Of Grandparents, Prayers and Sepulchers

My loyal legion of regular readers is aware of my intrigue with cases that adjudicate “one off” upstate “personal and people” issues that are asymmetric to “run of the mill” downstate “business and financial” litigation disputes.  Three recent decisions fall squarely within my favored genre.  The first addressed visitation rights of a maternal grandfather.  The second considered issues arising out of preparation for a Bar Mitzvah under Jewish law.  And the third related to the disposition of human cremated remains.

Valerio v. Schumacher, 2015 NY Slip Op 50577(U), Supreme Court, Monroe County (Dollinger, J.) [decided on February 20, 2015]

Supreme Court briefly summarized the parties and issue:

In this matter, maternal grandfather has applied to this court for an Order of Visitation to be granted so he may have visitation with his two grandchildren, ages fourteen (14) and twelve (12). The Respondents are the parents of these two children. They oppose any such visitation, and now move to dismiss the grandfather’s petition.

Outlined the facts:

The facts here are often disputed, but one thing is clear, for a majority of these children’s lives they had a substantial and loving relationship with their grandfather. While there is some dispute as to the level of involvement, it is clear that for a large portion of their lives, these children saw their grandfather on, at least, a weekly basis. However, over the last three years the relationship has changed significantly and there has been little contact. The reasons behind this are again disputed, but critical to the court’s decision.

When grandparents seek visitation under the grandparent visitation statute, the court must undertake a two-part inquiry. The court must first find standing based on death of the grandparent’s child or equitable circumstances. If the court concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild[ren]…In looking at the first prong of this two-part test, with both parents alive and well, the grandfather must then establish “equitable circumstances” to have standing.

Summarized the prior law:

Prior to 1975, visitation was available only when one of the parents had died. “Grandparents had no independent standing to maintain the proceeding; their rights were derived entirely from the deceased parent.”…In 1975 the statute was amended to expand standing to “where circumstances show that conditions exist which equity would see fit to intervene.” DRL § 72. The amended statute “rests on the humanitarian concern that visits with a grandparent are often a precious part of a child’s experience and there are benefits which devolve upon the grandchild…which he cannot derive from any other relationship.”[.]

Here, it seems unquestioned that for the majority of their lives these two children had substantial relationship with their grandfather, which, for a variety of disputed reasons was severed, almost completely, over the last three years. In [a prior case], the court state[d]:

[A]n essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship. It is not sufficient that the grandparents allege love and affection for their grandchild. They must establish a sufficient existing relationship with their grandchild, or in cases where that has been frustrated by the parents, a sufficient effort to establish one, so that the court perceives it as one deserving the court’s intervention. If the grandparents have done nothing to foster a relationship or demonstrate their attachment to the grandchild, despite opportunities to do so, then they will be unable to establish that conditions exist where equity would see fit to intervene.

Delineated the specific question presented:

The question here then is whether the grandfather did enough during this three-year hiatus to meet the “sufficient effort” standard. The courts provide further guidance on this vital detail. In [a prior case] the court state[d] that the grandparent “must show that they did everything possible under the circumstances to establish such a relationship.” In [the prior case] the standard is less strenuous: “The evidence necessary will vary in each case but what is required of grandparents must always be measured against what they could reasonably have done under the circumstances.”[.]

And applied the facts to the law:

Three years is a relatively long time when applying to the life of a fourteen and twelve year old child. There are allegations on both sides regarding what went on during this time – and prior. The grandfather paints the picture that he was very involved in his grandchildren’s lives for over ten years. He often provided daycare and transportation, attended sporting events, and went on vacations with the entire family. Then when things went sour, he attempted to keep in contact through texting, cards, and still attended sporting events. He surmises that he became estranged as a result of his divorce from his wife (the maternal grandmother). The parents allege that the grandfather has exaggerated his involvement during those initial ten-plus years. They claim that it was the grandfather’s about-face behavior three years ago that caused the disconnect between not only the grandchildren, but themselves too. They describe the grandfather as becoming mentally unstable and financially irresponsible. They do admit that he did attempt to see the grandchildren during the three-year period, although they describe the effort as limited, at best.

