M E M O R A N D U M
SUPREME COURT: QUEENS COUNTY
IA PART: 13
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BY: CHARLES J. THOMAS
MAXINE MARKS, et al.,
Plaintiff(s), INDEX NO.: 26343/98
MOTION DATE: 12/1/99
- against -
CALENDAR NO.: 1
LEBANON CEMETERY ASSOCIATION OF
QUEENS, INC., etc., et al.,
DATED: March 17, 2000
Defendant(s)
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In this action to recover damages arising out of improper burials plaintiffs seek an order (1) dismissing the affirmative defenses; (2) granting partial summary judgment on the first eleven causes of action and severing the twelfth and thirteenth causes of action; and (3) imposing sanctions, costs and attorney fees against the defendants for asserting frivolous defenses to this action. Defendants cross-move in opposition, and seek an order dismissing the complaint on the grounds that it fails to state a cause of action and, in the alternative, seek an order (1) dismissing the claims asserted by Stephen Marks and Morgan Marks on the grounds of lack of capacity to sue (2) dismissing the twelfth and thirteenth causes of action on the grounds that they fail to state a cause of action; and (3) granting leave to amend their answer in order to assert as affirmative defenses release, consent and mutual mistake.
Plaintiff Maxine Marks is the present owner of a four grave family plot, known as the Block-Feldman-Gold plot W571, in Mount Lebanon Cemetery, in Glendale, New York. The cemetery is operated by defendant Mount Lebanon Cemetery Association of Queens, Inc., a not-for-profit corporation, and was founded in 1915 as a cemetery for members of the Jewish faith. Mrs. Marks' grandfather, Louis M. Block was buried in the rear western half of the plot in May 1944. In April 1956, Morris Gold was buried in the rear line of the eastern half of the plot, leaving an empty grave between the graves of Morris Gold and Louis Block, and an empty grave on the other side of Louis Block's grave. In May 1959, Mary Block, the grandmother of Maxine Marks, was buried in the family plot and a foot stone was later erected. On February 21, 1998 Ruth Block Miller, the mother of Maxine Marks, died. Mrs. Miller was a resident of Florida, at the time of her death. Maxine and her husband Stephen made arrangements while in Florida for her mother's funeral with the assistance of a Florida funeral home. On February 25, 1998 Mrs. Miller was buried in the family plot in Mount Lebanon, and the family's rabbi performed a grave side service attended by Maxine and Stephen Marks and their adult son Morgan.
In July 1998 the Marks family received a telephone call from William Pardue a grave digger at Mount Lebanon who had assisted in preparing the grave of Ruth Miller. Mr. Pardue informed the Marks that the remains of Mrs. Miller had been buried, at the direction of the cemetery management, directly upon the remains of Mary Block, and that Mary Block's foot stone had been moved over two graves to the left. The Marks also received a telephone call from a local television news reporter who had been contacted by Mr. Pardue. Counsel for the Marks contacted the cemetery on August 18, 1998, and met with their counsel, Robert Cantor, on August 26, 1998 to discuss the alleged improprieties. Mr. Cantor, on behalf of the cemetery, asserted that there had been no improprieties; that the cemetery's burial records were correct; and that Mary Block and Ruth Block Miller had been buried in separate graves. Mr. Cantor attributed Mr. Pardue's allegations to an ongoing hostile labor dispute between the grave diggers and the cemetery's management. Mr. Cantor informed plaintiffs' counsel that the New York State Division of Cemeteries was conducting an investigation, and made available previously sworn to affidavits by Robert Houde, the cemetery's assistant superintendent, and Thomas Grosser, the foreman assigned to the Miller funeral. Mr. Houde and Mr. Grosser both stated in their affidavits that nothing unusual had occurred at the burial of Ruth Miller; that the grave had been opened without incident; that the casket had been lowered to the standard burial depth without incident; and that nothing unusual had been reported to them by the grave diggers. Mr. Cantor, in the presence of plaintiff's counsel telephoned Herbert Stolitzky, the cemetery's president, who confirmed that Mary Block's foot stone had been moved. Mr. Cantor, stated that the foot stone was moved because the cemetery was replanting grass; that the replanting was done with the family's permission, and that the cemetery workers must have neglected to return the foot stone to its proper place.
