for maintenance of an abandoned cemetery
shall be made by the secretary of state only upon approval by the cemetery board
of an application by a municipality for fair and reasonable expenses required
to be made by the municipality for maintenance of an abandoned cemetery; provided,
however, that the cemetery board shall not approve any such application unless
the municipality acknowledges that the responsibility for restoration and future
care, preservation and maintenance of such cemetery has been assumed by the
municipality. For the purposes of this paragraph such cemetery shall always
be deemed an abandoned cemetery.
(5) Authorization for payments by the fund for the repair of vandalism damage
shall be made by the secretary of state only on approval by the New York state
cemetery board which shall determine:
(i) that an act of vandalism to the extent described by the cemetery corporation
did take place;
(ii) that either a written report of the vandalism was filed with the local
police or sheriff’s department, or, that the cemetery, upon consent of
the division, made a determination not to file the report because the publicity
generated by filing the report would have adverse consequences for the cemetery;
(iii) that the cost of repairs is fair and reasonable; and
(iv) that the cemetery corporation has been unable to obtain funds from the
lot owner, his spouse, devisees or decendants [FN1] within a reasonable period
of time nor are there adequate funds in the cemetery corporations monument maintenance
fund, if such a fund has been established by the cemetery.
(6) The New York state cemetery board shall promulgate rules defining standards
of maintenance, as well as what type of vandalism shall qualify for payment
of repair by the fund and the method and amount of payment of contributions
described in subparagraph two of this paragraph upon the recommendation of the
state cemetery board citizens advisory council created by section 1507-a (State
cemetery board citizens advisory council).
(7) Nothing contained in this paragraph is to be construed as giving a cemetery
corporation an “insurable interest” in monuments or other embellishments
on a plot, lot or part thereof, nor is it meant to imply that the cemetery corporation
has any responsibility for repairing vandalism damage not covered by this fund,
nor shall it constitute the doing of an insurance business.
§ 1507-a. State cemetery board
citizens advisory council
(a) There is hereby created a state cemetery board citizens advisory council,
to study, investigate, monitor and make recommendations with respect to the
maintenance and operation of the state cemetery vandalism restoration and administration
fund. Such advisory council shall study and investigate incidents of cemetery
abandonment, vandalism and desecration, monitor the administration of such fund
and recommend changes to improve the management of and expenditures from the
state cemetery vandalism restoration and administration fund.
(b) The advisory council shall be composed of a member designated by the secretary
of state, a member designated by the attorney general, a member designated by
the commissioner of health, a member designated by the comptroller and a member
designated by the commissioner of taxation and finance. The appointees to the
advisory council shall not be employees of the department of state, department
of law, department of health, department of audit and control or department
of taxation and finance. Each of the members shall serve for a term of two years,
provided, however, that the first appointments by the comptroller and commissioner
of taxation and finance shall serve for a term of one year. Vacancies occurring
other than by expiration of term shall be filled in the same manner as the original
appointments for the balance of the unexpired term. Persons designated or appointed
to the advisory council shall have demonstrated a long-standing interest, knowledge
and experience in the care and preservation of gravesites. One member shall
be elected chairman of the advisory council by a majority vote of the members
of such council.
(c) The members of the advisory council shall receive no compensation for their
services but shall be reimbursed for travel expenses incurred in the performance
of their duties.
(d) The advisory council shall meet at least quarterly at the call of the chairman.
(e) The advisory council may request and shall receive from any department,
division, board, bureau, commission, agency, public authority of the state or
any political subdivision thereof such assistance and data as will enable it
properly to carry out its activities hereunder and effectuate the purposes set
forth herein.
§ 1508. Reports by cemeteries
(a) Annual report. Each cemetery corporation shall, on or before the fifteenth
day of March after the end of its calendar year, or if on a fiscal year the
seventy-fifth day after the close of such year, file with the cemetery board
(1) a statement as to the condition of the permanent maintenance trust fund
and a schedule of the assets of such fund. (2) a statement as to the condition
of the perpetual care fund and a schedule of the assets of such fund. (3) a
statement as to the condition of the moneys and properties received by the cemetery
corporation in trust under the provisions of subdivisions (f) and (g) of section
fifteen hundred seven of this article. (4) a statement of the gross proceeds
of the sale of plots, lots and parts thereof, graves, niches and crypts showing
the disposition of such proceeds and (5) a statement of changes in the number
and amount of certificates of indebtedness in accordance with the provisions
of paragraph three of subdivision (a) of section fifteen hundred eleven of this
article. (6) a statement as to the condition of the monument maintenance fund,
if any, and a schedule of the assets of such fund.
(b) Additional reports. The cemetery board may address to any cemetery corporations
or its officers or any person any inquiry in relation to the transactions or
conditions of the cemetery corporation or any matter connected therewith, and
may require that a reply be verified. Failure to submit such reply within the
time designated by the cemetery board shall subject the corporation, officer
or person so addressed to the penalties provided in subdivision (d) hereof.
(c) Cemetery payment for administration. To defray the expenses of examination
and administration, each cemetery corporation shall not later than March fifteenth
in each calendar year, pay to the cemetery board the sum of three dollars per
interment in excess of fifteen interments for the preceding calendar year.
(d) Failure to file report. Any cemetery corporation or individual failing to
file any report or any schedule of rules, regulations and charges required by
this article shall forfeit to the people of the state the sum of one hundred
dollars for each day that each such report shall be delayed or withheld, except
that the cemetery board may extend the time for filing any such report and may
waive payment of any penalty or part thereof provided herein.
§ 1509. Cemetery rules and regulations;
charges and lot tax assessments
(a) Rules and regulations. The directors of a cemetery corporation shall make
reasonable rules and regulations for the use, care, management and protection
of the property of the corporation and of all lots, plots and parts thereof;
for regulating the dividing marks between the lots, plots and parts thereof;
for prohibiting or regulating the erection of structures upon such lots, plots
or parts thereof; for preventing unsightly monuments, effigies and structures
within the cemetery grounds, and for the removal thereof; for regulating the
introduction and care of plants, trees and shrubs within such grounds; for the
prevention of the burial in a lot, plot or part thereof, of a body not entitled
to burial therein; for regulating or preventing disinterments; for regulating
the conduct of persons while within the cemetery grounds; for excluding improper
persons and preventing improper assemblages therein. The directors may prescribe
penalties for the violation of any such rule or regulation, not exceeding twenty-five
dollars for each violation, which shall be recoverable by the corporation in
a civil action.
(b) Charges for services. The directors of a cemetery corporation shall fix
and make reasonable charges for any acts and services ordered by the owner and
rendered by the corporation in connection with the use, care, including perpetual,
annual and special care, management and protection of lots, plots and parts
thereof. In determining said charges the directors shall consider the propriety
and the fair and reasonable cost and expense of rendering the services or performing
the work for which such charges are made.
(c) Cemetery board approval. (1) A cemetery corporation’s rules, regulations
and original charges shall not become effective unless and until approved by
the cemetery board as hereinafter provided. (2) The directors of any cemetery
corporation, organized on or before August thirty-first, nineteen hundred forty-nine,
shall file in the office of the cemetery board the name and address of the corporation
together with its rules, regulations and charges, and a statement showing the
basis upon which they were made, within ninety days after the time this section
as hereby amended takes effect. The directors of any cemetery corporation organized
on or after September first, nineteen hundred forty-nine, shall file in the
office of the cemetery board the name and address of the corporation together
with its rules, regulations and charges, and a statement showing the basis on
which they were made, within ninety days after the date of the filing of the
certificate of incorporation in the department of state. (3) Within six months
after the date of such filing, the cemetery board shall make and file in its
office an order approving, disapproving or amending such rules, regulations
and original charges in whole or part. Such rules, regulations and charges,
if approved with or without amendment, shall become effective as approved upon
the filing of such order by the cemetery board in its office. The cemetery board
shall notify the directors of the action taken by it and its reasons therefor
by registered mail addressed to the corporation at its principal office. In
making its determination as to the schedule of charges the cemetery board shall
consider the propriety and the fair and reasonable cost and expense of rendering
the services or performing the work for which such charges are made. In passing
upon the rules and regulations, the cemetery board shall consider the interests
of the members of the corporation and the public interest in the proper maintenance
and operation of burial grounds. (4) The rules, regulations and charges of any
cemetery corporation existing on or before August thirty-first, nineteen hundred
forty-nine, shall remain in effect until the cemetery board files in its office
an order pursuant to the provisions of subdivision three hereof. A cemetery
corporation organized on or after September first, nineteen hundred forty-nine,
may enforce the rules, regulations and charges filed by it in the office of
the cemetery board until the cemetery board files in its office an order pursuant
to the provisions of subdivision three hereof.
(d) Services not in list of charges. In the event that a cemetery corporation
provides any services not included in the list of charges, and for which a charge
cannot reasonably be fixed in advance, the charges made therefor shall be reviewable
by the cemetery board. In the event that the cemetery board determines that
an excessive, unauthorized or improper charge has been made for such services
or that the services have not been properly performed, it may direct the cemetery
corporation to pay to the person from whom such charge was collected a sum equivalent
to three times the amount of the excess as determined by the cemetery board,
or in the case of work not properly performed, it may direct the cemetery corporation
to perform the work properly.
(e) Amendment and modification. (1) The rules and regulations of a cemetery
corporation may be amended or added to by the corporation by filing such proposed
amendments or additions in the office of the cemetery board but no such amendment
or addition shall be effective unless and until an order approving such amendments
or additions is made by the cemetery board and filed in its office in the same
manner as that applicable to the original filing of the rules, regulations and
charges of the cemetery corporation. (2) The charges of a cemetery corporation
may be amended or added to by the corporation by filing an application containing
such proposed amendment or addition in the office of the division of cemeteries
and shall be processed in accordance with subdivision three of this paragraph.
The cemetery board shall consider the propriety and the fair and reasonable
costs and expense of rendering the services or performing the work for which
such charges are made. The effective rules, regulations or charges of a cemetery
corporation may be amended, modified or vacated by the cemetery board at any
time. The cemetery board shall notify the directors of the action taken by it
and its reasons therefor by registered or certified mail addressed to the corporation
at its principal office. In amending, modifying or vacating any rule, regulation
or charge, the cemetery board shall be guided by the standards set forth in
subdivision three of paragraph (c) of this section. (3) Any application setting
forth the proposed amendment of, or addition to, the charges of a cemetery corporation
as provided for by subdivision two of this paragraph shall be processed in accordance
with the following schedule:
A. Within thirty-five days following receipt of the application, the board or
the division may request from the cemetery corporation any additional information
or documentation deemed necessary to complete such application, and such application
shall not be complete for the purposes of compliance with this subdivision until
the requested information has been received. If no such request is made, the
application shall be deemed to be complete on the thirty-fifth day after its
receipt by the division.
B. An application setting forth the proposed amendment of, or addition to, the
charges of a cemetery corporation shall be deemed to be approved for any cemetery
corporation holding, including unrestricted funds, cash and investments totalling
less than four hundred thousand dollars, if the board does not object to the
proposed charges within sixty days following: (i) the date on which the application
shall have been deemed to be complete or (ii) the date on which the requested
information necessary to complete the application shall have been received,
whichever is later. If the board objects to the proposed charges, it shall notify
the directors in writing with the reasons therefor, such notice to be mailed
by registered or certified mail to the corporation at its principal office,
not less than three business days before the end of such sixty day period. If
the board approves such amendment of or addition to the charges, it shall do
so by order.
C. An application setting forth the proposed amendment of, or addition to, the
charges of a cemetery corporation shall be deemed to be approved for any cemetery
corporation holding, including unrestricted funds, cash and investments totalling
more than four hundred thousand dollars, if the board does not object to the
proposed charges within ninety days following: (i) the date on which the application
shall have been deemed to be complete or (ii) the date on which the requested
information necessary to complete the application shall have been received,
whichever is later. If the board objects to the proposed charges, it shall notify
the directors in writing with the reasons therefor, such notice to be mailed
by registered or certified mail to the corporation at its principal office,
not less than three business days before the end of such ninety day period.