The court is left with a difficult decision involving what can and should be a precious relationship. There is a strong presumption that a fit parent’s decisions are in the child’s best interests…However, that presumption, while heavy, does not automatically extinguish the grandparent’s visitation rights. This matter is full of conflicting allegations which make the decision even more difficult. In the end, it seems clear that the grandfather has alleged enough to, at the very least, survive a motion to dismiss. Regarding the crucial question of whether the grandfather made a “substantial effort” to establish the relationship with his grandchildren over the last three-years, the court, based on limited information, rules that he did, especially considering the circumstances—again, at least enough to survive this motion to dismiss. As a result, the grandfather is determined to have standing at this point in the proceeding and the court orders a hearing to determine the best interests of the children.

Zyngier v. Lurie, 2014 NY Slip Op 33494(U), Supreme Court Westchester County (Latwin, J) [decided on November 17, 2014]

At the outset of this small claims action “in which the claimant [sought] a refund of the down payment he made to defendants” and “the defendants counterclaimed for the work they performed”, the Court briefly summarized the legal conundrum.

While the City Court may have limited jurisdiction under the New York State Constitution, Article VI, section 17, that does not mean it cannot be faced with geo-political issues, gender conflicts or theological dilemmas. Such is the case here. In addition to contract law issues, this Court is presented with the question of what is prayer and who decides what prayer is appropriate. This is a small claims action in which the claimant seeks a refund of the down payment he made to defendants. The defendants counterclaim for the work they performed.

Summarized the facts:

The parties entered into a written agreement whereby the defendants agreed to perform services and provide materials to prepare plaintiff’s son for his bar mitzvah for a fee of $3,500. According to Jewish law, when Jewish boys become 13 years old, they become accountable for their actions and subject to the commandments and laws and thus become a bar mitzvah (a son of the commandments). The bar mitzvah becomes responsible for Jewish ritual law, tradition, and ethics, and is able to participate in all areas of Jewish community life, in particular reading from the Torah, and being counted in determining whether or not there is a minyan – the quorum needed to hold communal prayer. A ceremony is usually held on the Sabbath immediately following the 13th birthday. At the ceremony, the bar mitzvah reads from the Torah, and the Haftorah (readings from the books of the Prophets), and may lead the communal prayer. While the celebration of a bar mitzvah has been accompanied by a celebratory meal, the celebration has morphed in some cases into over-the-top spectacles. This has led some to see the party as the event rather than the ritual.

To prepare to be a bar mitzvah, the boy must be able to read Hebrew and learn the prayers associated with the service. Some learn at home, some attend Hebrew schools, and others are trained by teachers, usually Rabbis and Cantors. Plaintiff chose the latter course.

After the agreement was made, defendants a rabbi and a cantor began performing the services called for under the agreement. Some eight months later, and six weeks before the scheduled ceremony, plaintiff objected to two prayers in the ceremony proposed by defendants. He objected to the prayer for the United States and Israel. That prayer is usually said as a congregation in English, as follows:

We pray for all who hold positions of leadership and responsibility in our national life. Let your blessing rest upon them, and make them responsive to your will, so that our nation may be to all the world an example of justice and compassion.

Deepen our love for our country and our desire to serve it.  Strengthen our power of self-sacrifice for our nation’s welfare. Teach us to uphold its good name by our right conduct.

Cause us to see clearly that the well being of our nation is in the hands of all its citizens; imbue us with zeal for the cause of liberty in our own land and in all lands; help us always to keep our homes safe from affliction, strife, and war. Amen.

We pray for the land of Israel and its people. May its borders know peace, its inhabitants tranquility. And may the bonds of faith and fate which unite the Jew of all lands be a source of strength to Israel and to us all. God of all lands and ages, answer our constant prayer with a Zion once more aglow with light for us and for all the world and let us say: Amen.

