NYS FAQ & Law
NEW YORK STATE
DEPARTMENT OF STATE CEMETERY BOARD
Cemetery Frequently Asked Questions
Are all cemeteries regulated by the State of New York?
No, the Division of Cemeteries and the New York State Cemetery Board regulate only those cemeteries that are incorporated under the Not-for-Profit Corporation Law.
Cemeteries that do not fall under our jurisdiction include religious, municipal, private,national and family cemeteries.
See Opinion of Counsel on 
Cemetery Regulation in New York State
Can a cemetery refuse burial?
Yes, but only under three conditions--all involving nonpayment. They are the following:
Nonpayment of the total purchase price of the grave or lot
Nonpayment of the burial (interment) charges
Nonpayment of an authorized lot tax
These three conditions apply only to those cemeteries under the jurisdiction of the Cemetery Board.
Can someone be buried on private property?
While some communities may have local regulations on this matter, there are no state regulations concerning burial on private property. However, the New York State Sanitary Code (10 NYCRR, Parts 100-158) does define the distances required between cemeteries and water sources (which vary from district to district) Anyone wishing to make burial arrangements on private property should check with his or her local government officials.
What is the New York State Cemetery Board, and what are its functions?
The Cemetery Board oversees the Division of Cemeteries' operations and administers the New York State Cemetery Law. The Cemetery Law sets standards for the establishment, maintenance, and preservation of burial grounds in New York State.
The Cemetery Board is made up of the New York State Secretary of State, the New York State Attorney General and the New York State Commissioner of Health.
Can I choose how my remains will be disposed of?
Yes, you have a choice of how your remains will be disposed, including cremation, burial, and entombment. Written instructions explaining your wishes are recommended.
Are there any rules on heirship regarding unused graves or family plots?
Burial rights obtained through inheritance should be recorded with the cemetery. Section 1515(b) of the Not-for-Profit Corporation Law regarding ownership of lots states that, unless specifically devised by will, (including reference to the specific lot number, section number, cemetery name), a cemetery lot is inherited by the descendants of the lot owner.
What are trust monies, and how can they be invested?
Trust monies are funds set aside, and the income is used to preserve cemetery grounds.
Trust investments are regulated by the Estates, Powers, and Trust Law of the State of New York. The law requires that cemeteries entrusted with trust monies ensure that the principal shall not be lost. Securities may take the form of interest-bearing bank accounts, certificates of deposit, stocks, and/or bonds.
Can monies be set aside for the eternal care of the cemetery?
In those cemeteries under the jurisdiction of the Cemetery Board, two principal trust funds exist: the perpetual care fund and the permanent maintenance fund. The perpetual care fund consists of individual and varied amounts of contributions by lot owners. The permanent maintenance fund is funded with a portion of current lot sale receipts and $35 from every interment.
The important distinction between these two funds is that perpetual care funds are used for the care of individual graves, plots, mausoleums, or columbarium spaces; while permanent maintenance funds are for cemetery care overall. Only the interest from these funds can be used for maintenance; the principal must remain intact.
What are service charges and how are they regulated in cemeteries?
Service charges are fees charged by cemeteries for performing any service after the purchase of the grave or lot. The Cemetery Board must approve any service charge increases proposed by incorporated cemeteries. Requests for increases must be fully documented to be considered by the Cemetery Board.
Is there any state requirement on the depth of graves?
There is no state requirement specifying the depth of a grave, although there may be local regulations that apply. For example, the City of New York requires that "when human remains are buried in the ground, without a concrete vault, the top of the coffin or casket shall be at least 3' below the level of the ground." (two feet in the case of a concrete vault)
Is a concrete vault or grave liner a requirement for burial?
A cemetery corporation may not compel the use of any particular outer enclosure, except that a cemetery may require the use of a concrete burial vault, or, at the option of the customer, a concrete grave liner under the following conditions and restrictions:the customer must have purchased the lot after January 1, 1985;
the requirement must be stated prominently in writing and a written statement must be given to the customer in advance of the signing of the agreement to lot purchase a grave or lot;
A lot owner may purchase the grave liner from any source including the cemetery.
A cemetery may not sell burial vaults.Should a lot owner object to the use of the required concrete vault or grave liner at the time of interment based upon religious belief, the cemetery must, without question, cancel the requirement; provided, however, that the cemetery may impose at the time of interment a reasonable fee for the periodic refilling of the grave;
Is there any time limit for filling a grave after burial?
While there is no legal requirement on the specific time period for backfilling a grave, the Cemetery Board does require that it be completed with reasonable dispatch.
Laws, Rules and Regulations of the
New York State Cemetery Board
(Special Thanks to the New York State Senate Website)
(3/2026)
ARTICLE 15
Public Cemetery Corporations
CHAPTER 35
Not-for-Profit Corporation
SECTION 1501 - Declaration of policy
SECTION 1504 - Cemetery board and general administration
SECTION 1505 - Special requirements of incorporation
SECTION 1505-A - Additional requirements for incorporation of crematories
SECTION 1505-B - Additional requirements for incorporation of natural organic reduction facilities
SECTION 1506-A - Cemetery corporations; restrictions
SECTION 1506-B - Transfer of lands of Valley View Rural Cemetery
SECTION 1506-C - Abandoned cemetery maintenance by cemetery corporations
SECTION 1506-E - Lease of cemetery lands
SECTION 1507-A - State cemetery board citizens advisory council
SECTION 1508 - Reports by cemeteries
SECTION 1509 - Cemetery rules and regulations; charges and lot tax assessments
SECTION 1510 - Cemetery duties
SECTION 1510-A - Repair or removal of monuments
SECTION 1510-B - Availability for interment on six-day basis
SECTION 1510-C - Form of authorizations
SECTION 1511 - Cemetery indebtedness
SECTION 1512 - Rights of lot owners
SECTION 1513 - Sale of burial rights
SECTION 1514 - Misdemeanor; general penalty
SECTION 1515 - Actions affecting cemetery corporations
SECTION 1516 - Sale of monuments
SECTION 1517 - Crematory operations
SECTION 1518 - Crematory operations during emergency declaration
SECTION 1518*2 - Natural organic reduction facility operations
§ 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, natural organic reduction 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, natural organic reduction facility
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.
(h) The term "cremation" means the technical process, using heat and
flame, that reduces human remains to ashes and other residue.
"Cremation" shall include the processing, and may include the
pulverization, of such ashes and other residue.
(i) The term "cremains" means ashes and other residue recovered after
the completion of cremation, which may include residue of foreign matter
that may have been cremated with the human remains.
(j) The term "alternative container" or "external wrappings" means a
nonmetal receptacle or enclosure, without ornamentation or a fixed
interior lining, which is designed for the encasement of human remains
and which is made of cardboard, pressed wood, composite materials (with
or without an outside covering), or pouches of canvas or other material.
(k) The term "casket" means a rigid container that is designed for the
encasement of human remains and customarily ornamented and lined with
fabric.
(l) The term "crematory" means a facility or portion of a building in
which the remains of deceased human beings are processed by cremation.
(m) The term "holding facility" or "temporary storage facility" means
an area that (i) is designated for the retention of human remains prior
to cremation or natural organic reduction; (ii) complies with all
applicable public health laws, (iii) preserves the health and safety of
the crematory or natural organic reduction facility personnel; and (iv)
is secure from access by anyone other than authorized persons. The
interior of such facility shall not be visible from any area accessible
to the general public.
(n) The terms "cremation permit" and "natural organic reduction
permit" mean the burial and removal permit required pursuant to section
forty-one hundred forty-five of the public health law that is annotated
for disposition of the remains of a deceased human being by cremation or
natural organic reduction.
(o) The terms "cremation authorization" and "natural organic reduction
authorization" mean the crematory or natural organic reduction form
authorizing a cremation or natural organic reduction which is signed by
the next of kin or authorizing agent. This crematory or natural organic
reduction form must be a separate document and cannot be a part of
another form or document.
(p) The term "authorizing agent" shall mean the person with the right
to control the disposition of the decedent pursuant to section forty-two
hundred one of the public health law.
(q) The term "pet cremated remains" means ashes and/or other residue
recovered after the completion of cremation of any domestic animal that
has been adapted or tamed to live in intimate association with people
where such cremation has occurred at a pet crematorium as defined in
section seven hundred fifty-a of the general business law.
(r) The term "nonsectarian burial society" means a corporation or
unincorporated association or society having among its activities or its
former activities the provision of burial benefits for its members and
not supervised or controlled by a religious corporation.
(s) The term "religious burial society" means a corporation or
unincorporated association or society having among its activities or its
former activities the provision of burial benefits for its members and
supervised or controlled by a religious corporation.
(t) The term "natural organic reduction" means the contained,
accelerated conversion of human remains to soil.
(u) The term "natural organic reduction facility" means a structure,
room, or other space in a building or real property where natural
organic reduction of a human body occurs.
§ 1503. Application.
(a) Except as otherwise provided in paragraph (b) of this section,
section fifteen hundred five-b, paragraph (c) of section fifteen hundred
seven, paragraph (m) of section fifteen hundred ten, and section fifteen
hundred eighteen of 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.
(b) All crematories or natural organic reduction facilities shall be
subject to inspection by the division of cemeteries. Upon inspection,
the crematory or natural organic reduction facility may be asked to
produce any and all records for the operation and maintenance of the
crematory or natural organic reduction facility. These records may
include but not be limited to cremation or natural organic reduction
authorizations, rules and regulations of the crematory or natural
organic reduction facility, procedures as set forth in section fifteen
hundred seventeen of this article, or section fifteen hundred eighteen
of this article, as applicable, and the written procedure of the
identification of remains.
(c) Except as otherwise provided in paragraph (c) of section fifteen
hundred seven and paragraph (m) of section fifteen hundred ten of this
article, this article does not apply to a burial site as defined in
paragraph (a) of subdivision one of section one hundred seventy-one of
the executive law.
§ 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 charitable
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 that 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
entitled 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.
§ 1505-a. Additional requirements for incorporation of crematories.