If the board approves such amendment of or addition to the charges, it shall
do so by order.
(f) Lot tax assessment. (1) If the funds of a cemetery corporation applicable
to the improvement and care of its cemetery, or applicable to the construction
of a receiving vault therein for the common use of lot owners, be insufficient
for such purposes, the directors of the corporation, not oftener than once in
any year and for such purposes only, may, upon the prior approval of the cemetery
board, which shall determine the necessity and propriety thereof, levy a tax
on some basis to be determined by the directors of such corporation, but no
such tax shall exceed two dollars on any one lot, except that with the written
consent of two-thirds of the lot owners or by the vote of a majority of the
lot owners present at an annual meeting, or at a special meeting duly called
for such purpose, such tax may be for an amount which shall not exceed a total
of five dollars per annum per lot, and the tax on any one lot shall not exceed
five dollars per annum but the taxes may be levied upon each lot in the first
instance for a sum sufficient for the improvement and care of the lot, but no
greater sum than five dollars shall be collected in any one year. The whole
tax levied may be collected in sums of five dollars in successive years in the
manner herein provided. (2) Notice of such tax shall be served on the lot owners
or where two or more persons are owners of the same lot, on one of them, either
personally, or by leaving it at his residence, with a person of mature age and
discretion, or by mail, if he resides in a city, town or village where the office
of the corporation is not located, or in case the residence or whereabouts of
the owner cannot be ascertained, by publication once a week for four successive
weeks in a newspaper published in the town where such cemetery is located, or
if no newspaper is published in such town then in some newspaper published in
the county where such cemetery is located. (3) If such tax remain unpaid for
more than thirty days after the service of such notice, the president and secretary
of the corporation may issue a warrant to the treasurer of the corporation,
requiring him to collect such tax in the same manner as school collectors are
required to collect school taxes; and such treasurer shall have the same power
and be subject to the same liabilities in executing such warrant as a collector
of school taxes has or is subject to by law in executing a warrant for the collection
of school taxes. (4) If the taxes so levied remain unpaid for five years after
the levying of such tax the amount thereof with interest shall be a lien on
the unused portion of the lot which is subject to such tax, and no portion of
the lot so taxed shall be used by the owner thereof for burial purposes, while
any such tax remains unpaid. (5) If at the expiration of five years from the
date of the service of the first notice of assessment as herein provided, any
such assessment or the interest thereon shall remain unpaid, the corporation
may sell the unused portion of such lot at public auction upon the cemetery
grounds, in the following manner: If the person owning such lot resides within
the state, a written notice, under the seal of such cemetery corporation, if
it have a seal, and the hand of the president or secretary thereof, stating
the amount of such tax or taxes unpaid and that such unused portion of such
lot will be sold at a time therein to be specified, not less than twenty days
from the date of the service of such notice, shall be personally served upon
such owner; if such owner is not a resident of the state, or if the place of
his residence cannot with due diligence be ascertained, or if, for any other
reason satisfactory to the court, personal service cannot with due diligence
be made upon such owner, such cemetery corporation, or any of its officers,
may present a duly verified petition stating the facts to the county court of
the county in which such cemetery lands are situated, or to the supreme court,
and such court may upon satisfactory proof, by its order, direct the service
of such notice in the manner provided by the civil practice law and rules for
the substituted service of a summons. The president or secretary of such corporation,
or any suitable and proper person appointed by it or by the court, upon filing
proof of publication and service of such notice as provided by section three
hundred fourteen of the surrogate’s court procedure act may make such sale,
and such sale may be adjourned from time to time for the accommodation of the
parties or for other proper reasons. Previous notice of such sale shall be posted
at the main entrance of the cemetery. Prior to such sale such corporation shall
cause such lot to be resurveyed and replotted showing the part thereof not used
for burial purposes and only such unused portion shall be sold. The cemetery
corporation may at any such sale purchase any such lots or parts of lots. The
surplus remaining after paying all assessments, interest, cost and charges shall
be set aside by the corporation, as a fund for the care and improvement of the
portion of such lot that has been used for burial purposes. In case the proceeds
of such sale shall amount to more than thirty dollars the person making it shall
make his report, under oath, to the court, of the proceedings and shall state
the amount for which such lot was sold and that it was sold to the highest responsible
bidder, together with the names of the purchasers, and the court may and in
a proper case shall, by order, confirm the sale; in all other cases the person
making such sale shall file in the office of the county clerk of the county
in which the cemetery lands are situated a like report duly verified; on the
filing of such order of confirmation or such report, as the case may be, the
ownership of the unoccupied portion of such lot shall vest in the purchaser
thereof. (6) The directors of any such corporation may make a contract with
a lot owner which shall provide for the payment by him of an agreed gross sum
in lieu of further taxes and assessments and that upon the payment of such gross
sum the lot of such owner shall be thereafter exempt from taxes and assessments.
(g) Purchases through office of general services. Notwithstanding the provisions
of any general, special or local law, any officer or agent of a cemetery corporation
subject to the provisions of this article authorized to make purchases of materials,
equipment or supplies may make such purchases, except of printed material, through
the office of general services subject to such rules as may be established from
time to time pursuant to section one hundred sixty-three of the state finance
law; provided that any such purchase shall exceed five hundred dollars and that
the cemetery corporation for which such officer or agent acts shall accept sole
responsibility for any payment due the vendor. All purchases shall be subject
to audit and inspection by the cemetery corporation for which made. Two or more
cemetery corporations may join in making purchases pursuant to this section
and, for the purposes of this section, such groups shall be deemed a cemetery
corporation.
§ 1510. Cemetery duties
(a) Posting of rules, regulations, charges and prices. The rules, regulations,
charges, and prices of lots, plots or parts thereof shall be suitably printed
and shall be conspicuously posted by the corporation in each of its offices.
For each day in which the corporation fails to post the rules, regulations,
charges and prices the corporation shall be subject to a penalty of twenty-five
dollars which may be recovered in a civil action by the cemetery board. The
cemetery board may waive the payment of the penalty or any part thereof.
(b) Surveys and maps of cemetery. (1) Every cemetery corporation, from time
to time, as land in its cemetery may be required for burial purposes, shall
survey and subdivide such lands and make and file in the office of the corporation
a map thereof, open to public inspection, delineating the lots or plots, avenues,
paths, alleys and walks and their respective designations; a true copy thereof
shall upon its written request, be filed with the cemetery board. Any unsold
lots, plots or parts thereof, in which there are no remains, by order of the
directors, may be resurveyed and altered in shape or size, and properly designated
on such map. (2) Every cemetery corporation shall provide reasonable access
to every lot, plot and grave. This provision shall not be applicable where on
September first, nineteen hundred forty-nine such access cannot be provided
without the disinterment of a body or bodies. A cemetery corporation shall not
permit or allow a body to be interred hereafter in a path, alley, avenue or
walk shown on the cemetery maps or actually in existence. Nothing herein contained,
however, shall prevent a cemetery corporation in special cases from enlarging
a lot by selling to the owner thereof the access space next to such lot, and
permitting interments therein, provided reasonable access to such lot and to
adjoining lots is not thereby eliminated, and provided the approval of the cemetery
board shall have first been obtained.
(c) Record of burials. A record shall be kept of every burial in the cemetery
of a cemetery corporation, showing the date of burial, the name, age and place
of birth of the person buried, when these particulars can be conveniently obtained,
and the lot, plot, or part thereof, in which such burial was made. A copy of
such record, duly certified by the secretary of such corporation, shall be furnished
on demand and payment of such fees therefor as are allowed the county clerk
for certified copies of records.
(d) When burial not to be refused. No cemetery corporation shall refuse or deny
the right of burial and the privileges incidental thereto in any lot, plot or
part thereof to those otherwise lawfully entitled to be buried therein, for
any reason except for the non-payment of interment charges and the purchase
price of the lot, plot or part thereof, in accordance with the terms of the
contract of purchase or except as provided in subdivision (f) of section fifteen
hundred nine of this article.
(e) Removals. A body interred in a lot in a cemetery owned or operated by a
corporation incorporated by or under a general or special law may be removed
therefrom, with the consent of the corporation, and the written consent of the
owners of the lot, and of the surviving wife, husband, children, if of full
age, and parents of the deceased. If the consent of any such person or of the
corporation can not be obtained, permission by the county court of the county,
or by the supreme court in the district, where the cemetery is situated, shall
be sufficient. Notice of application for such permission must be given, at least
eight days prior thereto, personally, or, at least sixteen days prior thereto,
by mail, to the corporation or to the persons not consenting, and to every other
person or corporation on whom service of notice may be required by the court.
(f) Expenses of improving vacant lot. Whenever a person having a lot in a cemetery
shall vacate the same by a removal of all the bodies therefrom, and leave such
lot in an unsightly condition for one month, the corporation may grade, cut,
fill or otherwise change the surface thereof, without reducing the area of the
lot. The expense, not exceeding ten dollars, shall be chargeable to the lot.
If the owners of such lot, within six months after such expense has been incurred,
shall not repay such expense, the corporation may sell the lot at public auction
upon the cemetery grounds, previous notice of such sale having been posted at
the main entrance of the cemetery, and mailed to the owners of such lot at their
last-known post office address, at least ten days prior to the day of sale,
and shall pay the surplus, if any, on demand to the owners of such lot.
(g) Removal or correction of dangerous conditions in cemetery lots. Any plant
life, fencing or embellishment or structure other than a mausoleum, monument
or mound, in a lot, plot or part thereof which becomes so worn, neglected, broken
or deteriorated that its continued existence is a danger to persons or property
within the cemetery grounds may be removed, repaired or corrected by the cemetery
corporation at its own cost and expense, provided it first gives not less than
fifteen days notice by registered or certified mail to the last known owner
at his last known address to repair or remove such object and the said owner
shall fail to repair or remove the object within the time provided in said notice.
In the event of such removal, correction or repair by the cemetery corporation
it shall, within twenty days thereafter, notify the lot owner, by registered
or certified mail addressed to him at his last known address, of the action
taken by the cemetery corporation. Nothing herein contained shall be construed
to affect, supersede or impair any contract, rule or regulation duly approved
by the cemetery board, or right or obligation of the cemetery corporation, nor
shall it be construed as placing any legal duty or obligation to exercise any
right authorized by this subdivision.
(h) Repair or notice as to non-dangerous damage or defacement. Except as otherwise
provided by rule or regulation of the cemetery board pursuant to subparagraph
two-a of paragraph (c) of section fifteen hundred four of this chapter, in the
event a lot, plot or part thereof is substantially damaged or defaced which
does not present a dangerous condition to persons or property, or in the event
a mausoleum, monument or mound in a lot, plot or part thereof is substantially
damaged or defaced, and the correction of such condition is not subject to the
provisions of paragraph (g) of this section, the cemetery corporation within
thirty days of the discovery of this condition may at its own cost and expense
repair the damage or defacement, or if it determines not to do so, the corporation
shall within such thirty day period notify the owner, his or her distributee
or the person filing an affidavit with such corporation pursuant to the provisions
of paragraph (e) of section fifteen hundred twelve of this chapter of such condition
at the last address of such owner, distributee or person appearing on the books
and records of the corporation. The notice shall be sent by first class mail
and a certificate of mailing shall be obtained. Nothing herein contained shall
be construed as establishing any right of damages not otherwise provided by
law, rule or contract in any person against the cemetery corporation for failure
to repair any condition described or give notice thereof as provided for in
this paragraph.