The basis for the objection to this prayer is that the bar mitzvah’s mother is a Lebanese Christian who lost family members during the wars with Israel, and the father is Brazilian. Claimant said neither parent has an ancestral tie to the United States and the mother felt uncomfortable praying for the perceived adversary, Israel. Thus, Claimant felt the inclusion of this prayer would tend to politicize the ceremony and be at odds with their personal history.

The second prayer was the Avot v’Imohot, (roughly translated as “our fathers and mothers”). It is asks God to remember our ancestors and treat us kindly because of God’s relationship with them. The prayer used to be just the Avot, calling out the names of the patriarchs, Abraham, Isaac and Jacob, but recently, in pursuit of a more welcoming and gender-neutral service, some congregations have added the names of the matriarchs, Sarah, Rebecca, Rachel, and Leah, to the prayer, The prayer as proposed, reads, in substance, with the added words underlined

Blessed are You, Adonai our God,

God of our fathers and mothers,

God of Abraham, God of Isaac, and God of Jacob,

God of Sarah, God of Rebecca, God of Rachel, and God of Leah,

the great, mighty and awesome God, transcendent God

who bestows loving kindness, creates everything out of love,

remembers the love of our fathers and mothers, and brings

redemption to their children’s children for the sake of the Divine


Sovereign, Deliverer, Helper and Shield,

Blessed are You, Adonai, Abraham’s Shield and Sarah’s Helper.

The claimant objected to this prayer as it could have the potential of highlighting that the bar mitzvah’s mother was not Jewish.

The defendants refused to omit these prayers saying that they had always been a part of the ceremony they proposed and that they were significant, if not essential prayers in the service.

How are we to pray and who decides what we pray?

One time a Jewish peasant boy, a shepherd from the country, came to the big town to celebrate a holiday. He didn’t know how to pray. He could not read Hebrew. He arrived at the town synagogue and watched the congregants praying and singing together. He wondered, “What am I to do since I do not know how to pray?”

The boy stood still for a couple of minutes as the rest of the congregation continued praying and then the young boy stood up and spoke loudly.

“I am going to pray to God in the way I know best. I will whistle to God as I whistle to my flock of sheep.”

He began whistling the sweet calling as most shepherds know. The Rabbi and the congregation turned and stared at him. The boy continued whistling with all his might not caring what other people thought.

Now, it happened to be, that this particular holiday, all the heavenly gates were shut but suddenly, because of this pure whistling of the heart, all the gates burst open. The prayers of Israel were finally heard. [citation omitted]

Outlined the conflicting issues before the Court:

The Court is aware that there is no biblical prescription of what prayers are required to be said at a bar mitzvah service. Other than the prayers before and after the reading of Torah and Haftorah, none of the prayers are mandatory, although many traditional prayer are bible based and overwhelmingly offered. A congregant from New York could likely walk into a synagogue anywhere in the world and not find much variation (except that translated prayer would be in the native language, not necessarily in English). Virtually the same prayers would be said in virtually the same order. This is a matter of tradition established over the 5775 years. Naturally, as time and circumstances change, so too may the traditional prayers evolve. For instance, a prayer for healing, Mi Shebeirach, has been added to the liturgy in many synagogues in the last twenty years. The addition of the matriarchs to the Avot is another evolution of the tradition. The prayer for the United States and the prayer for Israel are optional and not universally said. The Avot, while optional, is universally said and the addition of the matriarchs is becoming so.

This Court is not the proper forum, nor is it capable of determining what prayer anyone should say or how it is to be said. The Court has little insight as to whether certain words, heartfelt whistling, or other mode of communication will find favor with any particular deity. That is better left to theologians. Nor will the Court impose any prayer regimen on either the claimant or the defendants. That is their personal choices – not an issue of secular law.

On the other hand, this Court is the proper place to determine questions of law. One of the essential elements of a contract is that there be a meeting of the minds or mutual assent…The manifestation of mutual assent must be sufficiently definite to assure that the parties are truly in agreement with respect to the material terms. A court cannot enforce a contract unless it is able to determine what the parties actually agreed to…If an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract[.]