The State Division of Cemeteries opened an investigation into improper practices at Mount Lebanon, following the receipt of a letter dated July 7, 1998 from Jack Ryan, the president of the union local representing the grave diggers, and the filing of a formal complaint on July 31, 1998 by William Pardue. The letter and complaint contained four separate allegations, one of which concerned the Miller burial. The state investigators interviewed the four grave diggers who had opened the grave for Ruth Miller's internment. The grave diggers stated that when they went to open the grave, they discovered the foot stone of Mary Block, and notified Robert Houde, who in turn notified Superintendent John Daidone. The grave was then opened and the top of a casket was found. The grave diggers stated that Daidone instructed them to cover the casket with some dirt, and to move Mary Block's foot stone over two graves to the left where, according to cemetery records, she was buried. The burial of Ruth Miller then proceeded, and the family was never notified of the problem, the multiple burials, or the moving of the foot stone. The state investigators interviewed Mr. Houde on August 22, 1998, and Mr. Daidone on August 24, 1998. Both indicated that Houde supervised the opening of the grave. Mr. Houde told the investigator that when he found the foot stone, he notified Daidone, who checked the office records and told him that the foot stone was in the wrong location, and that it should be moved to the correct burial location two graves to the left. After moving the foot stone, Houde remained at the site until the grave was opened to a depth of two feet and then left. Houde denied seeing any wood or casket in the grave, and denied receiving any such information from the grave diggers. Daidone denied any knowledge of any problems at the grave site, other than Houde's notification concerning the foot stone. The cemetery's vice-president Jay Ivler was interviewed by the state investigator on August 22, 1998 and stated that the cemetery had conducted its own internal investigation and found nothing to substantiate the grave diggers' allegations.
Plaintiffs' counsel and Mr. Cantor exchanged correspondence on August 27, 1998, at which time the cemetery reasserted its claim that the cemetery's records indicated that Mary Block was buried in the proper grave in 1959. The parties agreed, however, to open the grave of Ruth Miller, at the cemetery's expense, and the state agency was so notified on September 3, 1998. The state investigator reinterviewed Houde on September 4, 1998 and he again denied any knowledge of a multiple burial in the Miller grave. Mr. Daidone refused to be reinterviewed. Shortly thereafter, Mr. Cantor notified the state agency that both Daidone and Houde now admitted to having seen wood fragments in the open grave. The grave was opened on September 24, 1998, and in attendance were Herbert Stolitzky, Jay Ivler, Robert Houde, John Daidone and Patrick Joyce, on behalf of the cemetery, along with the cemetery's counsel; Maxine and Stephen Marks and their counsel; and two representatives from the State Division of Cemeteries. Upon opening the grave of Ruth Miller, pieces of wood, human remains, and three formaldehyde bottles were found under the casket of Ruth Miller. All parties agreed that these remains were those of Mary Block. Ruth Miller's casket was removed from the grave, and the remains of Mary Block were placed in a separate wooden box. The grave of record of Mary Block was also opened and found to be empty. The remains of Mary Block were then reburied in that grave. The remains of Ruth Miller were reburied in the grave in question. The state agency reinterviewed Houde and Daidone on February 9, 1999, at which time they admitted they had lied at the earlier interview. They both acknowledged that they had seen pieces of wood when the grave was originally opened in February 1998, but stated that they did not inform Stolitzky or Ivler about the double burial until September 1998, after they learned that the grave would be reopened.
The State Cemetery Board, in an order dated July 9, 1999 adopted the investigative report of June 1, 1999, in its entirety as preliminary findings of fact, and made the following pertinent preliminary determinations:
"1. That the acts of the Cemetery in permitting and allowing the remains of Mary Block to be wrongly interred in the lot of Ruth Miller constitute a violation of N-PCL ''1510(c), and 1512(d), and are indicative of gross mismanagement and negligence.
2. That the acts of the Cemetery in permitting and allowing the remains of Ruth Miller to remain interred on top of the remains of Mary Block after the grave was opened and wood fragments were observed constitute a violation of N-PCL ''1510(c) and 1512(e), and are indicative of gross mismanagement and negligence.
3. That Cemetery Supervisor Robert Houde and Superintendent John Daidone intentionally misrepresented their observations of wood fragments at the grave of Ruth Miller. Such misrepresentations constitute a refusal to cooperate with an investigation of the Division of Cemeteries.