(a) Approval. A cemetery corporation seeking the approval to operate a
crematory must submit for approval by the cemetery board the following:
(1) a list of the directors, employees, and certificate holders of the
cemetery corporation; (2) a certified survey of the site and location
within the county it will be situated; (3) a business plan for the
operation of the crematory to include, but not be limited to, number of
expected cremations per year, number of cremation units, manufacture,
capital costs, financing, anticipated number of employees, types of
services provided, pricing thereof; (4) a description of the impact of
the proposed crematory on other crematories within the county or whether
the crematory will have an adverse impact on the surrounding community;
(5) plans, designs, and costs of any structures to be erected or
retrofitted for the crematory use; (6) a description of any approvals or
permits required by state or local law. No crematory shall be approved
until such other approvals or permits have been obtained. Any board
approval of a crematory shall be so conditioned.
(b) Further information. Within thirty-five days following receipt of
the information required by paragraph (a) of this section, the cemetery
board or the division of cemeteries may request from the cemetery
corporation any additional information or documentation and technical
assistance deemed necessary to review such information. Such information
shall not be deemed complete until the requested additional information
has been received. If no such request is made, the submission shall be
deemed complete on the thirty-fifth day after its receipt by the
division.
(c) Determination. The cemetery board shall approve or deny the
proposed crematory within ninety days of the completed submission.
(d) Notification. The cemetery board shall provide written notice of
its determination to the cemetery corporation. If a negative
determination is made, such notice shall state the reasons therefor.
Notice shall be made by registered or certified mail addressed to the
corporation at its principal office.
§ 1505-b. Additional requirements for incorporation of natural organic
reduction facilities.
(a) Approval. A cemetery corporation seeking the approval to operate a
natural organic reduction facility shall submit for approval by the
cemetery board the following:
(1) a list of the directors, employees, and certificate holders of the
cemetery corporation;
(2) a certified survey of the site and location within the county it
will be situated;
(3) a business plan for the operation of the natural organic reduction
facility to include, but not be limited to, number of expected natural
organic reductions per year, number of natural organic reduction units,
manufacture, capital costs, financing, anticipated number of employees,
types of services provided, pricing thereof;
(4) a description of the impact of the proposed natural organic
reduction facility on other natural organic reduction facilities, if
any, within the county or impact on the surrounding community;
(5) plans, designs, and costs of any structures to be erected or
retrofitted for the natural organic reduction facility use; and
(6) a description of any approvals or permits required by state or
local law. No natural organic reduction facility shall be approved until
such other approvals or permits have been obtained.
(b) Further information. Within thirty-five days following receipt of
the information required by paragraph (a) of this section, the cemetery
board or the division of cemeteries may request from the cemetery
corporation any additional information or documentation and technical
assistance deemed necessary to review such information. Such information
shall not be deemed complete until the requested additional information
has been received. If no such request is made, the submission shall be
deemed complete on the thirty-fifth day after its receipt by the
division of cemeteries.
(c) Determination. The cemetery board shall approve or deny the
proposed natural organic reduction facility within ninety days of the
completed submission.
(d) Notification. The cemetery board shall provide written notice of
its determination to the cemetery corporation. If a negative
determination is made, such notice shall state the reasons therefor.
Notice shall be made by registered or certified mail addressed to the
cemetery corporation at its principal office.
§ 1506. Cemetery lands.
(a) Purchase of land; notice to cemetery board. (1) 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 to notice and approval of the cemetery board.
In determining the fair and reasonable market value, the cemetery board
may take into consideration the method by which the purchase price is to
be paid.
(2) Notwithstanding the restrictions set forth in subparagraph three
of paragraph (h) of this section, a cemetery corporation may purchase
real property for cemetery purposes that is not adjacent to existing
cemetery property or that would result in the cemetery corporation
owning more than two hundred acres of land in the aggregate upon proving
to the satisfaction of the cemetery board:
i. that the proposed purchase will benefit the cemetery corporation
and the owners of plots and graves in the cemetery;
ii. that the cemetery has sufficient funds and sufficient ability to
take on any debt required by the proposed terms of purchase;
iii. that the cemetery corporation fully investigated available land
in reasonable proximity to its existing cemetery and that the proposed
purchase is prudent, taking into consideration the proximity of the land
to the existing cemetery, the quantity of land, the proposed purchase
price, and if applicable, the number of lot sales and income the land is
reasonably expected to generate, and the future needs of the cemetery;
and
iv. that the municipalities that would be required to assume the care
and control of any part of the cemetery if the cemetery corporation were
to be abandoned have been notified of the proposed purchase.
(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, merger 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 fifty acres of
land unless the acquisition is by an abandonment pursuant to section
fifteen hundred six-c of this article or a merger or consolidation of
cemetery corporations pursuant to article nine of this chapter that
complies with the additional requirement of section fifteen hundred
six-d of this article, except that such limitation shall not apply to
paragraph (n) of this section and the provisions of subparagraph two of
paragraph (a) of this section. 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 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 unless
the acquisition is by an abandonment pursuant to section fifteen hundred
six-c of this article or a merger or consolidation of cemetery
corporations pursuant to article nine of this chapter that complies with
the additional requirements of section fifteen hundred six-d of this
article. 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 paragraph (c) of section fourteen hundred one of this
chapter. Nothing herein contained shall prohibit a cemetery corporation
from assuming management and maintenance of an abandoned cemetery
pursuant to section fifteen hundred six-c of this article or a merger or
consolidation of cemetery corporations pursuant to article nine of this
chapter that complies with the additional requirements of section
fifteen hundred six-d of this article.
(2) The provisions of this paragraph 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 provided that such
use shall be consented to by the Nassau county legislature.
(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 or otherwise. (1) 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.
(2) 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.
(3) A cemetery corporation may acquire, otherwise than by
condemnation, real property exclusively for the purposes of a cemetery
as aforesaid in subparagraph 1 of this paragraph and additional real
property for the purposes of the convenient transactions of its
business, no portion of which shall be used for the purposes of a
cemetery. Notwithstanding the foregoing or any other provision of law to
the contrary, a cemetery corporation that holds real property for
cemetery purposes that exceeds two hundred acres in the aggregate or
that does not form one continuous tract as a result of acquisitions of
real property that occurred prior to the effective date of the chapter
of the laws of two thousand twenty which amended this paragraph and for
which all approvals and consents required at the time to acquire such
real property were obtained, may continue to use such real property for
cemetery purposes.
(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 or the cemetery board, that either: (A) 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) the land to be sold or disposed of is not used or 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) 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 or the cemetery board 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 or 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 or cemetery board 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 in addition to the
cemetery board, to the holders of certificates of indebtedness and land
shares of the cemetery corporation, to any person having informed the
cemetery board by petition or notice of interest in the proceeding 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.
(m) Prohibition of stand-alone mausoleum and columbarium. No
application for the construction of a mausoleum or columbarium to be
located in any city, town or village shall be approved by the cemetery
board when such mausoleum or columbarium shall be the only form of
interment offered by a cemetery corporation, unless a management
contract has been entered into with an existing cemetery corporation
regulated under this article, that will provide operational management
of the mausoleum or columbarium, and the owner of the mausoleum or
columbarium has reserved interment space and secured interment services
in a cemetery regulated under this article, in order to assure continued
perpetual care of the remains contained in the mausoleum or columbarium
should such mausoleum or columbarium become abandoned or choose to cease
operations.
(n) The provisions of this section shall not operate to prevent any
two cemeteries located in Suffolk county with contiguous or adjacent
land dedicated for cemetery purposes and previously operating as public
cemetery corporations, from effectuating a merger of such cemeteries
where their total acreage does not exceed three hundred twenty-five
acres.
§ 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; provided, however,
that a not-for-profit cemetery corporation may enter into or perform a
management contract with a private cemetery corporation for the
operational management of a mausoleum or columbarium by such private
cemetery corporation provided such contract shall have first been
authorized by the board of the 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.
§ 1506-b. Transfer of lands of Valley View Rural Cemetery.
Notwithstanding any other provision of law to the contrary, the board
of trustees of the Valley View Rural Cemetery Association in the town of
Dover Plains, New York, may by resolution of such board, sell, lease or
transfer any portion of the lands of Valley View Rural Cemetery to the
parish of St. Charles Borromeo in the town of Dover Plains, New York,
for cemetery purposes for the adjoining and contiguous cemetery of the
parish of St. Charles Borromeo.
§ 1506-c. Abandoned cemetery maintenance by cemetery corporations.
(a) Upon application and approval by the cemetery board, a cemetery
corporation may assume management and maintenance of an abandoned
cemetery. For the purposes of this section, abandoned cemetery means a
cemetery which was organized pursuant to this chapter or existing by
virtue of the membership corporation law, for which there no longer
exists any corporate board or body to maintain it, and for which there
is no sufficient trust fund or endowment to provide ordinary and
necessary care and maintenance. Provided, however, that in no event
shall the cemetery board approve the assumption of the management and
maintenance of an abandoned cemetery under this section if the abandoned
cemetery was affiliated with any religious denomination or tradition or
if the majority of the persons whose bodies were interred in such
cemetery were affiliated with any religious denomination or tradition
unless the cemetery assuming the management and maintenance of such
abandoned cemetery follows the customs and practices of the same
religious denomination or tradition.
(b) A cemetery corporation assuming management and maintenance of an
abandoned cemetery may make application for funds pursuant to paragraph
(h) of section fifteen hundred seven of this article and section
ninety-seven-r of the state finance law for maintenance of abandoned
cemeteries. Within sixty days of submission of a completed application,
the cemetery board shall approve or deny such application.
(c) Monies disbursed under such assumption shall be used exclusively
for the purpose of the management and maintenance of an abandoned
cemetery as provided in subparagraph three of paragraph (h) of section
fifteen hundred seven of this article.
(d) Any residual funds disbursed to a cemetery corporation after the
maintenance of an abandoned cemetery has been performed must be returned
to the cemetery board for redeposit into the state cemetery vandalism
restoration, monument repair or removal and administration fund
established by section ninety-seven-r of the state finance law.