The pertinent term of the agreement obligates the defendant to provide “all liturgical and Torah text for custom prayer book”. There is no discussion as to whom if anyone has final editorial say on the content of the custom prayer book or how any dispute over the content was to be resolved. It appears to not have been contemplated by the parties and not a part of any agreement between them. Thus, the contract lacks the essential element of a meeting of the minds on this issue and the contract must fail. In the absence of any agreement between the parties, the Court cannot make an agreement for the parties.

And applied the facts to the law:

While the contract fails, that does not leave the defendants without a remedy. The defendants filed a counterclaim seeking remuneration for the services they provided to plaintiff as quantum meruit. To state a cause of action to recover in quantum meruit, a plaintiff must allege: (1) the performance of services in good faith; (2) the acceptance of the services by the person to whom they are rendered; (3) an expectation of compensation therefor; and (4) the reasonable value of the services allegedly rendered.

There is no dispute that the defendants performed services for the plaintiff as anticipated by the agreement, that the plaintiff accepted those services over a period of 8 months, and the defendants expected to be paid for their services. The defendants testified that they spent 25 hours on the plaintiff’s sons bar mitzvah and that their hourly rate was $125 per hour, for a total value of $3,125 – almost 90% of the full contract price. The Court finds this excessive.

Claimant paid defendants a $1,750 down payment under the agreement. The agreement says “A 50% deposit is payable upon signing this contract. ($1,750).” From this language, the intent of the parties was that this down payment was due upon the signing. It does not say this down payment is apportionable or refundable. The claimant is entitled to apply the down payment against any sums otherwise due defendants.

It is unfortunate that the parties could not have worked together to fashion agreeable prayers that would have been sensitive to plaintiff’s circumstances and stay in keeping with the tradition. For instance, there appears not to have been any objection to the Kaddish prayers, which end with a plea for peace over all Israel and the whole world. “He who makes peace in the heavens, may He make peace, for all Israel and the whole world; and let us say, Amen.”  Perhaps using similar language that was unobjectionable in the Kaddish could have help to make the occasion one of joy instead of discord.

Providing the parties with substantial justice according to the rules and principles of substantive law…and under a fair interpretation of the evidence…with this Court having had the opportunity to observe and evaluate the testimony and demeanor of the witnesses and to evaluate the credibility of the witnesses…the Court finds that the contract fails, plaintiff is entitled to a credit for his $1,750 down payment, and defendants are entitled to $2,500 on their counterclaim.

Gerardi v. Paul W. Harris Funeral Home Inc., 2014 NY Slip Op 24424, Supreme Court, Monroe County (Stander, J.) [decided on December 19, 2014]

Supreme Court briefly summarized the pending motion:

The Plaintiff, Bonnie Benoit Gerardi, submits a motion seeking summary judgment on her claims set forth in the Complaint against Defendant, Paul W. Harris Funeral Home, Inc. The complaint alleges a claim for loss of Sepulcher resulting from Defendants failure and refusal to return the cremated ashes of Plaintiff’s husband, Anthony Gerardi, to Plaintiff. The complaint alleges that the Defendant gave the ashes to an unauthorized third party. Plaintiff asserts that the intentional, reckless, and/or negligent actions of the Defendant caused her to undergo emotional and physical distress and mental anguish and the Plaintiff sustained damage. Plaintiff also sets forth a second cause of action, based on the reckless and intentional conduct of Defendant, for punitive damages.