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6. That the Cemetery has failed to enact rules and regulations to adequately address the preventing of the burial in a lot, plot or part thereof, of a body not entitled to burial therein, in violation of N-PCL ' 1509(d)."
The Board of Directors of the cemetery were ordered to "take immediate action to develop a comprehensive plan for the proper management of the day-to-day operation of the cemetery, including the adoption of revised rules and regulations implementing precautionary measures to ensure the proper placement of remains." Such plans were to be submitted to the Board within 45 days of the date of the order. It was further ordered that unless the cemetery requested an adjudicatory hearing, within 15 days, the findings would be adopted as final, and the cemetery would be assessed the maximum civil penalty of $1,000 per violation, totaling $6,000. On August 11, 1999 Mount Lebanon executed a consent order, waiving its right to an adjudicating hearing and Article 78 review, and the State agency adopted the relevant portions of the June 1, 1999 investigative report as its final findings of fact, and the preliminary determination of the July 8, 1999 order as its final determination. Mount Lebanon agreed to pay the $6,000 fine, and to provide a comprehensive plan as required by September 1, 1999.
Plaintiffs commenced the within action on December 2, 1998, and asserted thirteen causes of action arising out of the improper burials. Defendants answered on February 8, 1999, and served an amended answer on February 25, 1999, and have asserted twenty-one affirmative defenses. Plaintiffs now seek an order dismissing the affirmative defenses; granting partial summary judgment on the issue of liability on the first eleven causes of action, severance of the twelfth and thirteenth causes of action; and seek the imposition of sanctions, costs and attorneys fees based on defendants' maintenance of a frivolous defense. Defendants cross-move in opposition, and seek an order dismissing the complaint in its entirety and, in the alternative, seek to dismiss the claims of Stephen and Morgan Marks; seek the dismissal of the twelfth and thirteenth causes of action; and seek leave to amend their answer in order to assert the affirmative defenses of consent, release and mutual mistake.
These motions are decided as follows:
Defendants' cross motion to dismiss the complaint in its entirety on the grounds that it fails to state a cause of action is denied. It is well settled that on a motion addressed to the sufficiency of a complaint, the inquiry is "whether the complaint, considered as a whole and construing the allegations in favor of the plaintiff, states "in some recognizable form any cause of action known to our law" (Antico v Richmond Hous. Assoc., 196 AD2d 853 quoting Dulberg v Mock, 1 NY2d 54, 56). In considering a motion to dismiss for failure to state a cause of action the court should only be concerned with "whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v Ginzberg, 43 NY2d 268, 275; see also, Leon v Martinez, 84 NY2d 83, 88; Manno v Mione, 249 AD2d 372). Plaintiffs' complaint herein clearly states a cause of action for intentional infliction of emotional distress, trespass, desecration of a grave, and fraud, and therefore the complaint will not be dismissed in its entirety.
Plaintiffs' request to dismiss defendants' affirmative defenses is decided as follows:
The first affirmative defense, that the complaint fails to state a cause of action, as well as the tenth through twenty-first affirmative defense that specific claims do not properly state a cause of action are dismissed. The failure to state a cause of action is not a cognizable affirmative defense in this judicial department. (Coluccio v Urbanek, 129 AD2d 551; Bentivegna v Meenan Oil Co., Inc., 126 AD2d 506).
The second affirmative defense of lack of capacity to sue, is dismissed as to Maxine Marks. Maxine Marks is the owner of the family burial plot in question, and the daughter and granddaughter of the decedents in issue. Mrs. Marks, thus, clearly has standing to assert all of the claims that arise out of the improper burials. This affirmative defense is not dismissed as to Stephen and Morgan Marks.
The third affirmative defense, that the complaint fails to plead the causes of action with the requisite specificity is dismissed, as the complaint satisfies the pleading requirements of CPLR 3013.
The fourth affirmative defense of Statute of Limitations is dismissed as to all actions except for the second cause of action arising out of the burial of Mary Block in 1959.
Defendants have withdrawn the fifth affirmative defense of plaintiff's culpable conduct, and the sixth affirmative defense of res judicata.