(e) Within ninety days of its receipt of disbursements, the cemetery
corporation shall make a report to the cemetery board setting forth
details of the maintenance and clean-up undertaken and the amount of
funds, if any, to be redeposited into the fund. If the maintenance and
clean-up have not been completed, or necessary equipment has not been
purchased, the reasons therefor shall be set forth, and the anticipated
date for a subsequent, final report shall be disclosed.
§ 1506-d. Additional requirements for merger or consolidation of
cemetery corporations in certain circumstances. (a) A merger or
consolidation of cemetery corporations may be approved notwithstanding
that the surviving corporation or consolidated corporation will own land
that does not form one continuous tract or that exceeds two hundred
acres in the aggregate, but only with the recommendation of the cemetery
board. The cemeteries proposing such a merger or consolidation shall
first prove to the satisfaction of the cemetery board that:
(1) the plan of merger or consolidation is economically feasible and
financially responsible;
(2) the merger or consolidation does not harm the interests of each
cemetery corporation, their lot owners, the communities in which the
constituent cemeteries are located, or the state;
(3) the surviving or consolidated corporation will have the resources,
ability and commitment of directors and officers to ensure that all the
constituent cemeteries are properly operated and maintained, that they
will not fall into disrepair and dilapidation and become a burden upon
the community, that they will be operated for the mutual benefit of lot
owners, and that they will continue to serve the local communities in
which they are located;
(4) the municipalities which would be required to assume the care and
control of any part of the cemetery if the surviving or consolidated
cemetery corporation were to be abandoned have been notified of the
proposed merger or consolidation; and
(5) the plan of merger or consolidation submitted to the cemetery
board shall include the following:
(i) a description of the financial assets of each constituent cemetery
corporation demonstrating that the surviving or consolidated cemetery
will have sufficient financial resources to operate all locations
subsequent to merger or consolidation;
(ii) a proposal for management of financial assets of the surviving or
consolidated cemetery, including management of trust funds of the
constituent cemeteries;
(iii) a proposal for maintenance, storage and availability of all
corporate and cemetery records of the surviving or consolidated cemetery
including procedures for physical or remote access to such records by
persons entitled to access;
(iv) a proposal for maintenance, storage and availability of all
corporate and cemetery records relating to the constituent cemeteries,
including procedures for physical or remote access to such records by
persons entitled to access;
(v) a plan for maintenance and operation of all locations in an
equitable manner;
(vi) an agreement that contact information for the surviving or
consolidated cemetery will be posted at the entrance to each location of
the surviving or consolidated cemetery and on any website maintained by
it;
(vii) a proposal for the conduct of annual and special lot owner
meetings that permits lot owners who were lot owners of a constituent
cemetery to attend, actively participate in, and vote at such meetings
remotely; and
(viii) a proposal for providing notice to lot owners who were lot
owners of a constituent cemetery of the place, date and hour of the
annual and any special lot owner meetings in compliance with section six
hundred five of this chapter, and that also provides for: notice to be
published in a newspaper located in each county in which any constituent
cemetery was located, and notice to be prominently posted on the
homepage of any website maintained by the surviving or consolidated
cemetery.
(b) In addition to the requirements of section nine hundred three of
this chapter, lot owner approval of the plan of merger or consolidation
must meet these requirements:
(1) Notice of the meeting to lot owners by a constituent cemetery
corporation that will not be a surviving cemetery corporation may not be
served by publication, unless the constituent cemetery demonstrates that
notice by means other than publication would cause undue hardship;
(2) Additional notice of the meeting shall be conspicuously posted at
the cemetery at least sixty days prior to the meeting and shall provide
the name, telephone number and address of a person from whom a copy of
the plan of merger or consolidation may be obtained; and
(3) Additional notice of the meeting, along with the plan of merger or
consolidation or an outline of the material features of the plan, shall
be conspicuously posted, by each constituent corporation, on any website
it maintains or through which it conducts business.
(c) The cemetery board may adopt rules and regulations as are
necessary to carry out the purposes and provisions of this section.
§ 1506-e. Lease of cemetery lands.
(a) Cemetery board approval. Except as set forth in paragraph (i) of
this section, no cemetery corporation shall lease any portion of its
land without notice to and approval of the cemetery board.
(b) Requirements for approval of a lease of cemetery land. The
application to the cemetery board for approval to lease cemetery land
shall meet the following requirements:
(1) The cemetery's lot owners or board of directors have approved the
lease.
(2) If the cemetery has any existing leases of land, it must disclose
them so the board can consider the impact of existing leases on cemetery
operations.
(3) In addition to its submission to the cemetery board, the cemetery
corporation shall, no earlier than ten days prior to such submission,
post notices in the immediate proximity of the land proposed to be
leased, the cemetery office and, in a manner so as not to violate local
zoning ordinances or to create a traffic hazard, all entrances. Each
such notice shall provide information written in plain English
concerning the proposed lease and, if the proposed lease includes
construction of new structures or buildings, include a drawing, which
shall be an accurate rendition of the proposed construction. In
addition, such notices shall state the telephone number and address
where comments may be received and the last date on which such comments
will be accepted, which shall be no earlier than sixty days following
the date the notices are posted.
(4) The proposed lease has been negotiated at arm's length for a fair
market rent and contains all of the agreements between the parties.
Where the proposed lease would be a related party transaction under this
chapter, the cemetery shall disclose this fact and demonstrate
compliance with restrictions related to such transactions, as set forth
in section seven hundred fifteen of this chapter, and the cemetery board
may require that the lease contain a clause by which the cemetery board
may set reasonable reporting requirements that would disclose any
financial relationship between the lessor and lessee related to the
leased property.
(5) The initial lease term is not greater than forty-nine years, and
the cemetery demonstrates that such a term will not interfere with land
needed for burial purposes. Notwithstanding the provisions of this
subparagraph, the cemetery board may approve a lease with extensions of
the initial term not to exceed ninety-nine years from the date of the
initial lease, provided that the security shall be updated at year
forty-nine and every twenty years afterward during the term of the lease
and all extensions thereof, if applicable, and approved pursuant to
paragraph (h) of this section.
(6) If the proposed lease involves land adjacent to cemetery
operations, the proposed lease requires the tenant to construct and
maintain a physical or visual buffer approved by the cemetery board,
which may be vegetative, and that protects visitors to the cemetery, and
that otherwise complies with the requirements of this section.
(7) The proposed lease requires the tenant to be responsible for any
and all taxes, assessments, and charges related to its occupancy and use
of the land, whether imposed against the tenant or the cemetery
corporation.
(8) If the proposed lease includes permission to construct any
infrastructure, buildings or other structures, the application to the
cemetery board shall provide for the removal of such infrastructure,
buildings or other structures after the cemetery retakes possession of
the land, unless the infrastructure, buildings or other structures are
to be retained by the cemetery pursuant to paragraph (f) of this
section.
(9) The proposed lease shall include an agreement to pay for the
removal of any proposed infrastructure, buildings and structures, except
any that are approved to be retained as set forth in paragraph (f) of
this section, and return the land to a condition suitable for cemetery
use upon the expiration or termination of the lease and such agreement
shall be secured by a fund, bond, letter of credit or other security
sufficient to pay for such future removal. The application shall include
a written description of the proposed funding mechanism for the
establishment of a fund, written evidence of a bond, or other security
to the cemetery board for payment of the cost of restoring the leased
premises to a condition suitable for use for cemetery purposes at the
end or earlier termination of the term of the lease, including but not
limited to the cost of removing any and all buildings and structures
that may then be located on the leased premises and will not be
retained. Any such bond shall be issued by an entity authorized to do
business in the state of New York, and any irrevocable letter of credit
or a certificate of deposit shall be from a New York state or federally
chartered bank, trust company, savings bank or savings and loan
association that is qualified to do business in the state of New York
and insured by the federal deposit insurance corporation.
(10) The land proposed to be leased will not be used for any activity
that would be disruptive to cemetery operations or that would have a
significant impact on cemetery traffic.
(11) If the proposed use or activity arising therefrom could disturb
normal and usual cemetery activities, the proposed lease limits the
hours of activity.
(12) The proposed lease will not include the manufacture or disposal
of hazardous material or the use or storage of hazardous material in
violation of any law or otherwise create a significant risk of
environmental harm to the cemetery property.
(13) The proposed lease may permit assignment or sub-leases, including
sub-leasing and assignment of space on cell towers to communications
providers, provided the original lease remains in effect and the use
remains the same.
(c) The following uses are deemed to comply with subparagraph ten of
paragraph (b) of this section:
(1) Communications service facilities, also known as cell towers;
(2) Solar panels; and
(3) Energy storage equipment, as defined in section four hundred
ninety-nine-aaaa of the real property tax law.
(d) For any lease involving related party transactions pursuant to
section seven hundred fifteen of this chapter, the cemetery board may
set reasonable reporting requirements that would disclose any financial
relationship between the lessor and lessee related to the leased
property.
(e) Any material modification, alteration or expansion of the lease or
additions of any infrastructure, structures or buildings outside the
scope of the prior approval requires cemetery board approval.
(f) If the cemetery corporation intends that any infrastructure,
structures or buildings proposed under the lease be retained and used
for cemetery purposes after the lease terminates or expires, the
application to approve the lease shall also include an application for
approval of such infrastructure, structures or buildings as intended to
be used by the cemetery. The board shall render decision on the
application for a major alteration in conjunction with the decision on
the application to lease cemetery land. If that application is approved,
such infrastructure, buildings or structures shall be excluded from the
requirements of subparagraph nine of paragraph (b) of this section.
(g) The application shall include at least two written estimates of
the cost of removing the infrastructure, buildings and structures
excluding retained infrastructure and associated structures and
returning the land to a condition suitable for burial purposes at the
conclusion of the lease.