The affidavits submitted in support of the Plaintiff’s motion establish that the Plaintiff, Bonnie Benoit Gerardi, and Anthony Gerardi were married on September 29, 2007. The Plaintiff’s affidavit sets forth this evidence in support of her motion for summary judgment. The deceased, Anthony Gerardi, died on November 5, 2013. At that time they were still married. When Anthony Gerardi died, the Plaintiff met with the Defendant and engaged the funeral home to handle the decedent’s remains, conduct and supervise the visitation, and to perform cremation. The Plaintiff also received the bill for the funeral and professional undertaking services, and paid the bill for these services. That in accordance with the services of the funeral home, Plaintiff was advised that the ashes could be stored with the Defendant until she decided upon the disposition of the ashes. When the Plaintiff returned to sign various documents and to request the ashes of her husband, the Defendant advised that the executor of the decedent’s estate had priority and that the ashes were turned over to the executor. The will of Anthony Gerardi was never probated and no executor of the will was appointed by the Court. The Plaintiff’s motion for summary judgment relies upon [a section of the Public Health Law] for the legal basis of her claim that she had priority to the ashes of Anthony Gerardi over any proposed executor of a will. Plaintiff asserts that the ashes of her late husband were unlawfully buried in Holy Sepulchre Cemetery without her knowledge or permission on December 7, 2013. Plaintiff seeks summary judgment against the Defendant for loss of her right of Sepulcher, and for damages.

Outlined the submissions:

The Public Health Law sets forth a definitive list of priority of persons having the right to control the disposition of the remains of a decedent…The decedent’s surviving spouse is in the second priority position. There is no showing in the Plaintiff’s papers of any person designated in a written instrument as set forth in the statute or of a will…Based upon the evidence submitted and the law regarding control of disposition of remains, Plaintiff has demonstrated that she is entitled to judgment as a matter of law[.]

Thus the Plaintiff is in the priority position to be in control of the decedent’s, Anthony Gerardi’s, remains.

The contentions of the party:

The burden then shifts to the Defendant to submit evidence which raises a triable question of fact. Although provided the opportunity, Defendant does not submit any affidavits specifically opposing the summary judgment motion of the Plaintiff. However in the papers originally opposing the motion for a default judgment or summary judgment, Defendants, set forth its position. The affidavit of Michael Harris, Manager of the Defendant, advises that on November 5 or 6, 2013 he met with Plaintiff and several of the decedents siblings to discuss funeral arrangements, and everyone agreed upon cremation and burial at Holy Sepulchre Cemetery alongside his deceased brother. Defendant submits a written statement pursuant to [a section of the Public health Law] indicating that Plaintiff executed the statement that she has the right to control disposition of the deceased’s remains. The document is dated November 6, 2013. The Defendant also submits another document, dated November 7, 2013 but showing a signature date of November 6, 2013, authorizing cremation and disposition signed by Plaintiff as the surviving spouse. The “Final Disposition” section indicates that Defendant is authorized to receive the cremated remains; however, the section to state how the cremated remains of the deceased will be disposed of is blank.

The Defendant then states there was a call from a family member stating that a will was located; and then that it received a letter on November 11, 2013 from an attorney, who represents the estate of the deceased, indicating there was a will. This attorney letter requests that “[Defendants] retain custody of the remains for safekeeping until the issue of custody was resolved”. The Defendant states that it received a letter dated November 12, 2013 from counsel enclosing a copy of the deceased’s will and indicating the attorney represented the nominated executor of the estate of the deceased. This letter indicates that…the Will indicates the wishes of the deceased to be buried; that the attorney spoke with the Plaintiff and she indicated her desire to have the cremated remains interred at Holy Sepulchre Cemetery.

On November 14, 2013 Defendant concedes that Plaintiff came to the office to execute the necessary paperwork for the funeral expenses to be paid from an insurance policy; and that Defendant advised he could not release the remains to Plaintiff because Defendant was bound by law to follow the wishes of the executor of the estate named in the will. Based on the executors instructions and the will, the remains were delivered for burial on December 7, 2013 to Holy Sepulchre. Defendant asserts that is properly maintained custody of the remains and delivered them for burial pursuant to the instructions of the executor of the estate.