Defendants' seventh affirmative defense, that someone other than the defendants' committed the acts complained of is dismissed. Mount Lebanon, in the consent order, acknowledged that all of the acts pertaining to the improper burial of Ruth Miller were committed by its officers and employees. Defendants' assertion that discovery is required in support of this affirmative defense is without merit. Mount Lebanon was the only entity that was responsible for maintaining proper burial records, for opening graves, for performing proper burials, and for maintaining the foot stone.
The eighth affirmative defense of failure to mitigate damages is dismissed, as defendants have not established that plaintiffs' had any duty to mitigate damages.
The ninth affirmative defense which asserts that the action is frivolous, as defined by CPLR 8303-a and seeks the imposition of sanctions is dismissed, as such a statutory violation does not constitute an affirmative defense.
Plaintiffs' request that the court impose sanctions, costs and attorneys fees against defendants for maintaining these affirmative defenses is denied. While a majority of the affirmative defenses are based on the failure to state a cause of an action, neither this defect in pleading nor the lack of merit of other defenses warrant the imposition of sanctions.
Defendants' request for leave to amend their answer in order to assert the affirmative defenses of release, consent and mutual mistake is denied. Defendants have not included a copy of the proposed pleading and the agreement entered into by the parties prior to the double exhumation did not, by its terms, relieve defendants of any liability for their acts.
Plaintiffs' request for partial summary judgment on their first eleven causes of action is decided as follows:
The first cause of action against Mount Lebanon Cemetery is based upon the failure to maintain proper burial records. While a cemetery is required to maintain burial records in accordance with N-PCL ' 1510(c), the failure to do so does not give rise to a cognizable cause of action. Plaintiffs' request for summary judgment on the first cause of action, therefore, is denied and this cause of action dismissed.
Plaintiffs' second cause of action for the wrongful burial of Mary Block in 1959 is also dismissed. While it is clear that Mary Block was improperly buried in the grave reserved for Ruth Miller, plaintiffs' allege that the negligent acts committed by Mount Lebanon, occurred in 1959. Plaintiffs' claim, thus, is barred by the three year Statute of Limitations (CPLR 214). The request for summary judgment, therefore, is denied and the third cause of action is dismissed.
Plaintiffs' third cause of action sounds in trespass against Mount Lebanon for the removal of the foot stone of Mary Block. The court notes that "[i]t has long been the rule of common law that, if a tombstone at the grave of a deceased person has been defaced or removed, he who originally erected it has a cause of action against the guilty party for the resulting injury. After his death the right to maintain such an action passes to the heirs at law in whose honor and memory the monument was erected [citations omitted]" (Oatka Cemetery Association, Inc. v Cazeau, 242 App Div 415). The provisions of ' 1510(l) of the Not-for-Profit Corporation Law, also prohibit the removal of a monument without the written authorization of the owner of a burial plot, or the lineal descendants of the deceased, and without obtaining written approval from a duly incorporated cemetery association. It is undisputed that Mount Lebanon directed its employees to move the foot stone of Mary Block from the grave in which her remains were placed to a grave two spaces to the left, without the knowledge and authorization of Maxine Marks the owner of the burial plot. Partial summary judgment, therefore, is granted in favor of Maxine Marks on the third cause of action. The court, however, finds as there is no evidence that Stephen or Morgan Marks are owners of the burial plot, or erected the foot stone, partial summary judgment is denied as to these plaintiffs, and the third cause of action is dismissed as to these plaintiffs.