(i) Record of inscriptions to be filed. Whenever, under any general or special
law, any cemetery is abandoned or is taken for a public use, the town board
of the town or the governing body of the city in which such cemetery is located,
shall cause to be made, at the time of the removal of the bodies interred therein,
an exact copy of all inscriptions on each headstone, monument, slab or marker
erected on each lot or plot in such cemetery and shall cause the same to be
duly certified and shall file one copy thereof in the office of the town or
city clerk of the town or city in which such cemetery was located and one copy
in the office of the state historian and chief of the division of history in
the department of education at Albany. In addition to such inscriptions, such
certificate shall state the name and location of the cemetery so abandoned or
taken for a public use, the cemetery in which each such body was so interred
and the disposition of each such headstone, monument, slab or marker.
(j) Grave markers. No cemetery corporation, which provides for the burial of
persons of the Jewish faith, shall promulgate any rule or regulation prohibiting
the use of cement beds as a means of demarcating a specific grave area. Such
cemetery corporations shall provide this service to all persons of the Jewish
faith requesting this method of marking a grave when such grave area is provided
through the agency of a membership or religious corporation or unincorporated
association or society which provides burial benefits for the members. Subject
to the rules and regulations promulgated by the cemetery board, such cemetery
corporations shall establish the schedule of charges to be assessed for installation
and maintenance of cement beds. The schedule of charges shall be filed with
and approved by the cemetery board. Such regulation may require the payment
of the cost of perpetual care as a condition to such installation and maintenance.
The charges assessed shall be paid by the person requesting the service. The
provisions of this paragraph shall only be applicable within the counties contained
within the first, second, tenth and eleventh judicial districts as such districts
are arranged pursuant to section one hundred forty of the judiciary law.
(k) Notice and restoration as to damage and defacement due to vandalism. In
the event a monument is damaged or defaced by an act of vandalism, the cemetery
corporation shall, within thirty days of the discovery of such damage, notify
the owner, his distributee or the person filing an affidavit with such corporation
pursuant to the provisions of paragraph one of subdivision (e) of section fifteen
hundred twelve of this article of such damage in the manner provided in subdivision
(h) of this section. The cost and expense of such notice may be provided from
the fund where such fund exists. If a fund has been established, the cemetery
corporation shall restore the monument with moneys from such fund. If such a
fund has not been established or where such fund is inadequate to restore the
monument, the cemetery corporation may restore such monument at its own cost
and expense. Nothing herein contained shall be construed as establishing any
right of damages not otherwise provided by law, rule or contract in any person
against the cemetery corporation for failure to restore any monument if no monument
maintenance fund exists or if such fund is inadequate to restore such monument.
(l) Removal of monument. No person or organization shall remove a monument without
authorization in the form of a court order from a court of competent jurisdiction,
or without the written authorization of the owner of a burial plot, or the lineal
descendants of the deceased, if such owner or lineal descendants are known,
and without obtaining written approval from a duly incorporated cemetery association,
which association shall keep a record of all such written approvals. The provisions
of this section shall not prohibit the removal, in accordance with rules and
regulations promulgated by the secretary of state, of a monument for the purpose
of repair, nonpayment or adding inscriptions as authorized by a cemetery association
or as permitted in this article. A violation of any provision of this paragraph
shall be punishable by a fine not to exceed five hundred dollars.
(m) Use of construction and demolition debris for burial. No cemetery corporation
or religious corporation having charge and control of a cemetery which heretofore
has been or which hereafter may be used for burials, shall use construction
and demolition debris, as that term is defined in 6 NYCRR 360-1.2, for the purpose
of burying human remains.
§ 1511. Cemetery indebtedness
(a) Certificates of indebtedness. (1) If a cemetery corporation be indebted
for lands purchased for cemetery purposes, or for services rendered or materials
furnished in connection with the necessary and proper preservation or improvement
of its cemetery or for moneys borrowed exclusively for payment of such services
or materials, the directors, by the concurring vote of a majority of their whole
number, with the consent of the creditor to whom such indebtedness is owing,
may issue certificates under the corporate seal, signed by the president and
secretary, for such amount, payable at the times and at the rate of interest
agreed upon but not to exceed six per centum per annum; provided, however, that
there be first obtained from the cemetery board an order approving the issuance
of such certificates. In the case of certificates of indebtedness issued for
moneys borrowed exclusively for payment for services rendered or materials furnished
in connection with the necessary and proper preservation or improvement of its
cemetery the consent of the creditor to whom such indebtedness is owing shall
not be required. (2) Such approval shall be given by the cemetery board only
if it determines that the amount of the certificates proposed to be issued does
not exceed the fair and reasonable value of the services rendered or materials
furnished or the purchase price of real property as fixed in accordance with
subdivision (b) of this section. No certificate issued shall be valid or enforceable
unless there has first been issued by the cemetery board an order of approval
as herein provided. No certificate shall be for less than one hundred dollars.
The certificate shall be transferable by delivery, unless therein otherwise
provided. (3) The directors shall keep an account of the number and amount of
such certificates, the persons to whom issued, the date of maturity, the rate
of interest and the purpose for which the same were issued. Each cemetery corporation
shall file with the cemetery board a verified statement setting forth all changes
in such account during the previous calendar or fiscal year. (4) The directors
shall set aside from the proceeds of sales of lots, plots and parts thereof
such sums to pay such certificates at maturity as they deem necessary. Until
the certificates are paid the holders thereof shall be entitled at all meetings
of the corporation, to one vote for each one hundred dollars of indebtedness
remaining unpaid, except that those certificates of indebtedness issued for
moneys borrowed exclusively for payment of services or materials shall have
no voting power. The certificates shall not be a lien upon any lot, plot or
part thereof belonging to a lot owner.
(b) Application of proceeds of sales of lots. (1) At least one-half of the proceeds
of sales of lots or the use thereof remaining after the deductions for the portion
thereof required to be deposited in the permanent maintenance fund and current
maintenance fund together with the expenses of sale shall be applied by a cemetery
corporation to the payment of the purchase price of the real property acquired
by it. The remainder of such proceeds shall be applied by the corporation to
preserving, improving and embellishing the cemetery grounds and the avenues
and roads leading thereto, and to defraying its expenses and discharging its
liabilities. After the payment of such purchase price, and the expense of surveying
and laying out the cemetery, all the proceeds of such sales shall be applied
to the improvement, preservation and embellishment of the cemetery and to such
expenses and liabilities. (2) Where a corporation has agreed with a person from
whom any such lands were purchased to pay therefor a specified share not exceeding
one-half of the proceeds of sales of lots therein or the use thereof, such corporation
may continue to make payments as so agreed, provided however that there be first
deducted from said proceeds of sales the amount required to be deposited in
the permanent maintenance fund and current maintenance fund as aforesaid together
with the expenses of sale. The balance of such proceeds shall continue to be
applied by the corporation to the preservation, improvement and embellishment
of the cemetery, and the expenses and liabilities of the corporation. Where
the corporation has heretofore agreed to pay a specified share of the proceeds
as aforesaid in payment of the purchase price of land, the prices of lots or
the use thereof in force when such purchase was made, shall not be changed,
while the purchase price remains unpaid, without the written consent of a majority
in interest of the persons from whom the lands were purchased or their legal
representatives. (3) A corporation which has heretofore issued certificates
of land shares which entitle the owner to a specified share in the proceeds
of the sale of lots, may purchase such certificates with its surplus or reserve
funds and hold such certificates for the benefit of its surplus or reserve funds,
but such certificates may not thereafter be sold or reissued.
(c) Certificates of stock formerly issued. If a cemetery corporation, incorporated
under a law repealed by the membership corporations law, prior to September
first, eighteen hundred ninety-five, converted its outstanding indebtedness
or certificates of indebtedness into certificates of stock, in pursuance of
law, no interest shall accrue to the holders of such stock, but they shall receive
annually or semi-annually a dividend thereon for their proportional part of
the entire surplus or net receipts of the corporation over and above current
expenses; or if the proportion of the net receipts or surplus which stockholders
shall be entitled to receive shall have been fixed by agreement at the time
of issuing such stock, such stockholders shall be entitled to receive dividends
in accordance with such agreement. Such certificates of stock shall be transferable
only on the books of the corporation on the surrender of the certificate, unless
otherwise provided on the face thereof, and on every such surrender a new certificate
of stock shall be issued to the person to whom the same has been transferred;
and the holders of such stock shall be entitled, in person or by proxy, to one
vote for every share thereof, at each meeting of the corporation. A register
of the stock issued by the corporation shall be kept by its directors showing
the date of issue, the number of shares, the par value thereof, the name of
each person to whom issued, the number of the certificates therefor; and all
transfers of such stock shall be noted and entered in such register, and the
certificates surrendered shall be deemed canceled by the issue of a new certificate,
and the surrendered certificate shall be destroyed. Any director may become
the holder or transferee of such stock for his own individual use or benefit.
No such stock shall be a lien on the lot of any individual lot owner within
the cemetery limits; and no other or greater liability of the corporation issuing
such stock shall be created or deemed to exist than may be necessary to enforce
the faithful application of the surplus or net receipts of the corporation to
and among the holders of the stock in the manner hereinbefore specified. A cemetery
which has heretofore issued such certificates of stock is a membership corporation
and not a stock corporation.
(d) Retirement of certificates of stock of certain cemetery corporations. If
a cemetery association, incorporated under a law repealed by chapter five hundred
fifty-nine of the laws of eighteen hundred ninety-five has changed certificates
of indebtedness into certificates of stock, pursuant to chapter one hundred
seven of the laws of eighteen hundred seventy-nine, and such stock remains unimpaired,
such association may retire such stock and issue in exchange therefor certificates
of indebtedness representing the par value of such stock, such certificates
of indebtedness to bear interest at a rate not exceeding six per centum per
annum from the date of the last preceding dividend payment; provided, however,
the exchange of such stock for certificates of indebtedness shall be authorized
at a duly called meeting of such association by the affirmative vote of at least
two-thirds of the stock issued and outstanding and of at least two-thirds of
all votes cast at such meeting in favor of such exchange. Any holder of such
stock not voting in favor of the exchange of such stock for certificates of
indebtedness may at any time prior to the vote upon such exchange, or if notice
of the meeting to vote upon such exchange was not mailed to him at least twenty
days prior to the taking of such vote, then within twenty days after the mailing
of such notice, object to such exchange and demand payment for his stock and
thereupon such stockholder or the corporation shall have the right, subject
to the same conditions and provisions contained in section six hundred twenty-three
of the business corporation law, to have such stock appraised and paid for as
provided in such section. Such objection and demand must be in writing and filed
with the corporation. The provisions of this section relating to certificates
of indebtedness and the rights of the holders thereof shall apply to certificates
of indebtedness issued as provided in this subdivision. The stocks so retired
shall not be reissued by such association and it shall have no right thereafter
to issue any certificates of stock.