(h) (1) The cemetery board shall approve the type and amount of the
security which shall be maintained in full force and effect, in an
amount not less than that which was approved by the cemetery board,
until: (i) the leased premises shall have been restored to a condition
suitable for use for cemetery purposes at the end or earlier termination
of the term of the lease, (ii) any and all buildings and structures then
located on the leased premises shall have been removed, (iii) proof in
form acceptable to the cemetery board demonstrating that all costs of
such restoration and removal work have been paid in full and that no
person or entity performing labor or furnishing materials for such work
has filed a notice of mechanic's lien that shall have been delivered to
the cemetery board, provided however that a cemetery may contest such
lien as long as such contest prevents the foreclosure of a lien, and
(iv) if applicable, each governmental unit or agency that issued any
permit for such restoration and removal work shall have issued a
certificate of compliance or other similar instrument indicating that
such work has been completed in a due and proper manner. The parties
directed to perform the restoration and removal work contemplated by
this paragraph and as approved by the cemetery board shall not be
limited by the amount of the bond, letter of credit, or certificate of
deposit or by any inability to recover all or any part of such bond,
letter of credit, or certificate of deposit from the issuing surety,
bank, trust company, savings bank, or savings and loan association.
Neither the cemetery board nor the department of state shall be liable
to the tenant, the cemetery, or any other person or entity by reason or
any determination or approval made under this paragraph.
(2) Prior to the commencement of construction, the cemetery shall
submit proof to the cemetery board that such security in such amount is
in place.
(i) Leases for the following uses do not require cemetery board
approval:
(1) A lease or license to grow and harvest crops with a term less than
five years;
(2) A lease of a dwelling to the caretaker or other officer or
employee of the cemetery that is actually used and occupied as that
person's residence; and
(3) A renewal or assignment of an existing lease of existing
structures on land owned by the cemetery, not dedicated to cemetery
purposes and that was subject to a lease, provided that such purchase or
acquisition was approved by a court or the cemetery board, if such
renewal does not change the scope of the existing lease.
(j) All lease payments and other 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, except that upon a showing of a need to
fund specific projects, maintain and preserve, or expand current
cemetery operations, the cemetery board may permit any portion of the
lease payments or other consideration to be used for such purposes, with
the remainder to be deposited to the permanent maintenance fund.
§ 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 the 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. In
addition to the foregoing, at the time the cemetery corporation receives
payment for the performance of an interment or inurnment, the cemetery
corporation shall collect and deposit into the permanent maintenance
fund the sum of thirty-five dollars. (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, crypts, niches, 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 11-2.3 of the
estates, powers and trusts law. The income in the form of interest and
ordinary dividends therefrom shall be used solely for the maintenance
and preservation of the cemetery grounds. In addition, in any year, the
governing board of a qualified corporation, as defined below, may
appropriate for expenditure solely for the maintenance and preservation
of the cemetery grounds, and treat as income for all purposes, an amount
of trust principal equal to the excess, if any, of a percentage of the
fair market value of the principal of the trust, as of the last day of
the cemetery's immediately preceding fiscal year, as is prudent under
the standard established by article five-A of this chapter, the prudent
management of institutional funds act over interest and ordinary
dividends received in such year; provided, however, that an
appropriation of an amount (the safe harbor amount) of trust principal
equal to the excess of up to four percent of the fair market value of
the principal of the trust, as of the last day of the cemetery's
immediately preceding fiscal year over interest and ordinary dividends
received in such year shall be deemed to be prudent in all events. A
"qualified corporation" means a cemetery corporation which adopts a
written investment policy setting forth guidelines on investments and
delegation of management and investment functions in accord with the
standards of article five-A of this chapter. If a cemetery corporation
seeks to appropriate any percentage of the principal of the permanent
maintenance fund in accordance with this subparagraph, the cemetery
corporation shall provide notice of such proposed appropriation and
provide a copy of its written investment policy by certified mail to the
cemetery board not less than sixty days in advance of such proposed
appropriation and shall disclose such appropriation as part of and in
addition to their annual reporting requirements as defined in section
fifteen hundred eight of this article, setting forth the amount of
principal to be appropriated for such expenditure and its effect on the
permanent maintenance fund. Such proposed appropriation shall become
effective sixty days after receipt of such notice, unless the proposed
appropriation exceeds the safe harbor amount or the written investment
policy is not provided or is not prepared in accordance with the
standards of article five-A of this chapter, and the cemetery board
within such sixty-day period notifies the cemetery corporation that the
board objects to the proposed appropriation. Except to the extent that
principal is utilized as the result of the foregoing, all principal of
the permanent maintenance fund shall remain inviolate, with the further
exception 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. Unless the cemetery can clearly demonstrate that it lacks
sufficient future revenue to make repayment, any such allowance from the
permanent maintenance fund shall be in the form of a loan, and the court
shall determine the method for repayment of such a loan by the cemetery
to the fund. If the cemetery clearly demonstrates it lacks sufficient
future revenue to make repayment such allowance from the permanent
maintenance fund shall be in the form of a grant that the cemetery is
not required to repay into its permanent maintenance fund. A cemetery,
including a surviving cemetery following a merger or consolidated
cemetery following a consolidation, may seek a modification of the
method of repayment, or conversion of a loan to a grant, if the cemetery
can clearly demonstrate that the cemetery merged or consolidated into
the surviving cemetery will not produce sufficient future revenue to
make repayment under the existing loan. (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 sections 11-2.2 and 11-2.3 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. In addition, in any
year, the governing board of a qualified corporation, as defined below,
may appropriate for expenditure solely for the maintenance and
preservation of the cemetery grounds, and treat as income for all
purposes, an amount of trust principal equal to the excess, if any, of a
percentage of the fair market value of the principal of the trust, as of
the last day of the cemetery's immediately preceding fiscal year, as is
prudent under the standard established by article five-A of this
chapter, the prudent management of institutional funds act over interest
and ordinary dividends received in such year; provided, however, that an
appropriation of an amount (the safe harbor amount) of trust principal
equal to the excess of up to four percent of the fair market value of
the principal of the trust, as of the last day of the cemetery's
immediately preceding fiscal year over interest and ordinary dividends
received in such year shall be deemed to be prudent in all events. A
"qualified corporation" means a cemetery corporation which adopts a
written investment policy setting forth guidelines on investments and
delegation of management and investment functions in accord with the
standards of article five-A of this chapter. If a cemetery corporation
seeks to appropriate any percentage of the principal of the perpetual
care fund in accordance with this subparagraph, the cemetery corporation
shall provide notice of such proposed appropriation and provide a copy
of its written investment policy by certified mail to the cemetery board
not less than sixty days in advance of such proposed appropriation and
shall disclose such appropriation as part of and in addition to their
annual reporting requirements as defined in section fifteen hundred
eight of this article, setting forth the amount of principal to be
appropriated for such expenditure and its effect on the perpetual care
fund. Such proposed appropriation shall become effective sixty days
after receipt of such notice, unless the proposed appropriation exceeds
the safe harbor amount or the written investment policy is not provided
or is not prepared in accordance with the standards of article five-A of
this chapter, and the cemetery board within such sixty-day period
notifies the cemetery corporation that the board objects to the proposed
appropriation. (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 paragraph (b), of this section, the
permanent maintenance of such cemetery pursuant to paragraph (a) of this
section, and for special purposes pursuant to paragraph (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 or the cemetery board; 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 paragraphs (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 sections 11-2.2 and
11-2.3 of the estates, powers and trusts law. The principal of such fund
shall remain inviolate, except that upon application to the cemetery
board, which 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
sections 11-2.2 and 11-2.3 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, abandonment and monument repair or removal. (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, for the restoration of property
damaged by acts of vandalism, and for the repair or removal of monuments
or other markers not owned by the cemetery corporation that have fallen
into disrepair or dilapidation so as to create a dangerous condition.
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 and the repair or removal of
monuments or other markers not owned by the cemetery corporation,
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 ordinary and
necessary care of a cemetery, such as the construction of cemetery
fences, placement of cemetery lights, removal of grass and weeds,
demolition or restoration of any buildings or structures in disrepair,
the refilling of graves, the repair or removal of monuments or other
markers not owned by the cemetery corporation that have fallen into
disrepair or dilapidation so as to create a dangerous condition,
replacement of cemetery doors and locks, and the care of crypts, niches,
grave sites, monuments, and memorials paid for by means of the general
fund or special fund or the income applied from the permanent
maintenance fund, perpetual care fund or monument maintenance fund of
the abandoned cemetery. For the purposes of this paragraph, the term
"abandoned cemetery" may include cemeteries in imminent danger of
abandonment as determined by the New York state cemetery board.
(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 or
other solvent not-for-profit cemetery corporation, or a solvent
not-for-profit cemetery corporation that merges with an abandoned
cemetery in a city pursuant to section fifteen hundred six-d of this
article, for fair and reasonable expenses required to be made by the
municipality, other solvent not-for-profit cemetery corporation for
maintenance of an abandoned cemetery, or a solvent not-for-profit
cemetery corporation that merges with an abandoned cemetery in a city
pursuant to section fifteen hundred six-d of this article; provided,
however, that the cemetery board shall not approve any such application
unless the municipality, other solvent not-for-profit cemetery
corporation, or solvent not-for-profit cemetery corporation that merges
with an abandoned cemetery in a city pursuant to section fifteen hundred
six-d of this article acknowledges that the responsibility for
restoration and future care, preservation, and maintenance of such
cemetery has been assumed by the municipality or other solvent
not-for-profit cemetery corporation, or the solvent not-for-profit
cemetery corporation that merges with an abandoned cemetery in a city
pursuant to section fifteen hundred six-d of this article. 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 descendants 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) Authorization for payments by the fund for the repair or removal
of monuments or other markers not owned by the cemetery corporation
shall be made by the secretary of state only on approval by the New York
state cemetery board on application by the cemetery corporation showing:
(i) that the monuments or markers are so badly out of repair or
dilapidated as to create a dangerous condition;
(ii) that the cost of remedying the condition is fair and reasonable;
(iii) that the cemetery corporation has given not less than sixty days
notice to the last known owner to repair or remove the monument or other
marker and the said owner has failed to do so within the time prescribed
in said notice.