Plaintiffs in the fourth cause of action seek to recover damages for the intentional infliction of emotional distress. In order to recover on such a claim, a plaintiff must establish (1) extreme and outrageous conduct, (2) intent to cause, or disregard of a substantial probability of causing, severe emotional distress, (3) a causal connection between the conduct and injury and (4) severe emotional distress. (Howell v New York Post Co., 81 NY2d 115). The conduct complained of must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." (Murphy v American Home Prods. Corp., 58 NY2d 293, 303; quoting Restatement [second] of Torts ' 46[1], comment d; see also, Howell v New York Post co., supra; Roach v Stern, 252 AD2d 488). The court finds that Mount Lebanon totally disregarded the provisions of State law and the tenets of Judaism, and proceeded to conceal the remains of Mary Block; that it knowingly moved the foot stone, and that it knowingly permitted the remains of Ruth Miller to be buried in the same grave as Mary Block. Mount Lebanon, thereafter, consistently denied all wrong doing, and its employees knowingly submitted false affidavits to the State investigators, and only recanted shortly before the exhumation held on September 25, 1998, when they would be faced with irrefutable evidence of the double burial. Mount Lebanon's course of conduct was undertaken with a total disregard to the probability of causing emotional distress to the Marks family. The court, thus, finds that Mount Lebanon's callous disregard of the sensibilities of the living and the repose of the deceased, constitutes extreme and outrageous conduct that exceeds all reasonable bounds of decency in a civilized society. (See, Johnson v State of New York, 37 NY2d 378; Corea v Maimonides Medical Center, 165 Misc 2d 614; see also, Roach v Stern, 252 AD2d 488.) Maxine and Stephen Marks have submitted affidavits which sufficiently establish that they sustained emotional injuries as a result of defendant's conduct. The court notes that Stephen Marks knew his mother-in-law, Ruth Miller, for 31 years and has stated that they enjoyed a loving and close relationship. The court, thus, finds that Stephen Marks should be considered a close relative of the deceased. Plaintiffs Maxine and Stephen Marks, therefore, are granted summary judgment against the defendants on this cause of action. Morgan Marks has not submitted an affidavit, and therefore the court makes no determination at this time as to whether he also sustained emotional injuries.
Plaintiffs' request for summary judgment on the fifth and sixth causes of action against Mount Lebanon, is denied, and these causes of action are dismissed. The fifth cause of action fails to plead and prove the existence of a contract and its breach by the defendant, and fails to set forth the nature of the alleged fiduciary relationship or fiduciary duty owed to the plaintiffs. The sixth cause of action is based upon violations of the State and City Health Codes pertaining to the depth of excavation for a grave. Plaintiffs, however, have not established that such a statutory violation gives rise to a cognizable cause of action.
Plaintiffs in the seventh cause of action against Mount Lebanon, Robert Houde and Thomas Grosser, seek to recover damage for fraud. In order to recover on such a cause of action, a plaintiff must establish (1) misrepresentation of a material fact, (2) knowledge by the party making the misrepresentation that it was false when made, (3) justifiable reliance on the statement, and (4) damages. (Channel Master Corp. v Aluminum Ltd. Sales, 4 NY2d 403; see also, Lama Holding Co. v Smith Barney, Inc., 88 NY2d 413; New York Univ. v Continental Ins. Co., 87 NY2d 308). Defendants were aware that Mary Block had been improperly interred in the grave reserved for Ruth Miller as of February 25, 1998. They then concealed the movement of the foot stone, and improperly prepared the grave of Ruth Miller. The concealment of these material facts, which defendants had a duty to disclose, is evidence of and equal to a false representation (see generally, Merrill Lynch, Pierce, Fenner & Smith, Inc. v Chipetine, 221 AD2d 284). Defendants' conduct unwittedly caused plaintiffs to bury Ruth Miller in the grave containing the remains of Mary Block, and necessitated a double exhumation and reburials all of which caused plaintiffs' emotional injuries. The affidavits submitted by Maxine and Stephen Marks sufficiently attest to the injuries they sustained. Plaintiffs' request for partial summary judgment, on the seventh cause of action, therefore, is granted. Morgan Marks has not submitted an affidavit and, therefore, summary judgment in his favor is not warranted at this time.
Plaintiffs' eighth cause of action for fraud in the inducement is repetitive of the claims for fraud set forth in the seventh cause of action and, therefore, plaintiffs' request for summary judgment is denied, and this claim is dismissed.
Plaintiffs' ninth cause of action against Mount Lebanon, Stolitzky, Ivler, Houde, Daidone, Grosser and Joyce, essentially alleges that these defendants engaged in a scheme and conspiracy to cover up their activities concerning the improper burials. It is well settled that New York does not recognize civil conspiracy as an independent cause of action. (See, Daly v Messina, AD2d
, 1999 WL 1220153, [Second Dept., Dec. 20, 1999]; Walters v Pennon Assocs., 188 AD2d 596; Ferguson v Mendian Distrib., 155 AD2d 642; Litras v Litras, 254 AD2d 395; Island Condo Mgt. Corp. v Katan Gardens Condominium, 250 AD2d 816.) The request for summary judgment therefore is denied, and this cause of action is dismissed.