(e) Purchase, retirement and exchange of stock. (1) A cemetery corporation which
has issued certificates of stock, pursuant to chapter one hundred seven of the
laws of eighteen hundred seventy-nine, or chapter two hundred sixty-seven of
the laws of eighteen hundred ninety-four, may purchase such certificates of
stock with its surplus or reserve funds, and hold such certificates for the
benefit of its surplus or reserve funds, but such certificates of stock so purchased
may not thereafter be sold or reissued. (2) A cemetery corporation which has
issued certificates of stock may also effect the retirement of such stock as
follows: The board of directors of such corporation shall adopt by vote of a
majority of the entire number of such directors a plan for such retirement which
shall include the fixing of a price which the corporation will pay for all shares
of stock then outstanding, which price shall, in the opinion of such directors,
represent the fair value of such stock. The said plan shall be submitted to
a duly called meeting of the members of such corporation and, if approved by
the affirmative vote of at least two-thirds of all votes cast at such meeting,
including the affirmative vote of the holders of record of at least two-thirds
of all shares of stock issued and then outstanding exclusive of any shares of
stock held by the corporation, shall become binding upon all stockholders, and
they shall proceed to transfer and surrender to the corporation their certificates
of stock and to receive payment therefor in accordance with the terms of such
plan. Any holder of shares of such stock not voting in favor of such plan may
at any time prior to the vote approving such plan, or if notice of the meeting
to vote upon such plan was not mailed to him at least twenty days prior to the
taking of such vote, then within twenty days after the mailing of such notice,
but in any event within ten days after the taking of such vote, by written notice
filed with such corporation, object to such plan and demand appraisal of his
shares. Thereupon, such stockholder or the corporation shall have the right,
subject to the same conditions and provisions contained in section six hundred
twenty-three of the business corporation law, to have such stock appraised and
paid for as provided in such section. (3) A cemetery corporation which has issued
certificates of stock may also effect the exchange of such stock as follows:
The board of directors of such corporation shall adopt by a vote of a majority
of the entire number of such directors a plan for the exchange of all shares
of stock then outstanding for a like number of participating certificates. Such
participating certificates shall entitle the owners to a specified share not
exceeding, collectively, one-half of the proceeds of sales of lots therein or
the use thereof after first deducting from such proceeds of sale the amount
required to be deposited in the permanent maintenance fund and current maintenance
fund as provided in and pursuant to subdivision (a) of section fifteen hundred
seven of this article, together with the expenses of sale. Such plan shall then
be submitted to the cemetery board for its approval. In making its determination
the cemetery board shall consider and may condition its approval on the purposes
of this section. Thereafter, if the cemetery board approves such plan, or in
the event the cemetery board conditioned its approval and the conditions imposed
have been accepted by a vote of a majority of the entire board of directors
of the corporation, such plan shall be submitted to a duly called meeting of
the members of such corporation, and, if approved by the affirmative vote of
at least two-thirds of all votes cast at such meeting, including the affirmative
vote of the holders of record of at least ninety per centum of all shares of
stock issued and then outstanding exclusive of any shares of stock held by the
corporation, shall become binding upon all stockholders. The stockholders shall
then proceed to transfer and surrender to the corporation their shares of stock
and to receive in exchange therefor participating certificates in accordance
with the terms of such plan. Any holder of shares of such stock not voting in
favor of such plan may at any time prior to the vote approving such plan, or
if notice of the meeting to vote upon such plan was not mailed to him at least
twenty days prior to the taking of such vote, then within twenty days after
the mailing of such notice, but in any event within ten days after the taking
of such vote, by written notice filed with such corporation, object to such
plan and demand appraisal of his shares. Thereupon, such stockholder or the
corporation shall have the right, subject to the same conditions and provisions
contained in section six hundred twenty-three of the business corporation law,
to have such stock appraised and paid for as provided in such section. Each
such participating certificate issued in exchange for a share of stock shall
entitle the holder thereof to one vote for each certificate at all meetings
of the corporation. The prices of lots or the use thereof at the time when such
exchange is made shall not be changed, while such participating certificates
remain outstanding, without the written consent of a majority in interest of
the holders thereof except as now or hereafter authorized by law. The shares
of stock so exchanged shall not be reissued by such corporation and it shall
have no right thereafter to issue any shares of stock.
(f) Exchange of certificates for shares. The directors of a cemetery corporation,
which has issued certificates for shares, from time to time by resolution, may
fix the value of each of such shares and authorize the acceptance by the corporation
of such certificates at the value so fixed in payment for land. All certificates
so accepted shall be immediately cancelled and shall not be again issued.
§ 1512. Rights of lot owners
(a) Lots; indivisible and inalienable. All lots, plots or parts thereof, the
use of which has been conveyed as a separate lot, shall be indivisible, except
with the consent of the lot owner or lot owners and the corporation, or as in
this section provided. After a burial therein, the same shall be inalienable,
except as otherwise provided.
(b) Interest of deceased lot owner. Upon the death of an owner or co-owner of
any lot, plot or part thereof, unless the same shall be held in joint tenancy,
or tenancy by the entirety, the interest of the deceased lot owner shall pass
to the devises of such lot owner, but, if such interest be not effectually devised,
then to his or her descendants then surviving, and if there be none, then to
the surviving spouse, and if there be none, then to those entitled to take the
real and personal property of the deceased lot owner pursuant to article four
of the estates, powers and trust law provided, however, that no interest in
any lot, plot or part thereof shall pass by any residuary or other general clause
in a will and such interest shall pass by will only if the lot, plot or part
thereof sought to be devised is specifically referred to in such will. The surviving
spouse of a deceased lot owner during his or her life and the owners from time
to time of the deceased lot owner’s lot, plot or part thereof, shall have
in common the possession, care and control of such lot, plot or part thereof.
(c) Purchase for burial of decedent. Whenever a lot, plot or part thereof shall
be purchased by the executor, administrator or representative of a decedent
from estate funds for the burial of the decedent, the surviving spouse of the
decedent shall have the right of interment therein, and the deed shall run to
the names of the distributees, other than the surviving spouse, of the decedent,
or to “The distributees, other than the surviving spouse, of ............,
deceased”, if there be such surviving spouse, otherwise to “The distributees
of ............, deceased.” If the deed shall run to “The distributees,
other than the surviving spouse of ............, deceased,” or to “The
distributees of ............, deceased,” the executor, administrator or
representative shall, at the time of delivery of the deed to such lot, plot
or part thereof, file with the corporation an affidavit setting forth the names
and places of residence of all the decedent’s distributees, and the corporation
shall be entitled to rely upon the truth of the statements contained in such
affidavit.
(d) Right of interment. A deceased person shall have the right of interment
in any lot, plot or part thereof of which he or she was the owner or co-owner
at the time of his or her death, or in any tomb erected thereon. The surviving
spouse shall have the right of interment for his or her body in a lot or tomb
in which the deceased spouse was an owner or co-owner at the time of his or
her death, except where all the available burial spaces in a lot or tomb have
been designated for the interment of persons other than the surviving spouse,
pursuant to subdivision (f) of this section, and a right to have his or her
body remain permanently interred or entombed therein, except, that such body
may be removed therefrom as provided in subdivision (e) of section fifteen hundred
ten of this article. Such right may be enforced and protected by his or her
personal representatives. The remains of a spouse, parent or child of a person
who is an owner or co-owner thereof may be interred in such lot or tomb without
the consent of any person claiming any interest therein, subject, however, to
the following rules and exceptions: (A) The place of interment in such lot shall
be subject to the reasonable determination by a majority of the co-owners or
in the absence of such determination by the cemetery corporation or its officer
or agent having immediate charge of interments. (B) Any husband or wife living
separate from the other and owning a lot in which the other, but for this section,
would have no right of burial, at least thirty days before the death of the
other, may file with the cemetery corporation a written objection to the interment
of the other, and thereupon there shall be no right of interment under this
subdivision. (C) A parent or child owning a lot in which the other would have
no right of burial but for this section, at least thirty days before the death
of the other, may file with the cemetery corporation a written objection to
the interment of the other, and thereupon there shall be no right of interment
under this subdivision. In such case, if the parent or child so excluded from
burial in such lot shall die without having any place of interment, then the
person filing such objection shall at once provide for the other a suitable
place of burial in a convenient cemetery. The cost of such place of interment
shall be chargeable to the decedent’s estate, if any. (D) This section
shall not permit a burial in any ground or place contrary to or in violation
of any precept, rule, regulation or usage of any church or religious society,
association or corporation restricting burial therein. This subdivision shall
not limit any existing right of burial under other provisions of law, nor shall
it limit or curtail the right of alienation, under the rules of the cemetery
corporation wherein such lot is situated, by the owner of a lot before the death
of the person for whose remains the right of burial is provided herein, and
there shall be no right of burial in any lot sold by its owner, before the death
of the person for whose remains the right of burial is provided herein.
(e) More than one person entitled to possession and control. (1) At any time
when more than one person is entitled to the possession, care and control of
such lot, any of the persons so entitled thereto may file with the corporation
an affidavit setting forth the names and places of residence of all the persons
entitled to the possession, care and control of such lot, and the corporation
shall be entitled to rely upon the truth of the statements contained in such
affidavit. The corporation shall be entitled to collect a reasonable fee for
filing and recording such affidavit and other documents filed in its office.
(2) At any time when more than one person is entitled to the possession, care
or control of such lot, plot or part thereof, the persons so entitled thereto
shall file with the corporation a designation of a person who shall represent
the lot, plot or part thereof, and so long as they shall fail to designate,
the corporation may make such designation. A distributee may release his or
her interest in a lot, plot or part thereof, to the other distributees, and
a joint owner may release or devise to the other joint owners, his or her right
in the lot, plot or part thereof, on conditions specified in the release or
will, the original or certified copy of which shall be filed in the office of
the corporation. The surviving spouse not excluded from the right of burial
under the provisions of subdivision (d) of this section, at any time may release
his or her right in such lot, plot or part thereof, but no conveyance or devise
by any other person shall deprive him or her of such right.
(f) Designation of persons who may be interred. At any time all the owners of
a lot, and any surviving spouse having a right of interment therein, may execute,
acknowledge and file with the corporation an instrument, and the sole owner
of a lot may, in a testamentary instrument admitted to probate, make a provision,
which may (A) designate the person or persons or class of persons who may thereafter
be interred in said lot or in a tomb in such lot and the places of their interment;
(B) direct that upon the interment of certain named persons, the lot or tomb
in such lot shall be closed to further interments; (C) direct that the title
of the lot shall upon the death of any one or more of the owners, descend in
perpetuity to his, her or their distributees, unaffected by any devise. In any
case in which an irrevocable designation of a person, persons or class of persons
who may be interred in any lot or tomb has been made pursuant to this subdivision
and in which the designated person or persons, or all of the known class of
designated persons, have died and have not been buried in the places designated
in said lot or tomb, or have by a written instrument duly signed and acknowledged
and filed with the corporation, renounced the right of interment pursuant to
such designation, then, and in any such event, the then owner or owners of said
lot or tomb and any surviving spouse having the right of interment therein,
may designate another person or persons or class of persons who may thereafter
be interred in said lot or in a tomb in said lot, and the places of their interment,
unless the original designation clearly indicated not only that it was irrevocable,
but also that no further designations were to be made. Any designation provided
for by this subdivision except a designation by testamentary instrument, shall
be deemed revocable unless such instrument provides otherwise. In the event
an owner or co-owner of a lot is under the age of eighteen years, any designation
provided for by this subdivision, except a designation by testamentary instrument,
may be executed and acknowledged by the parent or general or testamentary guardian
for and on behalf of such owner or co-owner, provided, however, that no such
designation may be made unless a place of interment shall remain available in
said lot or in a tomb in such lot for the interment of each owner or co-owner
of the lot under the age of eighteen years, and any designation so made may
be revoked by the owner or co-owner upon reaching the age of eighteen years
except with respect to burials effected before that time. A designation made
by a parent or guardian on behalf of an infant owner or co-owner who is over
the age of fourteen years must contain the written consent of such infant owner
or co-owner.
(g) Lot owner voting. Each owner of full age of a lot in the cemetery of the
corporation, as shown in the records of the cemetery at the time of the purchase
of the lot from the corporation, or if there be two or more owners, then one
of them designated in writing by a majority of them, may cast, in person or
by proxy, one vote at meetings of the corporation in respect to each such lot
so owned. At such meetings, each owner of a certificate of stock heretofore
lawfully issued shall be entitled to one vote for each share of stock owned
by him and each owner of a certificate of indebtedness shall be entitled to
one vote for each one hundred dollars of such indebtedness remaining unpaid.
No lot owner shall be entitled to vote unless all assessments against the lot
of such owner shall have been paid. A quorum for the transaction of business,
unless the certificate of incorporation or by-laws otherwise provide, shall
be five members entitled to vote at the meeting. In the event a lot owner has
executed a proxy which has been in effect for five or more years, the cemetery
corporation shall not honor such proxy unless it is presented with proof that
the lot owner has been sent a written notice at the address listed in the records
of the corporation at least thirty days prior to the meeting at which the proxy
is to be exercised advising the lot owner that the proxy is still effective.