(7) The New York state cemetery board shall promulgate rules defining
standards of maintenance, as well as what type of vandalism or out of
repair or dilapidated monuments or other markers shall qualify for
payment of repair or removal 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 fifteen hundred seven-a of this article
(State cemetery board citizens advisory council). The New York state
cemetery board shall approve or deny any application made pursuant to
this section no later than sixty days after receipt of a completed
application.
(8) 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 for repairing or removing
out of repair or dilapidated monuments or other markers not owned by the
cemetery corporation, 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, monument repair or removal 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, monument
repair or removal 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 and cremation or natural
organic reduction in excess of fifteen interments, cremations, or
natural organic reductions for the preceding calendar year. No
contribution shall be collected upon the interment of the remains of a
deceased person where a contribution was collected upon cremation or
natural organic reduction.
(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
subparagraph 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 subparagraph 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
subparagraph two of this paragraph shall be processed in accordance
either with clauses A, B and C of this subparagraph or in accordance
with clause D of this subdivision.
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 subparagraph 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.
D. A cemetery may apply to the cemetery board for an increase in any
or all of its approved charges by submitting a schedule to the cemetery
board showing its currently approved charges and the proposed charges
after applying the employment cost index to said charges as it appears
in the United States Department of Labor, Bureau of Labor Statistics,
Series ECU10001A, not seasonally adjusted, total compensation, civilian,
twelve month percent change for all workers schedule or any subsequent
schedule that may be adopted by the United States Department of Labor,
Bureau of Labor Statistics, as a replacement for the aforementioned
schedule. Any application by a cemetery under this subparagraph will
prohibit application under subparagraph two of this paragraph for one
year from the effective date of the approved increase under this
subparagraph. An application setting forth the proposed changes in
charges shall be deemed to be approved if the board does not object to
the proposed charges within sixty-days following the date on which the
application is submitted by a cemetery. If the board objects to the
proposed charges, it shall notify the directors in writing with the
reasons therefore, such notice to be mailed 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. The cemetery board
shall not approve application by a cemetery under this subparagraph if
(i) the proposed percentage increases exceed the employment cost index
percentages as provided in this subparagraph; (ii) there have been
invasions of the permanent maintenance fund by the cemetery that have
not been repaid or are not currently being repaid; (iii) the cemetery is
currently not in compliance with any court order or any cemetery board
order that is not under judicial review under paragraph (d) of section
1504; (iv) the cemetery has not filed in a timely manner its annual
reports with the division of cemeteries as required under section 1508
(Reports by cemeteries); (v) all assessments as required under paragraph
(c) of section 1508 (Reports by cemeteries) and vandalism fund payments
as required under subparagraph two of paragraph (h) of section 1507
(Trust funds) have not been paid.
(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 commodities and services may make such
purchases 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 and distribution of rules, regulations, charges and
prices. The rules, regulations, charges, and prices of goods, lots,
plots or parts thereof shall be suitably printed and shall be
conspicuously posted by the corporation in each of its offices, if any,
and conspicuously displayed on any website the corporation maintains or
through which it conducts business. A printed copy of charges and prices
of goods, lots, plots or parts thereof shall be made available upon
request by any person for up to the actual price of the printing of the
copy. For each day in which the corporation fails to post or display 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. For each instance in which the corporation
fails to make available a copy of the prices of goods, lots, plots, or
parts thereof, to a person who requests such copy, 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, natural organic reductions or cremations. 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. Notwithstanding any other provision of this section, all
cemetery corporations which conduct cremations or natural organic
reductions shall maintain permanent records of the name of the deceased
human being, the funeral home from which the remains were received, the
receipt of delivery of the deceased human remains, the authorizing agent
for the cremation or natural organic reduction, and the manner of
disposition of the remains. Such records may be reviewed by the division
of cemeteries at any time.
(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 article, 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 or section fifteen hundred
ten-a of this article, 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 article 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.
(n) Interment of pet cremated remains. The interment of pet cremated
remains in a cemetery corporation shall be available to a lot owner only
in those circumstances where the interment is incidental to the burial
of human remains and where authorization has been provided in a written
statement from the cemetery corporation. The cemetery corporation shall
provide a list of approved charges for the interment of such remains.
All payments received for interment of such remains shall be deposited
in the cemetery corporation's permanent maintenance fund. Pet cremated
remains must be disposed of by placing them in a grave, crypt, or niche.
Nothing in this section shall obligate a cemetery corporation to allow
interment of such cremated pet remains where prior approval at the time
of sale or in advance of need has not been received. The provisions of
this section shall not apply to an incorporated or unincorporated
cemetery operated, supervised or controlled by a religious corporation
or a lot, plot or part thereof whose record owner is an incorporated or
unincorporated religious association or society.
(o) Posting and distribution of the New York state cemetery disclosure
form. (1) New York state cemetery disclosure forms shall be created by
the state cemetery board and shall be posted on the website of the
division of cemeteries in the department of state. Copies of such forms
shall be suitably printed by the cemetery corporation and conspicuously
displayed in each of its offices, if any, so that all persons visiting
such place may readily see the form and inspect its contents. Physical
copies of the forms shall be made available to any person inquiring
about cemetery lots, goods, or services. A corporation may offer a
customer the option of receiving the forms through the use of a quick
response (QR) code in lieu of receiving a paper copy.
(2) The New York state cemetery disclosure forms shall be in the form
and manner as prescribed by the state cemetery board, shall include the
contact information of the New York department of state division of
cemeteries, and shall contain an explanation of the rights of lot owners
and family members including, but not be limited to, the following:
(A) a website address, and a hyperlink in the case of electronic
copies, for information about the regulation of cemeteries in New York,
the New York department of state division of cemeteries and the state
cemetery board, and a description of those types of cemeteries that are
not regulated by the state cemetery board;
(B) the process of purchasing and re-selling a burial lot, plot or
part thereof;
(C) the right to interment and disposition options;
(D) inheritance rights of a burial lot, plot or part thereof;
(E) a listing of reasons that interment may be denied;
(F) the requirements in regards to the use of outer enclosures;
(G) the rights of lot owners as members of the cemetery corporation;
(H) cemeteries' duties regarding charges, prices, rules, and
regulations;
(I) the right to make burial arrangements and provide for
memorialization; and
(J) any other information deemed appropriate.
(3) The state cemetery board may, from time to time, update and amend
the New York state cemetery disclosure form as it deems necessary.
§ 1510-a. Repair or removal of monuments.
(a) Cemetery corporations may repair or remove any monuments or other
markers not owned by the cemetery corporation that have fallen into
disrepair or dilapidation so as to create a dangerous condition,
provided that the cemetery corporation has given not less than sixty
days notice by registered or certified mail to the last known owner at
that person's last known address to repair or remove the monument or
other marker and the said owner has failed to do so within the time
provided in said notice.
(b) In the event that the last known owner cannot be found, the notice
may be given by publishing the same once each week for three consecutive
weeks in a newspaper published or circulated in the county in which the
cemetery is located. Such notice shall be addressed to the last known
owner and to all persons having or claiming any interest in or to the
burial lot on which the monument or other marker is located. The notice
shall date from the date of mailing such notice by registered or
certified mail, or the date of the third publication in the newspaper.
(c) Any monument or other marker that is removed as provided for in
this section shall be replaced with a flush bronze or granite marker
suitably inscribed if replacement is appropriate for identification
purposes.
(d) Nothing contained herein 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 or remedy
any condition described or give notice thereof as provided for in this
section.
§ 1510-b. Availability for interment on six-day basis.
Every cemetery corporation shall be available for interments at least
six days per week, excluding legal holidays, as set forth in the
cemetery's regulations or in accordance with its practices. Any cemetery
which maintains and designates a burial section for persons of a
particular religious belief must remain available for grave openings and
interments Sunday through Friday or other six-day period in accordance
with the religious and/or ethnic traditions of the persons interred in
said religious section. Nothing in this section shall require a cemetery
to provide grave openings and/or interments if they are otherwise unable
to do so as to direct consequence of severe weather conditions or other
similar conditions.
§ 1510-c. Form of authorizations.
Any form, authorization, permit or designation required by this
article may be signed by written instrument or the use of an electronic
signature, as that term is defined in subdivision three of section three
hundred two of the state technology law, with the intent to execute the
instrument, writing or electronic record.
§ 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 hertofore 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.
(h) Plots owned by religious corporations, unincorporated
associations, or other entities that provide burial benefits for its
members. With respect to any lot, plot or part thereof owned by a
membership or religious corporation or unincorporated association or
other entity that provides burial benefits for its members, and requires
the cemetery to obtain a burial authorization from the membership,
religious corporation, unincorporated association, or other entity, the
following rules shall apply:
(1) If a cemetery receives a request to bury an individual who was a
member of a membership, religious corporation, unincorporated
association, or other entity that owns the lot, plot or part thereof in
which the burial would be made, and despite reasonable efforts on the
part of the family of the deceased, the funeral home, and/or the
cemetery, no representative of the membership, religious corporation,
unincorporated association, or other entity that owns the lot, plot or
part thereof in which the burial would be made can be located to
authorize the burial, the cemetery may, at its discretion, proceed with
the interment provided that documentary evidence indicating a specific
grave reservation in the lot, plot or part thereof, for the deceased
individual is provided to the cemetery and further that the cemetery has
recorded such reservation on its books and in its records;
(2) If the decedent is within the first degree of consanguinity to an
individual already interred in the lot, plot or part thereof, or the
spouse of the decedent is already interred in the lot, plot or part
thereof, the cemetery may, at its discretion, proceed with the
interment, provided some form of documentary evidence is provided to the
cemetery as to the decedent's right of burial in the lot, plot or part
thereof;
(3) The right of memorialization shall, under the circumstances
described in this paragraph, pass to the person with the right of
possession of the body at the time of burial; and
(4) Neither the cemetery nor the funeral director shall be liable for
any claims, in law or equity, relating to the failure to obtain
authorization from the membership, religious corporation, unincorporated
association, or other entity for the use of the plot, lot, or portion
thereof provided that the requirements of this paragraph have been met.