Applied the law to the facts:

The Public Health Law…sets forth the priority for the right to control disposition of the remains of Mr. Gerardi. The Plaintiff, as surviving spouse, is in the second position of priority. There is no evidence of a written instrument executed pursuant to [the law]. There is evidence of a Will of the deceased. A Will that makes a “designation of a person for the disposition of one’s remains or directions for the disposition of one’s remains in a will…shall be considered reflective of the intent of the decedent with respect to the disposition of the decedent’s remains…”  The will does not have to be probated for actions taken reasonably and in good faith based upon the directions in the will regarding disposition of one’s remains to be valid…The statute also provides protection from civil liability to funeral homes for “actions taken reasonably and in good faith to carry out the written directions of a decedent as stated in a will…”.  The statute also provides that every dispute relating to the disposition of the remains of a decedent “shall be resolved by a court…” And that there is no liability “for refusal to provide such [services of disposition of remains], when control of the disposition of such remains is contested, until such person receive a court order . . . .”…The cremation of a deceased has an additional requirement of another form that sets forth the declaration of intent for disposition of the remains[.]

Here the Plaintiff, as the surviving spouse, executed on November 6, 2013 the document indicating she had the right to control disposition of the remains of Anthony Gerardi; and indicating she had no knowledge of a will. The only one with priority above her would be a person designated in a written instrument per the statute; and there is not such a document. A will that designates the disposition of the remains would also take priority. The Will which was submitted by an attorney of the alleged executor of the estate of the deceased, to the Defendant, indicates only a statement “I would request that my remains be buried next to the burial place of my beloved wife, Muriel J. Gerardi, if she shall predecease me”…This language is not a designation of a person for disposition of his remains. Thus, there is no written instrument designating directions for the disposition of the remains of the deceased. The surviving spouse has priority for the right to control the disposition of the remains of Anthony Gerardi.

The Defendant fails to submit evidence sufficient to establish a triable question of fact. The Plaintiff is entitled to summary judgment on her claim for liability for loss of sepulcher.

There is statutory immunity from civil liability under [the Public Health Law], however there is little case law addressing these provisions of [the law]; however, the Second Department has analyzed this law and states:

The common-law right of sepulcher gives the next of kin the absolute right to the immediate possession of a decedent’s body for preservation and burial or other disposition of the remains, and damages may be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent’s body…If a violation of the right of sepulcher is established, the next of kin may be compensated for the emotional suffering and mental anguish which they experienced as a result…In order to recover for such emotional injuries, it must be shown that the injuries were “the natural and proximate consequence of some wrongful act or neglect on the part of the one sought to be charged[.]”

[T]he court state[d] that “[t]he statutory immunity from civil liability requires, as a condition precedent, that the person acted “reasonably” and in “good faith”…The funeral firm must also establish that it requested and received the written statements required under [the Public Health Law] in order to be entitled to the statutory protections[.]

And explained the determination by the Court:

The Defendant fails to submit any evidence that there is a written statement as required by the statute from any person other than the Plaintiff. Even after notice of the will, there is no showing which indicates why another person, other than the spouse, was authorized to control the right of disposition of the remains of Anthony Gerardi. Further the written statement of the Plaintiff regarding disposition of the remains is blank, with no directions or instructions by Plaintiff for disposition of the remains. The will language regarding burial next to his ex-wife is inapplicable, as that person is still alive. There is nothing in writing authorizing burial of the cremated remains or any location for burial.

The Plaintiff and the Defendant both indicated that there was a discussion regarding Plaintiff directing the disposition of the remains and obtaining the ashes; and the Defendant, as the funeral director, advised Plaintiff that the executor had priority over controlling disposition of the remains. There is no paperwork authorizing the executor, who was never appointed, to be the person directing control of the disposition. Instead the remains were provided for burial without the paperwork. The Defendants fail to establish that it acted “reasonably” and in “good faith”…The Defendants also fail to establish that it requested and received the written statements required under [the Public Health Law] in order to be entitled to the statutory protections…The Defendant is not entitled to the statutory protections from liability as the conditions precedent for such protections do not exist[.]

Valerio, Zyngier and Gerardi – while atypical compared to the business and entertainment litigation that is often reported “above the fold” – are prototypical of the variety of personal and family-related issues that our Courts address every day and are not covered by the popular press.

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