The notice shall identify the date, time and place of such meeting, and the
name of the person holding the proxy and shall state that it may, unless the
proxy provides otherwise, be terminated at any time. Such notice need not be
mailed more frequently than every fifth year.
§ 1513. Sale of burial rights
(a) Conveyance of lots. (1) Except as otherwise provided in this subdivision
the right to use any lot, plot or part thereof may be sold or conveyed only
by the cemetery corporation. (2) It shall be unlawful for any person, firm or
corporation to purchase or for a cemetery corporation to sell a lot, plot or
part thereof for the purpose of resale. This provision, however, shall not prohibit
the sale to its members of lots, plots or parts thereof, or the right to use
any lot, plot or part thereof, by a membership or religious corporation or unincorporated
association or society which provides burial benefits for its members. (3) It
shall be unlawful for a cemetery corporation to pay or offer to pay, or for
any person, firm or corporation to receive, directly or indirectly, a commission,
bonus, rebate or other things of value for, or in connection with, the sale
of any lot, plot or part thereof, or the sale of space in a public mausoleum,
or the furnishing by or through the cemetery corporation of any service, merchandise,
wares, goods or articles. The provisions of this paragraph shall not apply to
a person regularly employed and supervised by the cemetery corporation. (4)
A violation of this subdivision shall constitute a misdemeanor and shall be
punishable by a fine of not more than five hundred dollars or not more than
six months imprisonment or both. Each violation shall constitute a separate
offense.
(b) Prices for burial rights and instruments of conveyance. (1) The directors
must fix and determine the prices of the burial lots, plots or parts thereof,
and keep a plainly printed copy of the schedules of such prices conspicuously
posted in each of the offices of the corporation, open at all reasonable times
to inspection, and shall file a schedule of such prices in the office of the
cemetery board. (2) Unless its certificate of incorporation or by-laws otherwise
provide, and subject to its rules and regulations, the corporation shall sell
and convey to any person the use of the lots, plots or parts thereof designated
on the map filed in the office of the corporation, on payment of the prices
so fixed and determined, but need not sell and convey more than one lot, plot
or part thereof to any one person. Conveyances of lots, plots and parts thereof
shall be signed by the president or vice-president and treasurer or assistant
treasurer of the corporation. A written contract for the sale or use of a lot,
plot or part thereof shall have attached thereto and made a part thereof a copy
of the rules and regulations of the cemetery corporation or such parts of such
rules and regulations as relate to the size and placement of monuments, restrictions
on plot usage, warranties, obligations of the cemetery corporation and financial
obligations and duties of the lot owner. If a lot, plot or part thereof is sold
without a written contract, the corporation shall, before any part of the purchase
price is paid by the purchaser, deliver to the purchaser a copy of the rules
and regulations or such parts thereof as would be required to be attached to
a written contract. Nothing in this subdivision shall prevent the subsequent
amendment of such rules and regulations to increase the charges for services
rendered by the corporation or in other particulars by or with the consent of
the cemetery board under section fifteen hundred nine of this article. (3) A
cemetery corporation that shall sell a lot, plot or part thereof, in excess
of the price shown on the schedule filed in the office of the cemetery board,
and any person acting for or on behalf of the cemetery corporation in connection
with such sale, shall each forfeit to the people of the state of New York a
sum equivalent to three times the excess amount so paid. Such penalty may be
recovered in a civil action by the cemetery board. (4) The instrument of conveyance
of any burial lot, plot or part thereof shall include the actual amount paid
therefor and a description showing the dimensions of the property conveyed,
and the plot number, section and block number as they appear on the cemetery
map.
(c) Resale by lot owner. Before any burial shall have been made in any such
lot, plot or part thereof, or, if all the bodies therein have been lawfully
removed, the lot owner may sell or convey such lot, plot or part thereof subject
to the prior approval of the cemetery board. Such approval shall not be granted
unless the owner of such lot, plot or part thereof shall have offered it to
the cemetery corporation within two years prior to the application for such
approval, in writing by registered or certified mail, at the price paid therefor
by said lot owner, together with simple interest at the rate of four per centum
per annum, and the cemetery corporation shall have failed to accept such offer
within thirty days after the making thereof. In the event the lot owner shall
have acquired the lot, plot or part thereof other than by purchase, and provided
the cemetery corporation and the lot owner cannot agree upon a price, the cemetery
board shall fix a price therefor. In arriving at the price the cemetery board
shall take into consideration the original price for which the cemetery corporation
sold the lot, plot or part thereof, and any other circumstances or factor which
equitably relates to the price. The secretary of the cemetery corporation shall
file and record in its books all instruments of transfer. An owner may convey
or devise to the corporation his right and title in and to any such lot, plot
or part thereof.
(d) Lots held in inalienable form. (1) No portion of the cemetery of a cemetery
corporation which any person other than the corporation is entitled to use for
burial purposes, or in which bodies have been buried and not removed, shall
be sold, mortgaged or leased by the corporation. A cemetery corporation may
convey any lot so that upon such conveyance, or after an interment therein,
such lot shall be forever inalienable, and upon the death of the lot owner shall
pass to such person or persons as may be designated in the conveyance or if
no such designation be made, shall descend as provided in section fifteen hundred
twelve of this article. Any one or more of the owners of such a lot may release
or devise to any other owner of the lot his interest therein on such conditions
as shall be specified in the release or will. (2) Any person who is the sole
owner of the burial rights in a cemetery lot, plot or any part thereof, in which
a burial has been made, may give his entire interest, or, if not prohibited
by the rules and regulations of the cemetery corporation, any portion thereof
to any person within the third degree of consanguinity to the owner, or, in
the event that no such person exists, within the fourth degree of consanguinity
to such owner. Such conveyance shall be made subject to the right of interment
of the spouse of any deceased owner, which right said spouse may release at
any time, but no conveyance or devise by any other person shall deprive the
surviving spouse of such right. Burial rights shall not be conveyed pursuant
to the provisions of this subparagraph more frequently than once in any ten-year
period. (3) A cemetery corporation may take and hold any lot conveyed or devised
to it by the lot owner so that thereafter it will be inalienable, and the interments
therein shall be restricted to such person or class of persons as may be designated
in the conveyance or devise. (4) The title of a lot owner shall not be affected
by the dissolution of the corporation, by nonuser of its corporate rights and
franchises by any act of forfeiture on its part, by any alienation of its property
or by incumbrance thereon made or suffered by it.
§ 1514. Misdemeanor; general
penalty
Wherever under the provisions of this article a person violating any part thereof
is deemed to be guilty of a misdemeanor and no specific penalty is provided,
the penalty for each separate violation shall be imprisonment for not more than
six months or a fine of not more than five hundred dollars, or both.
§ 1515. Actions affecting cemetery
corporations
In any action or proceeding affecting or instituted by any cemetery corporation
the cemetery board shall be served with notice thereof in the same manner as
any necessary party and shall take such steps in the action or proceeding as
it may deem necessary to protect the public interest.
§ 1516. Sale of monuments
(a) No cemetery corporation shall engage in the sale of monuments, not including
flush bronze markers, nor shall such monuments be displayed for sale on the
property of a cemetery corporation.
(b) No cemetery corporation shall authorize or permit any employee or director
thereof to advertise or make known his or her relationship to such corporation
while engaged in the sale of monuments outside of his or her employment by the
cemetery corporation.
(c) With regard to the sale of flush granite markers, the cemetery board shall
adopt reasonable rules and regulations to exempt cemetery corporations from
the provisions of paragraph (a) of this section where a practice for the sale
of such flush granite markers was established with the knowledge and approval
of the cemetery board prior to the effective date of this section.
MUNICIPAL
LAW
ARTICLE 8—CEMETERIES
§ 160. Acquisition of lands for cemetery purposes
It shall be lawful for the common council of any city, or the trustees of any
incorporated village in this state, although such cemetery is disconnected from
and out of the limits of any city or village, to acquire by deed, devise or
otherwise, such land as it may require for burial purposes and the proper ornamentation
in connection therewith, or land for such purposes, in addition to such land
as it may already hold, or is authorized to hold; and to hold, use and possess
the same in like manner with the like rights, privileges and authority, and
subject to the like duties and liabilities as apply to the other lands so held
by said city or village.
The provisions of this section shall not apply to the counties of New York,
Kings, Queens and Westchester.
§ 161. Title may be acquired
by condemnation
If the said common council or board of trustees shall be unable to agree with
the owner of such lands for the purchase thereof, the said common council or
board of trustees may proceed to acquire the title thereto in the manner prescribed
by the condemnation law. [FN1] The amount paid for such lands, by such common
council or board of trustees as aforesaid, and all the expenses attending the
same, with the expenses of fencing and improving the same, shall be assessed
and collected by a general tax upon all the taxable property of such city or
village, in the same manner as other city or village taxes are assessed and
collected.
§ 162. Conveyance by unincorporated cemetery association
to city, town or village
An unincorporated cemetery association may convey and transfer its real property
held for burial purposes, together with its other assets, to a city having a
population of less than one million inhabitants in which such real property
is located, or to a village, provided such real property is located within such
village or wholly within three miles of the boundaries thereof, or to a town,
in which such real property is located, if all the directors and trustees of
such association living and residing in the state unite in the conveyance and
transfer. Such conveyance and transfer shall be subject to all agreements as
to lots sold and all trusts, restrictions and conditions upon the title or use
of such real property and assets. Lots previously sold and grants previously
made for burial purposes shall not be affected by such conveyance, nor shall
any grave, monument or other erection or any monuments be disturbed or removed
except in accordance with law. No such conveyance shall be effective unless
and until the legislative body of such city, town or village shall by ordinance
or local law or resolution accept the same subject to the conditions and restrictions
hereinabove imposed, which ordinance or local law or resolution said legislative
body is hereby authorized and empowered to adopt by a majority vote of such
body. Upon such conveyance and transfer such property shall be and become a
municipal cemetery of such city, town or village and such property and assets
so conveyed and transferred shall be administered as any other municipal cemetery
of such city, town or village and the said cemetery association shall be dissolved
by the recording of such conveyance and transfer.
§ 163. Lot owners’ rights
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 or her heirs-at-law
or devisees, subject, however to the following limitations and conditions: If
survived by a spouse and children, they shall have in common the possession,
care and control of such lot during the life of the surviving spouse. If survived
by a spouse and no children, he or she shall have the possession, care and control
of such lot during his or her life. If survived by children and no spouse, 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. The parties having such
possession, care and control of such lot during the term thereof, may erect
a monument and make other permanent improvements thereon. The surviving spouse
shall have the right of interment for his or her body in such lot, or in a tomb
in such lot, and a right to have his or her body remain permanently interred
or entombed therein, except that such body may be removed therefrom to some
other family lot or tomb with the consent of the heirs. At any time when more
than one person is entitled to the possession, care or control of such lot,
the persons so entitled thereto shall designate in writing to the clerk of the
corporation which of their number shall represent the lot, and on their failure
to designate, the board of trustees or directors or commissioners of the corporation
or commission shall enter of record which of said parties shall represent the
lot, while such failure continues. The surviving spouse may at any time release
his or her right in such lot, but no conveyance or device by any other person
shall deprive the surviving spouse of such right.