§ 1513. Sale of burial rights.
(a) Conveyance of lots. (1) Except as otherwise provided in this
paragraph 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) Notwithstanding any inconsistent provision of this
paragraph, and subject to the provisions of section fifteen hundred
sixteen of this article, a cemetery corporation may enter into a
contract with a third-party vendor to create and maintain a website for
the purposes of 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 third-party vendor may charge a fee for a transaction made
through this website, provided that a fee for all such transactions is
specified in the contract and is not dependent on or related to the
value of the lot, goods or services to be sold by the cemetery
corporation. (5) A violation of this paragraph 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 upon notice to the cemetery. Such sale shall only occur in
those instances where the owner of such lot, plot or part thereof shall
have offered it to the cemetery corporation within one year prior to the
sale, 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.
Subsequent to the receipt of notice of sale of such lot, plot or part
thereof, 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 non-user 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.
§ 1513-a. Reacquisition of a lot, plot or part thereof by a cemetery
corporation.
A cemetery corporation may, upon application and approval by the
cemetery board, reacquire, resubdivide, and resell a lot, plot or part
thereof under the following circumstances:
(a)(i) If the records of the corporation demonstrate that the lot,
plot or part thereof was purchased more than seventy-five years prior to
the application of the corporation; and (ii) if no burials have been
made in the lot, plot or part thereof or all the bodies therein have
been lawfully removed; and (iii) if neither the owner or owners of the
lot, plot or part thereof nor any person having a credible claim to
ownership who has visited, made payments in respect of or engaged in any
other proprietary activities with respect to the lot, plot or part
thereof can be identified after a reasonable search conducted by the
cemetery corporation, it shall be conclusively presumed that the owner
or owners of the lot, plot or part thereof have abandoned their burial
rights. A reasonable search consists of a search of: (1) all cemetery
records to determine the name of the owner or owners of the lot, plot or
part thereof, their last known addresses and all information available
to the cemetery relating to any person buried in the lot, plot or part
thereof and the names and last known addresses of any persons making
inquiry about or visiting the lot, plot or part thereof; (2) a search
for the death certificates and the probated wills of the owner or owners
of the lot, plot or part thereof; (3) the posting of notice by the
cemetery at the entrance to the cemetery and in the cemetery office, if
any, of its intention to declare the lot, plot or part thereof
abandoned; (4) the mailing of such notice certified mail with return
receipt requested to the owner or owners of the lot, plot or part
thereof and each person identified during the reasonable search at their
last known addresses; (5) publication of such notice once in each week
for three successive weeks, in two newspapers of regular commercial
circulation by subscription and/or newsstand sale, to be designated by
the county clerk of the county where the cemetery is located which in
his or her judgement, given the ethnic, religious, geographic or other
related demographic characteristics of the owner or owners of the lot,
plot or part thereof and each person identified through the reasonable
search and the predominant readership of such newspapers are best
calculated to inform the owner or owners of the lot, plot or part
thereof and each person identified through the reasonable search of any
application pursuant to the provisions of this section; and (6) the
preparation of an affidavit describing the steps taken by the cemetery
corporation to ascertain the identity of and to contact the current
owner or owners of the lot, plot or part thereof or next-of-kin thereof
or any other persons identified in the course of the reasonable search
who might have relevant information and the results of such steps. After
the filing with the cemetery board of proof of compliance with the above
requirements in form and substance reasonably satisfactory to such board
and upon approval by the cemetery board, the lot, plot or part thereof
may be resold by the cemetery to any party in compliance with the
cemetery rules and regulations provided, however, that any monument
subsequently placed on such lot, plot or part thereof shall conform to
the general appearance of any existing monuments in said section of
lots, plots or parts thereof, if any.
(b) If (i) the circumstances described in paragraph (a) of this
section exist except that one or more burials have been made in a lot,
and the last burial was made more than seventy-five years prior to the
application, (ii) the lot, plot or part thereof can be subdivided to
create new graves, (iii) the bodies have not been lawfully removed, and
(iv) the cemetery submits an application to the cemetery board which
complies with the requirements set forth in paragraph (a) of this
section, it shall be conclusively presumed that the lot owner has
abandoned the right to make further burials in the lot, the lot may be
subdivided, and the resubdivided lot, plot or parts thereof which do not
contain the remains of the deceased persons may be resold by the
cemetery corporation as provided in this section. Nothing in this
section shall permit a cemetery corporation to declare abandoned a lot,
plot or part thereof, where such lot, plot or part thereof was purchased
for multiple depth burials and where one or more burials has occurred or
authorized a cemetery corporation to remove a monument or other
embellishment to facilitate the resale of such lot, plot or part
thereof, except as provided by section fifteen hundred ten of this
article.
(c) If the owner or owners of a lot, plot or part thereof can be
identified, the cemetery corporation, with the consent of the owner or
owners of the lot, plot or part thereof, the lot, plot or part thereof
may be resubdivided, and the resubdivided lot, plot or part thereof
which does not contain the remains of deceased persons may be resold by
the cemetery corporation, provided, however, if no burial has been made
in the lot, plot or part thereof, in the twenty-five year period
preceding such application, the owner of a lot, plot or part thereof has
notified his or her parents, spouse, issue, brothers, sisters,
grandparents, and grandchildren, if any, of the application to the
cemetery board, and provided further, however, if a burial has been made
in this lot, plot or part thereof during such twenty-five year period,
the spouse and issue of such deceased person are also notified, and
provided further, in either case the owner of the lot, plot or part
thereof satisfies the cemetery board that none of the persons notified
have agreed within forty-five days of notification to purchase the lot,
plot or part thereof at the price provided under paragraph (c) of
section fifteen hundred thirteen of this article.
(d) Upon the sale of a lot, plot or part thereof reacquired by the
corporation under the provisions of paragraph (a), (b), or (c) of this
section, thirty-five percent of the net proceeds shall be placed in the
permanent maintenance fund and sixty-five percent shall be placed in the
current maintenance fund. Provided, however, that if their property was
reacquired under paragraph (i) of this section, thirty-five percent of
the net proceeds shall be placed in the permanent maintenance fund,
fifty percent shall be placed in the current maintenance fund and
fifteen percent shall be placed in a perpetual care fund which the
cemetery shall establish in the name of the defunct society for the
exclusive purpose of maintenance of the grounds on which the graves were
reacquired.
(e) If the owner of the lot, plot or part thereof is subsequently
identified, the cemetery corporation shall: (i) return all unsold lots,
plots or parts thereof if any, to the owner if so requested; and (ii)
with respect to any lots, plots or parts thereof that have been sold
pursuant to this section, at the option of the owner of the lot, plot or
part thereof; either (1) provide the owner, at no cost to the owner,
with a lot, plot or part thereof comparable to any lot, plot or part
thereof that was sold by the cemetery corporation or (2) provide the
owner with the proceeds from the sale of the lot, plot or part thereof
reacquired under this section with interest thereon from the date of the
sale at six percent per annum.
(f) The provisions of this section shall not apply to a lot, plot or
part thereof whose record owner is a religious burial society.
(g) The provisions of this section shall not violate the burial
requirements of sectarian sections of cemetery corporations.
(h) Monuments to be erected on a lot, plot or parts thereof, following
the resale of a lot, plot or part thereof, shall conform to the rules
and regulations or other requirements of the cemetery corporation and
shall conform to the size, style and type of monuments in the section of
the cemetery where such resale occurs.
(i) A cemetery corporation may, upon application and approval by the
cemetery board, reacquire, resubdivide, and resell a lot, plot or part
thereof formerly owned by a nonsectarian burial society under the
following circumstances:
(1) If the cemetery corporation has received a request to make a
burial on the grounds of a nonsectarian burial society and the
provisions of paragraph (h) of section fifteen hundred twelve of this
article had to be invoked to make the burial then the cemetery
corporation may, at its discretion, commence the process of reacquiring
the unused graves on the grounds of the nonsectarian burial society,
except that any graves that have been reserved for individuals where
such reservations have been recorded on the books and records of the
cemetery corporation shall be exempt from reclamation; or
(2) If routine mailings or proxy mailings are sent to the officers of
record of a nonsectarian burial society and such mailings are returned
by the post office, the cemetery corporation may, at its discretion,
make a second mailing by certified mail return receipt requested to each
officer of record of the nonsectarian burial society as recorded on the
cemetery's books and records and, if each of these mailings is returned
by the post office, the cemetery corporation may, at its discretion,
commence the process of reacquiring the unused graves on the grounds of
the nonsectarian burial society, except that any graves that have been
reserved for individuals where such reservations have been recorded on
the books and records of the cemetery corporation shall be exempt from
reacquisition.
(j) If a cemetery corporation has decided to commence the process of
reacquiring graves owned by a nonsectarian burial society it shall:
(1) send by certified mail return receipt requested to each individual
who has engaged in proprietary activities in connection with graves on
the grounds of a nonsectarian burial society, seeking the names and
addresses of any current officers of the nonsectarian burial society and
informing those individuals of the cemetery corporation's intentions of
reacquiring the unused graves on the grounds of the nonsectarian burial
society;
(2) send by certified mail return receipt requested to each individual
who has a grave reserved or deeded to them a letter seeking the names
and addresses of any current officers of the nonsectarian burial society
and informing such individuals of the cemetery corporation's intentions
or reacquiring the unused graves on the grounds of the nonsectarian
burial society;
(3) post a notice as provided in clause three of subparagraph (iii) of
paragraph (a) of this section;
(4) publish a notice as provided in clause five of subparagraph (iii)
of paragraph (a) of this section;
(5) prepare and submit an affidavit as provided in clause six of
subparagraph (iii) of paragraph (a) of this section; and
(6) upon the sale of any grave or graves on the grounds of the
nonsectarian burial society which have been reacquired by the cemetery
corporation, the cemetery corporation shall distribute the net proceeds
of the sale as provided in paragraph (d) of this section.