Plaintiffs, in their tenth cause of action seek to recover against all defendants for the desecration of bodies and graves. "An action at law will lie to recover damages for the desecration of a grave by an act affecting the grave itself or the body interred therein." (18 NY Jur2d, Cemeteries and Dead Bodies ' 100). Such a cause of action may be termed either an action for trespass upon the burial plot, or an action for interference with the right of burial. (See, Gostkowski v Roman Catholic Church of Sacred Hearts of Jesus and Mary, 262 NY 320). The right of action for desecration is in the surviving spouse, and if there is no surviving spouse, then in the next of kin. (See, Mitchell v Thorne, 134 NY 536; Gostkowski v Roman Catholic Church of Sacred Hearts of Jesus and Mary, supra.) Maxine Marks, as the next of kin to her mother and grandmother, has the right to protect the remains of the deceased. The court finds that defendants' actions, in opening the grave containing the remains of Mary Block, and in burying Ruth Miller in the same grave constituted a desecration of the graves of the deceased, and interfered with Mrs. Marks right to properly bury the deceased in individual graves. Mental anguish is compensable in an action for desecration of a grave, and "exemplary damages may be awarded where the desecration of a grave is the result of a wanton and malicious act, gross negligence, or a reckless disregard of the rights of others equivalent to an intentional violation." (18 NY Jur 2d, Cemeteries and Dead Bodies, ' 102; Gostkowski v Roman Catholic Church of Sacred Hearts of Jesus and Mary, supra.) Plaintiffs' request for partial summary judgment is granted to Maxine Marks on the tenth cause of action. Stephen and Morgan Marks, however, cannot be considered next of kin, with a right of burial and, therefore, this claim is dismissed as to these plaintiffs.
Plaintiffs' eleventh cause of action for the intentional infliction of emotional distress, against all defendants is identical to the fourth cause of action and, therefore, is dismissed.
Plaintiffs' request to sever the twelfth and thirteenth causes of action, which allege violations of the RICO Act (18 USC '' 1961-1968) is denied, and defendants cross motion to dismiss these causes of action is granted. A complaint for a RICO claim must allege "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." (Sedima, S.P.R.L. v Imrex Co., Inc., 473 US 479.) "In addition, the plaintiff only has standing if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation" (Sedima, Ibid at 496). Plaintiffs Stephen and Morgan Marks clearly lack standing to bring a RICO action, as neither can establish an injury to their business or property. Maxine Marks has alleged an injury to her property, the burial plot, but has not properly alleged a pattern of racketeering activity. A pattern of racketeering activity involves at least two predicate acts, the second of which must occur within 10 years of the first (18 USC ' 1961[5]). Predicate acts are acts which are indictable under certain specified laws. (See, McEvoy Travel Bureau Inc. v Heritage Travel, Inc., 904 F2d 786; DeMauro v DeMauro, USCA, First Cir., 2000 U.S. App. Lexis 2263 [February 16, 2000]). The first act alleged in the complaint occurred in May 1959 (the burial of Mary Block in the wrong grave plot), and the second act allegedly occurred on February 25, 1998. (The burial of Ruth Miller). These acts are clearly more than 10 years apart, and thus cannot form the basis of a RICO claim. Moreover, the court finds that the RICO Act was not designed to provide a private right of action for ordinary fraud. (See, Simpson Electronic Corp. v Levcadio, Inc., 72 NY2d 450).
In view of the foregoing, plaintiffs' motion to dismiss the affirmative defenses is granted to the extent indicated herein; the request for partial summary judgment on the first eleven causes of action is granted to the extent indicated herein; the request to sever the twelfth and thirteenth causes of action is denied, and the request for sanctions is denied. Defendants' cross motion to dismiss the complaint in its entirety and for leave to amend their answer is denied. That branch of the cross motion which seeks to dismiss the claims of Stephen and Morgan Marks is granted to the extent indicated herein. That branch of the cross motion which seeks to dismiss the twelfth and thirteenth causes of action is granted.
The parties are directed to file a note of issue within 30 days from the filing of the order.
Settle order.
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J.S.C.
The court acknowledges the assistance of Susan Beberfall, Esq. in the preparation of this decision.