§ 164. Abandonment of cemeteries
in cities of less than one million
Upon a verified petition presented to a judge of a court of record by the common
council of any city of less than one million, the judge to whom said verified
petition was presented shall make an order to show cause, returnable before
him at a time and place within the county in not less than twenty days from
the date of presentation of said petition, why the remains of any deceased person
buried in potters field, or in any neglected or abandoned cemeteries in which
no deceased person shall have been interred within twenty years, should not
be removed to and reinterred in a properly kept incorporated cemetery in the
same city or in a town or city adjoining the city in which the remains of each
deceased person or persons are buried, or in lands owned by said city for cemetery
purposes, and to fix the amount of expenses for such removal and reinterment
and the order to show cause shall provide for its publication in a newspaper,
to be designated in the order, which is published nearest to the cemetery from
which the removal is to be made, once in each week for two successive weeks.
The verified petition presented to the judge shall show that the petitioner
is the common council of the city in which said cemetery is located and (1)
the name of the deceased person or persons whose remains are sought to be removed,
if known; (2) the name and location of the cemetery in which he is interred
and from which removal is asked to be made; (3) the name and the location of
the incorporated cemetery to which the remains are desired to be removed and
reinterred; (4) the facts showing the reasons for such removal. Upon the return
day of the order to show cause and at the time and place fixed in said order,
upon filing proof of publication of the order to show cause with the judge,
if no objection is made thereto, he shall make an order directing the removal
of the remains of said deceased person or persons to the cemetery designated
in the petition within the city or within a town or city adjoining said city
in which the remains are then buried and shall specify in the order the amount
of the expenses of such removal, which expenses of removal and reinterment,
including the expense of the proceeding under this section, shall be a charge
upon the city in which the cemetery is situated from which the removal is made
and such expenses shall be a city charge and audited and paid in the same manner
as other charges. On or after the removal and reinterment of the remains of
any deceased person or persons, the expenses for annual care of the grave in
the cemetery to which the removal is made shall be annually provided by the
city in which the remains were originally buried at a rate not to exceed fifty
cents per grave, and shall be paid annually to the incorporated cemetery association
to which the remains of each deceased person may be removed or reinterred unless
said remains have been removed to lands owned by said city for cemetery purposes,
in which case such payment shall be made under the provisions of the city ordinance
providing for the care and upkeep of said cemetery lands owned by said city.
Any city owning a lot or lots in a cemetery maintained by an incorporated cemetery
association in which the remains of the deceased persons have been or may be
buried pursuant to this section, however, may pay such association an amount
sufficient to provide perpetual care therefor. The petition and order shall
be filed in the county clerk’s office of the county in which the remains
of the deceased person were originally interred, and the service of a certified
copy of the final order upon the cemetery association shall be made prior to
any removal. Any relatives of the deceased person or the officer of any cemetery
association in which the remains of deceased person were originally interred
may oppose the granting of said order and the judge shall summarily hear the
statement of the parties and make such order as the justice and equity of the
application shall require. Any headstone or monument which marks the grave of
the deceased person shall be removed and reset at the grave in the cemetery
to which the removal is permitted to be made and in each case the final order
shall provide the amount of expenses of such removals and reinterment and resetting
of the headstones or monument, including the expenses for the proceedings under
this section; except that where provision is otherwise made for the purchase
or erection of a new headstone, monument or marker at the grave in the cemetery
to which said removal is permitted, such old headstone or monument need not
be so removed and reset in which case the final order shall not provide for
the expense of resetting. The order shall designate the person or persons having
charge of the removals or reinterments. Upon completion of the removal, reinterment
or resetting the headstones or monuments, the person or persons having charge
of same shall make a verified report of the removal, reinterment, and resetting
of the headstone or monument and file the report in the clerk’s office
of the proper county.
After said bodies shall have been removed and reinterred in the manner prescribed
by said order, said lands in which such deceased persons were originally interred
shall be available for and subject to such uses for city purposes as the common
council of such city may determine and may be conveyed or otherwise disposed
of in the same manner as other city lands.
§ 165. Maintenance and cleanup
of abandoned cemeteries
1. Any municipal corporation is hereby authorized and empowered to establish
volunteer cemetery maintenance and cleanup programs to maintain and cleanup
abandoned cemeteries wholly contained within such municipal corporation for
which such municipal corporation has the primary responsibility to provide care.
2. The cemetery division of the department of state is hereby authorized and
directed to assist any municipal corporation in the organization, implementation
and administration of a volunteer cemetery maintenance and cleanup program at
the request of such municipal corporation. The department of state is hereby
authorized and directed to promulgate rules and regulations setting forth the
manner and form of such assistance and request.
3. No municipal corporation which establishes a volunteer cemetery maintenance
and cleanup program shall be liable for any damages sustained by any person
participating and no cause of action for such damages shall be adjudicated by
any court in this state which would otherwise have jurisdiction to adjudicate
such claim.
4. Any municipal corporation which establishes a volunteer cemetery maintenance
and cleanup program shall provide written notice of the provisions of subdivision
three of this section to each person participating in such program.
§ 166. Cemetery and funeral home combinations
1. No municipal corporation shall, directly or indirectly:
(a) sell, or have, enter into or perform a lease of any of its real property
dedicated to cemetery purposes or adjacent thereto to a funeral entity, or use
any of its property for location of a funeral entity;
(b) commingle funds used for cemetery purposes with a funeral entity;
(c) direct or carry on its cemetery related business or affairs with a funeral
entity;
(d) authorize control of its cemetery related business or affairs by a funeral
entity;
(e) engage in any sale or cross-marketing of goods or services with a funeral
entity;
(f) have, enter into or perform a management or service contract for cemetery
operations with a funeral entity; or
(g) have, enter into or perform a management contract with any entity other
than a not-for-profit or religious corporation, or governmental entity.
2. Only the provisions of paragraphs (a) and (b) of subdivision one of this
section shall apply to municipal corporations with thirty acres or less of real
property dedicated to cemetery purposes, and only to the extent the sale or
lease is of real property dedicated to cemetery purposes, and such cemeteries
shall not engage in the sale of funeral home goods or services, except if such
goods and services are otherwise permitted to be sold by cemeteries.
3. For the purposes of this section, “funeral entity” means a person,
partnership, corporation, limited liability company or other form of business
organization providing funeral home services, or owning, controlling, conducting
or affiliated with a funeral home, any subsidiary thereof or any officer, director
or stockholder having a ten per centum or greater proprietary, beneficial, equitable
or credit interest in a funeral home.
GENERAL
BUSINESS LAW
ARTICLE 28-A—CEMETERY PROPERTY AND FUNERAL SERVICES
§
450. Unlawful acts relating to sales of cemetery property
The sale or procuring any agreement for sale of cemetery lots or plots, or of
crypts or niches in a community mausoleum, or niches in a columbarium or crematorium,
upon the promise, representation or inducement of re-sale at a financial profit
is hereby prohibited. Any person or individual who shall make, or attempt to
make, either on his own behalf or on behalf of another a sale conveyance or
agreement contrary to the provisions of this act shall be guilty of a misdemeanor.
§ 450-a. Unauthorized sale of
cemetery markers and flag holders
Except for a veterans’ organization, those businesses which normally carry
on such trade, or are authorized by veterans’ organizations to do so, it
shall be unlawful for any person, firm, association or corporation to engage
in the buying or selling of metal cemetery markers and flag holders bearing
the insignia of any veterans’ organization placed upon the graves of veterans.
A violation of the provisions of this section shall constitute a violation and
shall be punishable by a fine of not more than five hundred dollars or not more
than fifteen days imprisonment or both.
§ 451. Cemetery to state true
location
Any cemetery corporation or employee or agent thereof that shall advertise in
a newspaper, magazine or other publication or in the form of a book, notice,
circular, pamphlet, letter, poster, card, or over any radio station, or in any
other way for the purpose of selling lots, plots or parts thereof in its cemetery
shall in such advertisement state the location of the cemetery grounds, including
the city, town or village, and the county and state. A violation of the provisions
of this section shall constitute a misdemeanor and shall be punishable by a
fine of not more than five hundred dollars or not more than six months imprisonment
or both.
§ 452. Unauthorized charges in
connection with permits for burials or erection of monuments
It shall be unlawful for a society or fraternal organization or a representative
thereof to obtain, receive or exact or attempt to obtain, receive or exact,
a fee or thing of value in addition to the regular dues or charges required
to be paid pursuant to the by-laws, constitution, or rules of such society or
fraternal organization as a condition to granting a permit for or consent to
burial in or the erection of a monument or memorial upon a lot or plot in a
cemetery. A violation of this section shall constitute a misdemeanor and shall
be punishable by a fine of not more than five hundred dollars or not more than
six months imprisonment or both.
§ 453. Moneys paid in connection with agreements for
funeral merchandise or services in advance of need to be kept on deposit pending
use or repayment
1. (a) Any and all moneys paid to a funeral firm, funeral director, undertaker,
cemetery, or any other person, firm or corporation, under or in connection with
an agreement for the sale of merchandise to be used in connection with a funeral
or burial, or for the furnishing of personal services of a funeral director
or undertaker, wherein the merchandise is not to be delivered or the personal
services are not to be rendered until the occurrence of the death of the person
for whose funeral or burial such merchandise or services are to be furnished
shall continue to be the money of the person making such payment and shall be
held in trust for such person by the funeral firm, funeral director, undertaker,
cemetery or any other person, firm or corporation to whom such payment is made
and shall, within ten business days of receipt, be deposited in an interest
bearing account in a bank, national bank, federal savings bank, federal savings
and loan association, savings bank or savings and loan association within the
state and duly authorized to receive deposits in the state of New York and which
shall earn interest at a rate which shall be at not less than the prevailing
rate of interest earned by other such deposits in such banks, savings banks
or savings and loan associations under this section, or shall be placed in a
trust company in an investment backed by the government of the United States
and shall not be commingled with other moneys of the funeral firm, funeral director,
undertaker, cemetery, or other person, firm or corporation or become the funds
of the funeral firm, funeral director, undertaker, cemetery, or other person,
firm or corporation, and shall be so held on deposit, together with any interest
thereon, until said merchandise has been delivered and said personal services
have been rendered, unless sooner repaid, in whole or in part. Such funeral
firm, funeral director, undertaker, cemetery, or other person, firm or corporation
which received such moneys shall, within thirty business days after the deposit
or any change in the institution in which such funds are deposited, provide
written notification to the person who made such payment of the institution
of the deposit and, until such moneys have been repaid or the personal services
and merchandise have been provided, shall annually provide the person who made
such payment with a statement identifying the location and annual interest earned
by the account. Upon request of the person who made such payment, or his or
her representative, the funeral firm, funeral director, undertaker, cemetery
or other person, firm or corporation which received such moneys shall provide
a statement within thirty days of such request identifying the location of the
account, amount of such account and interest earned on such account. Upon the
provision of any merchandise or personal services in connection with any such
agreement, the funeral firm, funeral director, undertaker, cemetery or other
person, firm or corporation which received such moneys shall provide a statement
itemizing the merchandise or personal services provided and the cost of such
merchandise or personal services and describing the disposition of all moneys
in the account. Copies of such statements and the records on which they are
based shall be made available for inspection and shall be made available during
ordinary business hours for copying upon written request by any state agency
regulating the funeral firm, funeral director, undertaker, cemetery or other
person, firm or corporation which received such money or enforcing the requirements
of this section, provided a complaint, either oral or written, has been received,
or an inspector has grounds to believe that serious or repeat violations of
this section have occurred.
(b) Moneys paid for such an agreement for an applicant or recipient of supplemental
security income benefits under section two hundred nine of the social services
law or of medical assistance under section three hundred sixty-six of such law
shall be placed into a trust which shall be irrevocable but under which such
applicant/recipient reserves the right to select any funeral firm, funeral director,
undertaker, cemetery or any other person, firm or corporation to whom such payment
is made and to change such selection any time to any type of funeral or any
funeral firm, funeral director, cemetery or any other person, firm or corporation
to whom such payment is made, located in the state of New York or any other
state. Any such change must be carried out within ten business days following
receipt of a request by the purchaser to the funeral firm, funeral director,
cemetery or any other person, firm or corporation to whom such payment is made,
with which such trust was established. This requirement is subject to any limits
set forth in federal law or regulation pertaining to disregarded resources or
income.