(k) The cemetery corporation shall delay the sale of ten percent of
the graves it reacquires from the nonsectarian burial society for twenty
years as a reserve in the event an individual or individuals are
identified who have a valid claim for burial on the grounds of the
nonsectarian burial society.
(l) At the time the graves that have been reacquired by a cemetery
corporation from a nonsectarian burial society are sold, the contract of
sale shall contain a clause in bold type which specifies that the
monuments to be erected on such lot, plot or part thereof, shall conform
to the size, style and type of monuments in the section of the cemetery
where such graves are located.
§ 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.
§ 1517. Crematory operations.
Cemetery corporations that operate a crematory shall have the
following duties and obligations:
(a) Maintenance and privacy. (1) A crematory facility shall be
maintained in a clean, orderly, and sanitary manner, with adequate
ventilation and shall have a temporary storage area available to store
the remains of deceased human beings pending disposition by cremation,
the interior of which shall not be accessible to the general public.
(2) Entrances and windows of the crematory facility shall be
maintained at all times to secure privacy, including (i) doors shall be
tightly closed and rigid; (ii) windows shall be covered; and (iii)
entrances shall be locked and secured when not actively attended by
authorized crematory personnel.
(b) Cremation process. (1) The cremation process shall be conducted in
privacy. No person except authorized persons shall be admitted into the
retort area, holding facility, or the temporary storage facility while
the remains of deceased human beings are being cremated. Authorized
persons, on admittance, shall comply with all rules of the crematory
corporation and not infringe upon the privacy of the remains of deceased
human beings.
(2) The following are authorized persons: (i) licensed, registered
funeral directors, registered residents, and enrolled students of
mortuary science; (ii) officers and trustees of the cemetery
corporation; (iii) authorized employees or their authorized agents of
the cemetery corporation; (iv) public officers acting in the discharge
of their duties; (v) authorized instructors of funeral directing
schools; (vi) licensed physicians or nurses; and (vii) members of the
immediate family of the deceased and their authorized agents and
designated representatives.
(c) Identification of deceased human beings. (1) No crematory shall
cremate the remains of any deceased human being without the accompanying
cremation permit, required pursuant to section four thousand one hundred
forty-five of the public health law which permit shall constitute
presumptive evidence of the identity of the said remains. In addition,
all crematories situated outside the city of New York, must comply with
paragraph (b) of subdivision two of section four thousand one hundred
forty-five of the public health law pertaining to the receipt for the
deceased human being. From the time of such delivery to the crematory,
until the time the crematory delivers the cremains as directed, the
crematory shall be responsible for the remains of the deceased human
being. Further, a cremation authorization form must accompany the permit
required in section four thousand one hundred forty-five of the public
health law. This form, provided or approved by the crematory, must be
signed by the next of kin or authorizing agent attesting to the
permission for the cremation of the deceased, and disclosing to the
crematory that such body does not contain a battery, battery pack, power
cell, radioactive implant, or radioactive device, if any, and that these
materials were removed prior to the cremation process.
(2) Upon good cause being shown rebutting the presumption of the
identity of such remains, the cremation shall not commence until
reasonable confirmation of the identity of the deceased human being is
made. This proof may be in the form of, but not limited to, a signed
affidavit from a licensed physician, a member of the family of the
deceased human being, the authorizing agent or a court order from the
state supreme court within the county of the cemetery corporation. Such
proof shall be provided by the authorizing agent.
(3) The crematory shall have a written plan to assure that the
identification established by the cremation permit accompanies the
remains of the deceased human being through the cremation process and
until the identity of the deceased is accurately and legibly inscribed
on the container in which the cremains are placed.
(d) Opening of container holding the remains of the deceased human
being. (1) The casket, alternative container, or external wrappings
holding the remains of the deceased human being shall not be opened
after delivery to the crematory unless there exists good cause to
confirm the identity of the deceased, or to assure that no material is
enclosed which might cause injury to employees or damage to crematory
property, or upon reasonable demand by members of the immediate family
or the authorized agent.
(2) In such instances in which the casket, alternative container, or
wrappings are opened after delivery to the crematory, such action shall
only be conducted by the licensed funeral director or registered
resident delivering the remains of the deceased human being and if
necessary, with the assistance of crematory personnel and a record shall
be made, which shall include the reason for such action, the signature
of the person authorizing the opening thereof, and the names of the
person opening the container and the witness thereto, which shall be
retained in the permanent file of the crematory. The opening of the
container shall be conducted in the presence of the witness and shall
comply with all rules and regulations intended to protect the health and
safety of crematory personnel.
(e) Ceremonial casket cremation disclosure. In those instances in
which the remains of deceased human beings are to be delivered to a
crematory in a casket that is not to be cremated with the deceased,
timely disclosure thereof must be made by the person making the funeral
arrangements to the crematory that prior to cremation the remains of the
deceased human being shall be transferred to an alternative container.
Such signed acknowledgement of the authorizing person, that the timely
disclosure has been made, shall be retained by the crematory in its
permanent records.
(f) Transferring remains. (1) The remains of a deceased human being
shall not be removed from the casket, alternative container, or external
wrappings in which it is delivered to the crematory unless explicit,
signed authorization is provided by the person making funeral
arrangements or by a public officer discharging his or her statutory
duty, which signed authorization shall be retained by the crematory in
its permanent records.
(2) When the remains of a deceased human being are to be transferred
to an alternative container, the transfer shall be conducted in privacy
with dignity and respect and by the licensed funeral director or
registered resident who delivered those remains and if necessary, with
the assistance of crematory personnel. The transferring operation shall
comply with all rules and regulations intended to protect the health and
safety of crematory personnel.
(g) Commingling human remains. The cremation of remains of more than
one deceased human being in a retort at any one time is unlawful, except
upon the explicit, signed authorization provided by the persons making
funeral arrangements and the signed approval of the crematory, which
shall be retained by the crematory in its permanent records.
(h) Processing of cremains. (1) Upon the completion of the cremation
of the remains of a deceased human being, the interior of the retort
shall be thoroughly swept so as to render the retort reasonably free of
all matter. The contents thereof shall be placed into an individual
container and not commingled with other cremains. The cremation permit
shall be attached to the individual container preparatory to final
processing.
(2) A magnet and sieve, or other appropriate method of separation, may
be used to divide the cremains from unrecognizable incidental or foreign
material.
(3) The incidental and foreign material of the cremation process shall
be disposed of in a safe manner in compliance with all sanitary rules
and regulations as byproducts.
(4) The cremains shall be pulverized until no single fragment is
recognizable as skeletal tissue.
(5) The pulverized cremains shall be transferred to a sealable
container or containers whose inside dimension shall be of suitable size
to contain the entire cremains of the person who was cremated.
(6) The prescribed sealable container or containers shall be
accurately and legibly labeled with the identification of the human
being whose cremains are contained therein, in a manner acceptable to
the division of cemeteries.
(i) Disposition of cremains. The authorizing agent shall be
responsible for the final disposition of the cremains. Cremains must be
disposed of by placing them in a grave, crypt, or niche, by scattering
them in a designated scattering garden or area, or in any manner
whatever on the private property of a consenting owner or by delivery to
the authorizing agent or a person specifically designated by the
authorizing agent. Upon completion of the cremation process, if the
cemetery corporation has not been instructed to arrange for the
interment, entombment, inurnment or scattering of the cremains, the
cemetery corporation shall deliver the cremains to the individual
specified on the cremation authorization form or the funeral firm of
record. The delivery may be made in person or by registered mail. Upon
receipt of the cremains, the individual receiving them may transport
them in any manner in the state without a permit, and may dispose of
them in accordance with this section. After delivery, the cemetery
corporation shall be discharged from any legal obligation or liability
concerning the cremains. If, after a period of one hundred twenty days
from the date of the cremation, the authorizing agent has not instructed
the cemetery corporation to arrange for the final disposition of the
cremains or claimed the cremains, the cemetery corporation may dispose
of the cremains in any manner permitted by this section. The cemetery
corporation, however, shall keep a permanent record identifying the site
of final disposition. The authorizing agent shall be responsible for
reimbursing the cemetery corporation for all reasonable expenses
incurred in disposing of the cremains. Upon disposing of the cremains,
the cemetery corporation shall be discharged from any legal obligation
or liability concerning the cremains. Except with the express written
permission of the authorizing agent, no person shall:
(1) dispose of cremains in a manner or in a location so that the
cremains are commingled with those of another person. This prohibition
shall not apply to the scattering of cremains at sea, by air, or in an
area located in a cemetery and used exclusively for those purposes; and
(2) place cremains of more than one person in the same temporary
container or urn.
(j) Crematory operation certification. Any employee of a crematory
whose function is to conduct the daily operations of the cremation
process shall be certified by an organization approved by the division
of cemeteries. Proof of such certification must be posted in the
crematory and available for inspection at any time. Any new employees of
a crematory required to be certified under this section shall be
certified within one year of their employment. Any employees of a
crematory required to be certified under this section and retained prior
to the effective date of this paragraph shall be certified within one
year of such effective date. Renewal of such certification shall be
completed every five years from the date of certification.
* § 1518. Crematory operations during emergency declaration.
Notwithstanding any other provision of law, for the duration of a
state or county disaster emergency declared pursuant to an executive
order, crematories located in any county of the state may provide
emergency transportation and disposition assistance in such instances
where the crematories in affected areas are inoperable or unable to
provide sufficient capacity for the disposition of human remains during
any period of the declared emergency. Such crematories electing to
provide emergency assistance shall contract for or otherwise utilize any
mode of transportation necessary to transport human remains from areas
of a declared emergency to other crematory operations within the state
with cremation capacity. Transportation and disposition of human remains
from such affected areas shall be conducted by any agent of the
regulated crematory and shall only be permitted with a cremation permit
required pursuant by section four thousand one hundred forty-five of the
public health law attesting to the permission for the cremation of the
deceased and their identity. In all instances of emergency crematory
operations, a fully executed cremation authorization form shall
accompany the human remains and provide the information necessary to
return the cremated remains to the individual authorizing such
cremation. Nothing in this section shall require a crematory to provide
such transportation or additional crematory resources if they are unable
to do so.