2. The amount of any and all moneys paid under or in connection with such an
agreement, together with interest, if any, accrued thereon while on deposit
as so required shall be repaid on demand at any time prior to the delivery of
the merchandise and/or the rendering of the personal services. No administrative,
consultation or other fee may be assessed against the person making such payment
in connection with or planning for such agreement. Provided, however, neither
the applicant, recipient or other purchaser of preneed funeral goods or services
through an irrevocable trust, their legal representative nor the heirs of such
person, shall be entitled to any repayment of the moneys which created such
trust.
3. Any such agreement must be in writing and must:
(a) Identify all moneys paid or to be paid; and
(b) Identify any fees paid to the person administering such trust fund by a
third party, provided, however, any such fees shall not exceed seventy-five
hundredths of one percent of the amount of such trust fund; and
(c) Except for an irrevocable trust established pursuant to section two hundred
nine of the social services law or paragraph (b) of subdivision one of this
section, notify the person making such payment of his or her right to be repaid
moneys paid, together with accrued interest, as described in this section and
of his or her right to receive an annual statement; and
(d) Identify the provider of each service or item of merchandise to the extent
agreed upon, and fully describe the service or merchandise to the extent agreed
upon; and
(e) Describe the obligations of each party:
(i) in the event the service or merchandise described in the agreement cannot,
for reasons beyond the control of the parties, be provided when needed;
(ii) in the event the cost of such services or merchandise, when such services
or merchandise is to be provided, exceeds the amount of the moneys paid and
accrued interest; and
(iii) in the event the amount of the moneys paid and accrued interest exceeds
the cost of such services or merchandise when they are to be provided. If the
agreement does not provide to the contrary, the services or merchandise described
in the agreement must be provided for no more than the price stated therein.
Except for an irrevocable trust established pursuant to section two hundred
nine of the social services law or paragraph (b) of subdivision one of this
section, any moneys in excess of the amount set forth in the agreement must
be repaid to the person who made the payment or to the estate of such person.
The agreement must also specify the name and address of a person not living
at the address of the person who made payments under or in connection with the
agreement, to whom required notices may be sent if the person who made payments
under or in connection with the agreement cannot be contacted. The person making
such payments may decline in writing to specify the name and address of a person
not living at the address of the person making such payments to whom such notice
may be sent; and
(f) With respect to an agreement for an irrevocable trust fund pursuant to section
two hundred nine of the social services law, include the following statement
in the agreement in conspicuous print of at least twelve point type:
DISCLOSURE
NEW YORK LAW REQUIRES THIS AGREEMENT TO BE IRREVOCABLE FOR APPLICANTS FOR RECEIPT
OF SUPPLEMENTAL SECURITY BENEFITS UNDER SECTION TWO HUNDRED NINE OF THE SOCIAL
SERVICES LAW OR OF MEDICAL ASSISTANCE UNDER SECTION THREE HUNDRED SIXTY-SIX
OF THE SOCIAL SERVICES LAW, AND FOR THE MONEYS PUT INTO A TRUST UNDER THIS AGREEMENT
TO BE USED ONLY FOR FUNERAL AND BURIAL EXPENSES. IF ANY MONEY IS LEFT OVER AFTER
YOUR FUNERAL AND BURIAL EXPENSES HAVE BEEN PAID, IT WILL GO TO THE COUNTY. YOU
MAY CHANGE YOUR CHOICE OF FUNERAL HOME AT ANY TIME.
(g) Any promotional literature prepared after January first, nineteen hundred
ninety-seven by a funeral firm, funeral director, undertaker, cemetery, or any
other person, firm or corporation for prearranged funeral and burial services
must contain language disclosing the irrevocable nature of burial trusts established
for an applicant or recipient of supplemental security income benefits or medical
assistance.
4. Any provision of any such agreement whereby a person who pays money under
or in connection therewith waives any provision of this section shall be void.
5. (a) Upon the sale or transfer of any business, firm, corporation or other
entity having received moneys in connection with such agreements or the transfer
of control over such money, both the new owner and former owner or the estate
of the former owner, or both the persons currently and formerly having control
over such money, shall, within thirty days of such sale or transfer, notify,
in writing, each such person who has paid moneys of the sale or transfer, including
the name and address of the new and former owner. Copies of such notification
shall be made available for inspection and shall be made available during ordinary
business hours for copying upon written request by any official or agency having
jurisdiction.
(b) Upon the sale or other transfer of any business, firm, corporation or other
entity having received moneys in connection with such agreements or upon any
transfer of control over such moneys, the transferee shall be liable for compliance
with all provisions of this section including the repayment of any moneys and
provision of funeral merchandise and services, and for compliance with all other
requirements of this section if the transferor or a transferor’s predecessor
in interest was liable for such compliance with the requirements of this section.
Such liability shall attach whether or not the successor in interest has, upon
conveyance of such business, firm, corporation or other entity, received such
moneys or has knowledge of the existence of the agreement as herein described.
Such liability shall attach where there is proof of a valid agreement for providing
funeral merchandise and services, and the funeral director, undertaker, cemetery
or other person, firm or corporation has not refunded the moneys received from
the customer.
(c) Upon the sale or other transfer of any business, firm, corporation or other
entity having received such moneys, or upon a transfer of control of such moneys,
the transferor shall disclose a complete accounting of all moneys transferred
pursuant to such agreement to the transferee, including the names and addresses
of all persons who deposited moneys with such business, firm, corporation or
other entity, the amount and location of such moneys, the names and addresses
of persons who have received refunds and the amount of such refund.
(d) Upon the termination, cessation of operation or discontinuance of any business,
firm, corporation or other entity which has received moneys in connection with
such agreements or is otherwise liable for compliance with the requirements
of this section, such business, firm, corporation or other entity shall repay
all such monies and accrued interest as if a demand had been made therefor within
thirty days of such termination or discontinuation. Copies of records relating
to the repayment of such moneys shall be available for inspection and shall
be made available during ordinary business hours for copying upon written request
by the appropriate official or agency having jurisdiction.
6. Any person, firm or corporation who or which, having received any moneys
under or in connection with such an agreement, shall knowingly and willfully
fail to deposit or keep such moneys on deposit shall be guilty of a misdemeanor
or, shall knowingly and willfully fail to provide the notification required
pursuant to subdivision five of this section shall be guilty of a violation.
Any person, firm or corporation who or which, having received any moneys under
or in connection with such an agreement, or who or which is deemed responsible
for such moneys pursuant to subdivision five of this section shall, without
lawful reason, knowingly and willfully fail to repay, upon demand, any and all
such moneys as provided in this section, or shall knowingly and willfully misappropriate
such money for a use not authorized in this section, shall, in addition to any
other penalties provided by law, be guilty of a misdemeanor.
7. Whenever there shall be a violation of this section an application may be
made by the attorney general in the name of the people of the state of New York
to a court or justice having jurisdiction by a special proceeding to issue an
injunction, and upon notice to the defendant of not less than five days, to
enjoin and restrain the continuance of such violation; and if it shall appear
to the satisfaction of the court or justice that the defendant has, in fact,
violated this section, an injunction may be issued by the court or justice,
enjoining and restraining any further violations, without requiring proof that
any person has, in fact, been injured or damaged thereby. In any such proceeding,
the court may make allowances to the attorney general as provided in paragraph
six of subdivision (a) of section eighty-three hundred three of the civil practice
law and rules, and direct restitution. Whenever the court shall determine that
a violation of this section has occurred, the court may impose a civil penalty
of not more than one thousand dollars for each violation; provided, however,
the court shall not impose a civil penalty in any case where the department
of health has imposed such a penalty for an identical violation of the provisions
of the public health law. In connection with any such proposed application the
attorney general is authorized to take proof and make a determination of the
relevant facts and to issue subpoenas in accordance with the civil practice
law and rules, and direct restitution.
8. Records required by this section to be maintained and true copies of agreements
shall be retained for four years following the provisions of funeral merchandise
and services. In the event the funds are returned to the person who deposited
the money or their representative, such records, including the record of return
of funds shall be retained for a period of four years after the sale, transfer,
termination, cessation of operation or discontinuance of the funeral.
9. This section shall not apply to the sale of lots or graves by a cemetery.
ESTATES,
POWERS
& TRUSTS LAW
§ 11-2.2 Power to invest
(a) Investment of trust funds
(1) A fiduciary holding funds for investment may invest the same in such securities
as would be acquired by prudent men of discretion and intelligence in such matters
who are seeking a reasonable income and preservation of their capital, provided,
however, that nothing in this subparagraph shall limit the effect of any will,
agreement, court order or other instrument creating or defining the investment
powers of a fiduciary, or shall restrict the authority of a court of proper
jurisdiction to instruct the fiduciary in the interpretation or administration
of the express terms of any will, agreement or other instrument or in the administration
of the property under the fiduciary’s care. This paragraph shall apply
to any investment, made on or after May first, nineteen hundred seventy, of
funds held for investment by a fiduciary, and to all estates and trusts now
in existence or which may hereafter come into existence.
A bank, trust company or paid professional investment advisor (whether or not
registered under any federal securities or investment law) which serves as a
fiduciary, and any other fiduciary representing that it has special investment
skills shall exercise such diligence in investing the funds for which the fiduciary
is responsible, as would customarily be exercised by prudent men of discretion
and intelligence having special investment skills. This paragraph shall apply
to any investment, made on or after January first, nineteen hundred eighty-six,
of the funds held for investment by such a fiduciary and to all estates and
trusts now in existence or which may hereafter come into existence.
This subparagraph shall not apply to any investment, made on or after January
first, nineteen hundred ninety-five, of funds held for investment by a fiduciary,
and to all estates and trusts in existence or which may come into existence
on or after January first, nineteen hundred ninety-five.
2. [FN1] A trustee or other person holding trust funds may require such personal
bonds or guaranties of payment of principal or interest or both, or such other
bonds or guaranties, to accompany investments as may seem prudent, and may from
time to time adjust, reduce, modify, postpone or compound the same, or any terms
and conditions thereof, including the rate of interest, or any installments
thereof, and may at any time release the same, and all premiums paid on such
guaranties or fees for servicing mortgages may be charged to or paid out of
income, provided that such charge or payment is not more than at the rate of
one-half of one per centum per annum on the par value of such investments. But
no trustee shall purchase securities hereunder from himself.
3. Whenever a trustee or other person holding trust funds has heretofore lawfully
invested or shall hereafter lawfully invest any trust funds in a share or part
of a bond and mortgage or any part interest therein or shall hold any such share,
part or part interest by apportionment, transfer, representation or otherwise,
if the property subject to such mortgage is purchased pursuant to foreclosure
sale or acquired by voluntary conveyance by or in behalf of such trustee or
other person holding trust funds and another person, including another such
trustee, owning another such share, part or part interest in such bond and mortgage,
such trustee or other person holding trust funds or a person purchasing or acquiring
title in behalf of such trustee may convey the undivided interest in such real
property so purchased or acquired to a corporation, formed for the purpose of
acquiring such property, in exchange for a proportionate part of the capital
stock and the bonds, if any, of such corporation; provided that the other person,
by or in whose behalf such property has been purchased or acquired, shall exchange
his undivided interest in such property for a proportionate part of the capital
stock and the bonds, if any, of such corporation, issued in exchange for such
real property.
4. The corporation formed, as provided in subparagraph (3), for the acquisition
of such real property shall be a business corporation, and shall have all the
powers of such a corporation, and its stockholders shall have the same power
to vote to authorize or confirm any sale, mortgage, lease, option or other disposition
of any or all of its property that is ordinarily possessed by shareholders of
a business corporation; provided, however, that the certificate of incorporation
shall prohibit it from investing in any stocks, bonds or other securities, which
are not under the laws of this state a proper subject for the investment of
trust funds, and shall provide that upon the sale of the real property acquired
by the corporation such corporation shall be dissolved. Such dissolution shall
be effected by proceedings under article 10 of the business corporation law
to be taken promptly after such sale; provided, however, that if any such corporation
shall sell real property held by it for a consideration consisting in whole
or in part of evidences of indebtedness secured by mortgage upon such real property
or shall reacquire such property upon foreclosure of such mortgage, in either
of such events, such dissolution proceedings shall not be required to be taken
until final liquidation in cash by the corporation of its entire interest in
or lien upon such real property.
5. Nothing contained in this section, however, shall affect any lawful investments
in shares, parts or part interests in bonds and mortgages heretofore made by
any trustee or other person holding trust funds for investment, nor affect any
action heretofore taken in accordance with law with respect to such bonds and
mortgages or shares, parts or part interests in such bonds and mortgages. Such
trustee or other person holding trust funds for investment shall have all the
powers heretofore possessed under this section or any other provision of law
with respect to part interests in bonds and mortgages for the protection and
preservation of the trust property. It is the intention of this section to prohibit
any future investments in part interests in bonds, or notes, and mortgages for
any estate or fund, for which such trustee or other person may hold funds for
investment.
6. [FN1] A fiduciary holding funds for investment who is directed or authorized
by an instrument creating the fiduciary relationship to retain the stock of
a bank or trust company that is a member of a bank holding company currently
fully registered under an act of Congress entitled “Bank Holding Company
Act of 1956”, [FN2] as the same may be amended from time to time, shall
be considered as being directed or authorized to retain the stock of such bank
holding company. Notwithstanding any contrary provision in this section, this
subdivision shall apply to any fiduciary relationship now in existence or which
may hereafter come into existence and to all investments now held or which may
hereafter be acquired in such relationship.
7. [FN1] No fiduciary holding funds for investment shall be liable for any loss
incurred with respect to any investment not eligible by law for the investment
of trust funds, if such ineligible investment was received by such fiduciary
pursuant to a decree of court or the terms of the will, deed, or other instrument
creating the fiduciary relationship, or if such ineligible investment was eligible
when received or when the investment was made by the fiduciary; provided such
fiduciary exercises due care and prudence in the disposition or retention of
any such ineligible investment.
(8) Investment by a fiduciary in a limited partnership or investment trust,
as defined in 9-1.5 of this chapter, shall not be deemed to be an improper delegation
of investment authority.
(9) As used in this paragraph, the phrase “person holding trust funds”
and the terms “fiduciary” and “trustee” include a personal
representative, trustee, guardian, a donee of a power during minority, committee
of the property of an incompetent person, and conservator of the property of
a conservatee.
(b) Rights of fiduciaries to invest in securities of investment companies.
(1) A fiduciary holding funds for investment may invest the same in securities
of any management type investment company or trust registered pursuant to the
federal investment company act of nineteen hundred forty, as amended, in any
case in which a court order, the will, agreement or other instrument creating
or defining the investment powers of the fiduciary authorizes the investment
of such funds in either of the following: (A) Such investments as the fiduciary
may, in his discretion, select. (B) Generally in investments other than those
in which fiduciaries are by law authorized to invest trust funds, notwithstanding
that the fiduciary or an affiliate of the fiduciary acts as investment advisor,
custodian, transfer agent, registrar, sponsor, distributor, manager or provides
other services to the investment company or trust. Unless the will, lifetime
trust or order appointing the fiduciary provides otherwise, the fiduciary shall
elect annually either (i) to receive or have its affiliate receive compensation
for providing such services to such investment company or trust for the portion
of the trust invested in such investment company or trust or (ii) to take annual
corporate trustees’ commissions with respect to such portion.
This subparagraph shall not apply to any investment, made on or after January
first, nineteen hundred ninety-five, of funds held for investment by a fiduciary,
and to all estates and trusts in existence or which may come into existence
on or after January first, nineteen hundred ninety-five.
(1-a) In any case in which a court order, will, agreement or other instrument
creating or defining the investment powers of the fiduciary directs, requires
or authorizes that the funds held for investment be invested in United States
government obligations, the fiduciary may invest such funds in securities of,
or other interests in, any open-end or closed-end management type investment
company or investment trust registered pursuant to the federal investment company
act of nineteen hundred forty, as amended, provided that the portfolio of such
investment company or investment trust is limited to United States government
obligations or to repurchase agreements fully collateralized by such obligations
and provided further that such investment company or investment trust shall
take delivery of such collateral, either directly or through an authorized custodian.
(2) As used in this paragraph, the term “fiduciary” includes a personal
representative, trustee, guardian, committee of the property of an incompetent
and conservator of the property of a conservatee.
§ 11-2.3 Prudent investor act
(a) Prudent investor rule.
A trustee has a duty to invest and manage property held in a fiduciary capacity
in accordance with the prudent investor standard defined by this section, except
as otherwise provided by the express terms and provisions of a governing instrument
within the limitations set forth by section 11-1.7 of this chapter. This section
shall apply to any investment made or held on or after January first, nineteen
hundred ninety-five by a trustee.
(b) Prudent investor standard.
(1) The prudent investor rule requires a standard of conduct, not outcome or
performance. Compliance with the prudent investor rule is determined in light
of facts and circumstances prevailing at the time of the decision or action
of a trustee. A trustee is not liable to a beneficiary to the extent that the
trustee acted in substantial compliance with the prudent investor standard or
in reasonable reliance on the express terms and provisions of the governing
instrument.
(2) A trustee shall exercise reasonable care, skill and caution to make and
implement investment and management decisions as a prudent investor would for
the entire portfolio, taking into account the purposes and terms and provisions
of the governing instrument.
(3) The prudent investor standard requires a trustee:
(A) to pursue an overall investment strategy to enable the trustee to make appropriate
present and future distributions to or for the benefit of the beneficiaries
under the governing instrument, in accordance with risk and return objectives
reasonably suited to the entire portfolio;
(B) to consider, to the extent relevant to the decision or action, the size
of the portfolio, the nature and estimated duration of the fiduciary relationship,
the liquidity and distribution requirements of the governing instrument, general
economic conditions, the possible effect of inflation or deflation, the expected
tax consequences of investment decisions or strategies and of distributions
of income and principal, the role that each investment or course of action plays
within the overall portfolio, the expected total return of the portfolio (including
both income and appreciation of capital), and the needs of beneficiaries (to
the extent reasonably known to the trustee) for present and future distributions
authorized or
required by the governing instrument;
(C) to diversify assets unless the trustee reasonably determines that it is
in the interests of the beneficiaries not to diversify, taking into account
the purposes and terms and provisions of the governing instrument; and
(D) within a reasonable time after the creation of the fiduciary relationship,
to determine whether to retain or dispose of initial assets.
(4) The prudent investor standard authorizes a trustee:
(A) to invest in any type of investment consistent with the requirements of
this paragraph, since no particular investment is inherently prudent or imprudent
for purposes of the prudent investor standard;
(B) to consider related trusts, the income and resources of beneficiaries to
the extent reasonably known to the trustee, and also an asset’s special
relationship or value to some or all of the beneficiaries if consistent with
the trustee’s duty of impartiality;
(C) to delegate investment and management functions if consistent with the duty
to exercise skill, including special investment skills; and
(D) to incur costs only to the extent they are appropriate and reasonable in
relation to the purposes of the governing instrument, the assets held by the
trustee and the skills of the trustee.
(5) Special investment skills.
For a bank, trust company or paid professional investment advisor (whether or
not registered under any federal securities or investment law) which serves
as a trustee, and any other trustee representing that such trustee has special
investment skills, the exercise of skill contemplated by the prudent investor
standard shall require the trustee to exercise such diligence in investing and
managing assets as would customarily be exercised by prudent investors of discretion
and intelligence having special investment skills.
(c) Delegation of investment or management functions.
(1) Delegation of an investment or management function requires a trustee to
exercise care, skill and caution in:
(A) selecting a delegee suitable to exercise the delegated function, taking
into account the nature and value of the assets subject to such delegation and
the expertise of the delegee;
(B) establishing the scope and terms of the delegation consistent with the purposes
of the governing instrument;
(C) periodically reviewing the delegee’s exercise of the delegated function
and compliance with the scope and terms of the delegation; and
(D) controlling the overall cost by reason of the delegation.
(2) The delegee has a duty to the trustee and to the trust to comply with the
scope and terms of the delegation and to exercise the delegated function with
reasonable care, skill and caution. An attempted exoneration of the delegee
from liability for failure to meet such duty is contrary to public policy and
void.
(3) By accepting the delegation of a trustee’s function from the trustee
of a trust that is subject to the law of New York, the delegee submits to the
jurisdiction of the courts of New York even if a delegation agreement provides
otherwise, and the delegee may be made a party to any proceeding in such courts
that places in issue the decisions or actions of the delegee.
(d) Investment in securities of related investment companies.
A trustee holding funds for investment may invest the same in securities of
any management type investment company or trust registered pursuant to the federal
investment company act of nineteen hundred forty, as amended, notwithstanding
that the trustee or an affiliate of the trustee acts as investment advisor,
custodian, transfer agent, registrar, sponsor, distributor, manager or provides
other services to the investment company or trust. Unless the will, lifetime
trust or order appointing the trustee provides otherwise, the trustee shall
elect annually either (i) to receive or have its affiliate receive compensation
for providing such services to such investment company or trust for the portion
of the trust invested in such investment company or trust or (ii) to take annual
corporate trustees’ commissions with respect to such portion.
(e) As used in this section:
(1) the term “trustee” includes a personal representative, trustee,
guardian, donee of a power during minority, guardian under article eighty-one
of the mental hygiene law, committee of the property of an incompetent person,
and conservator of the property of a conservatee;
(2) the term “trust” includes any fiduciary entity with property owned
by a trustee as defined in this section;
(3) the term “governing instrument” includes a court order; and
(4) the term “portfolio” includes all property of every kind and character
held by a trustee as defined in this section.
PUBLIC
HEALTH LAW
§ 4202. Cremated remains; disposition top
1. Every body delivered to a cemetery for cremation shall be accompanied by
a statement from a physician, coroner, or medical examiner certifying that such
body does not contain a battery or power cell. The person in charge of a cemetery
may refuse to cremate a body unless accompanied by such statement.
2. Cremated remains means human remains after incineration in a crematory.
3. An institution authorized by article forty-two or forty-three of this chapter
to receive unclaimed cadavers or anatomical gifts, notwithstanding any other
provision of law, may prepare or preserve cadavers in its lawful possession
for purposes of research, study or anatomical instruction and may cremate the
cadavers or dissected remains of such cadavers after the completion of such
research, study or anatomical instruction thereon; provided, however, that cremation
shall be performed only in a retort used exclusively for such purpose. For the
purposes of the provisions of this subdivision, such institution shall not be
subject to article fifteen of the not-for-profit corporation law.
4. At the time of the arrangement for a funeral performed by any undertaker
or funeral director, the person contracting for funeral services shall designate
his intentions with respect to the disposition of the remains of the deceased
in a signed declaration of intent on a form as designated by the department
which shall be provided by and retained by the undertaker. Every undertaker,
administrator, executor, authorized representative of a deceased person, corporation,
company or association, or other person having in his or its lawful possession
cremated remains, except such remains committed to his or its care for permanent
interment, which remains shall not have been claimed by a relative or friend
of the deceased person within one hundred twenty days from the date of cremation,
may dispose of such remains by placement in a tomb, mausoleum, crypt, niche
in a columbarium, burial in a cemetery, or scattering of the remains at sea
or by otherwise disposing of such remains as provided by rule of the department.
A record of such disposition shall be made and kept by the person making such
disposition. Upon disposing of such remains in the manner prescribed above,
such person shall be discharged from any legal obligation or liability in relation
to such remains.