* NB There are 2 § 1518's
* § 1518. Natural organic reduction facility operations.
Cemetery corporations that operate a natural organic reduction
facility shall have the following duties and obligations:
(a) Maintenance and privacy. (1) A natural organic reduction facility
shall be maintained in a clean, orderly, and sanitary manner, with
adequate ventilation and shall have a temporary storage area available
to store the remains of deceased human beings pending disposition by
natural organic reduction, the interior of which shall not be accessible
to the general public.
(2) Entrances and windows of the facility shall be maintained at all
times to secure privacy, including (i) doors shall be tightly closed and
rigid; (ii) windows shall be covered; and (iii) entrances shall be
locked and secured when not actively attended by authorized facility
personnel.
(b) Natural organic reduction process. (1) The natural organic
reduction process shall be conducted in privacy. No person except
authorized persons shall be admitted into the reduction area, holding
facility, or the temporary storage facility while the remains of
deceased human beings are being naturally organically reduced.
Authorized persons, on admittance, shall comply with all rules of the
cemetery corporation and not infringe upon the privacy of the remains of
deceased human beings.
(2) The following are authorized persons: (i) licensed, registered
funeral directors, registered residents, and enrolled students of
mortuary science; (ii) officers and trustees of the cemetery
corporation; (iii) authorized employees or their authorized agents of
the cemetery corporation; (iv) public officers acting in the discharge
of their duties; (v) authorized instructors of funeral directing
schools; (vi) licensed physicians or nurses; and (vii) members of the
immediate family of the deceased and their authorized agents and
designated representatives.
(c) Identification of deceased human beings. (1) No natural organic
reduction facility shall naturally organically reduce the remains of any
deceased human being without the accompanying natural organic reduction
permit, required pursuant to section forty-one hundred forty-five of the
public health law which permit shall constitute presumptive evidence of
the identity of the said remains. In addition, all natural organic
reduction facilities situated outside the city of New York, must comply
with paragraph (b) of subdivision two of section forty-one hundred
forty-five of the public health law pertaining to the receipt for the
deceased human being. From the time of such delivery to the natural
organic reduction facility, until the time the natural organic reduction
facility distributes the remains as directed, the facility shall be
responsible for the remains of the deceased human being. Further, a
natural organic reduction authorization form shall accompany the permit
required in section forty-one hundred forty-five of the public health
law. This form, provided or approved by the facility, shall be signed by
the next of kin or authorizing agent attesting to the permission for the
natural organic reduction of the deceased, and disclosing to the natural
organic reduction facility that such body does not contain a battery,
battery pack, power cell, radioactive implant, or radioactive device, if
any, and that these materials were removed prior to the natural organic
reduction process.
(2) Upon good cause being shown rebutting the presumption of the
identity of such remains, the natural organic reduction shall not
commence until reasonable confirmation of the identity of the deceased
human being is made. This proof may be in the form of, but not limited
to, a signed affidavit from a licensed physician, a member of the family
of the deceased human being, the authorizing agent or a court order from
the state supreme court within the county of the cemetery corporation.
Such proof shall be provided by the authorizing agent.
(3) The facility shall have a written plan to assure that the
identification established by the natural organic reduction permit
accompanies the remains of the deceased human being through the natural
organic reduction process and until the identity of the deceased is
accurately and legibly inscribed on the container in which the remains
are placed.
(d) Opening of a container holding the remains of the deceased human
being. (1) The remains of a deceased human being shall be delivered to
the natural organic reduction facility in an alternative container or in
external wrappings sufficient to contain the remains and also designed
to fully decompose in the natural reduction process. Such alternative
container or external wrappings holding the remains of the deceased
human being shall not be opened after delivery to the natural organic
reduction facility unless there exists good cause to confirm the
identity of the deceased, or to assure that no material is enclosed
which might cause injury to employees or damage to natural organic
reduction facility property, or upon reasonable demand by members of the
immediate family or the authorized agent.
(2) In such instances in which alternative container or wrappings are
opened after delivery to the natural organic reduction facility, such
action shall only be conducted by the licensed funeral director or
registered resident delivering the remains of the deceased human being
and a record shall be made, which shall include the reason for such
action, the signature of the person authorizing the opening thereof, and
the names of the person opening the container or wrappings and the
witness thereto, which shall be retained in the permanent file of the
natural organic reduction facility. The opening of the container or
wrapping shall be conducted in the presence of the witness and shall
comply with all rules and regulations intended to protect the health and
safety of natural organic reduction facility personnel.
(e) Ceremonial casket natural organic reduction disclosure. In those
instances in which the remains of deceased human beings are to be
delivered to a natural organic reduction facility in a casket or other
container that is not to be naturally organically reduced with the
deceased, timely disclosure thereof must be made by the person making
the funeral arrangements to the natural organic reduction facility that
prior to natural organic reduction the remains of the deceased human
being shall be transferred to a container or in external wrappings
sufficient to contain the remains and also designed to fully decompose
in the natural reduction process. Such signed acknowledgement of the
authorizing person, that the timely disclosure has been made, shall be
retained by the natural organic reduction facility in its permanent
records.
(f) Transferring remains. (1) The remains of a deceased human being
shall not be removed from the casket, alternative container, or external
wrappings in which it is delivered to the natural organic reduction
facility unless explicit, signed authorization is provided by the person
making funeral arrangements or by a public officer discharging their
statutory duty, which signed authorization shall be retained by the
natural organic reduction facility in its permanent records.
(2) When the remains of a deceased human being are to be transferred
to an alternative container, the transfer shall be conducted in privacy
with dignity and respect and by the licensed funeral director or
registered resident who delivered those remains. The transferring
operation shall comply with all rules and regulations intended to
protect the health and safety of facility personnel.
(g) Commingling human remains. The natural organic reduction of
remains of more than one deceased human being in a reduction container
at any one time is unlawful, except upon the explicit, signed
authorization provided by the persons making funeral arrangements and
the signed approval of the natural organic reduction facility, which
shall be retained by the natural organic reduction facility in its
permanent records.
(h) Processing of remains. (1) Upon the completion of the natural
organic reduction of the remains of a deceased human being, the interior
of the natural organic reduction container shall be thoroughly swept or
otherwise cleaned so as to render the natural organic reduction
container reasonably free of all matter. The contents thereof shall be
placed into an individual container and not commingled with other
remains. The natural organic reduction permit shall be attached to the
individual container preparatory to final processing.
(2) A magnet and sieve, or other appropriate method of separation, may
be used to divide the remains from unrecognizable incidental or foreign
material.
(3) The incidental and foreign material of the natural organic
reduction process shall be disposed of in a safe manner in compliance
with all sanitary rules and regulations as byproducts.
(4) The remains shall be pulverized until no single fragment is
recognizable as skeletal tissue.
(5) The pulverized remains shall be transferred to a container or to
multiple containers, if so requested in writing by the person making the
funeral arrangements for the natural organic reduction. Such container
or containers shall have inside dimensions of suitable size to contain
the remains of the person who was naturally organically reduced.
(6) The prescribed container or containers shall be accurately and
legibly labeled with the identification of the human being whose remains
are contained therein, in a manner acceptable to the division of
cemeteries.
(i) Disposition of remains. The authorizing agent shall be responsible
for the final disposition of the remains. Disposition of remains
resulting from the natural organic reduction process are not recoverable
once scattered or interred. Remains shall be disposed of by scattering
them in a designated scattering garden or area in a cemetery, or by
prior authorization by the cemetery corporation, by placing them in a
grave, crypt, or niche, or retrieval of the remains pursuant to prior
authorization by the authorizing agent or a person specifically
designated by the authorizing agent. Upon completion of the natural
organic reduction process, the cemetery corporation shall notify the
authorizing agent and funeral firm making such arrangements that the
natural organic reduction process has been completed and that the
remains are prepared to be disposed of in accordance with this
paragraph. Upon receipt of the remains, the individual receiving them
may transport them in any manner in the state without a permit, and may
dispose of them in accordance with this section. After disposition, the
cemetery corporation shall be discharged from any legal obligation or
liability to deliver the remains to the authorizing agent or any other
person enumerated under paragraph (a) of subdivision two of section
forty-two hundred one of the public health law concerning the remains.
If, after a period of one hundred twenty days from the date of the
natural organic reduction, the authorizing agent has not instructed the
cemetery corporation to arrange for the final disposition of the remains
or claimed the remains, the cemetery corporation may dispose of the
remains in any manner permitted by this section. The cemetery
corporation, however, shall keep a permanent record identifying the site
of final disposition. The authorizing agent shall be responsible for
reimbursing the cemetery corporation for all reasonable expenses
incurred in disposing of the remains. Upon disposing of the remains, the
cemetery corporation shall be discharged from any legal obligation or
liability to deliver the remains to the authorizing agent or any other
person enumerated under paragraph (a) of subdivision two of section
forty-two hundred one of the public health law concerning the remains.
Except with the express written permission of the authorizing agent, no
person shall place remains of more than one person in the same temporary
container or urn.
(j) Natural organic reduction facility operation certification. Any
employee of a natural organic reduction facility whose function is to
conduct the daily operations of the cremation or natural organic
reduction process shall be certified by an organization approved by the
division of cemeteries. Proof of such certification shall be posted in
the natural organic reduction facility and available for inspection at
any time. Any new employees of a natural organic reduction facility
required to be certified under this section shall be certified within
one year of their employment. Any employees of a natural organic
reduction facility required to be certified under this section and
retained prior to the effective date of this paragraph shall be
certified within one year of such effective date. Renewal of such
certification shall be completed every five years from the date of
certification.
(k) The cemetery board, in consultation with the department of health,
the department of environmental conservation, and any other state agency
deemed necessary, may promulgate rules and regulations consistent with
law to effectuate the provisions of this section.
* NB There are 2 § 1518's