The Petitioner CHARLES J. MATTSON, is the son and the Respondent SALEH EL NAGER is the surviving spouse of KAREN ANN MATTSON, who died on July 24, 2012 in Riverhead, Suffolk County, New York. By way of these proceedings, the Petitioner seeks an Order of this Court permitting the disinterment of the remains of KAREN ANN MATTSON, which applications have been strenuously opposed by the Respondent. The Respondents ISLAMIC CENTER OF MELVILLE, MOHAMMED HASSANIEN and WASHINGTON MEMORIAL PARK were duly and properly served with the Order To Show Cause and each of them have defaulted in appearance herein. Nonetheless, since they have been served as by statute made and provided, they will be bound by the determination of this Court.

Testimony and Evidence

The decedent KAREN ANN MATTSON departed this life on July 24, 2012 while an inpatient at Peconic Bay Medical Center, at the age of 55 years. Although a resident of Kings County, she had sought palliative treatment for advanced metastatic disease in Suffolk County, where she was in the company of both the Petitioner and her mother RUTH MATTSON. Upon her passing, Respondent SALEH EL NAGAR, as her surviving spouse, took control and custody of her remains, caused an Islamic funeral service to be held and thereupon had her remains buried within land owned by Respondent WASHINGTON MEMORIAL PARK., asserting that the decedent was a devout and observant Muslim. The Petitioner asserts that this course of action taken by the Respondent was in direct derogation of the wishes that were expressed by KAREN ANN MATTSON during her lifetime.

An evidentiary hearing was convened by the Court and continued over a period of several non-consecutive days. During the hearing process, the Court received testimonial evidence from a number of witnesses and was afforded the opportunity to examine documents that were submitted by both sides. Both the Petitioner and the Respondent were represented by extremely talented and capable counsel. At the hearing, the Court was afforded ample opportunity to assess and determine the credibility of each of the witnesses who offered sworn testimony.

The Petitioner's first witness was Denise D'Ambrosia, a Palliative Care Nurse Practitioner at Peconic Bay Medical Center. She was present, along with the Petitioner and the decedent's mother at the moment of her passing. She stated that the decedent was non-verbal and that a serious question arose as to who had the legal right to take custody of the remains. While the [*2]Petitioner spoke of decedent's "estranged husband" (who, according to the witness, was not present at the time), the decedent, at the time of her admission to the hospital, designated her mother Ruth Mattson as her next of kin. Indeed, the hospital record (stipulated into evidence as Petitioner's Exhibit 1) reflects that on July 19, 2012, the decedent stated to Ashley Klaus LMSW that she "...resided at home with no spouse and mother." Further notes on July 24, 2012 document her passing, indicating that only her mother and son were present and that they intended to cremate her remains as was the decedent's wish. That notes further state that the Respondent, though not present and having arrived later, advised that he would not consent to anything other than a Muslim funeral and burial in Brooklyn, even though the Petitioner agreed to such a funeral and burial on Shelter Island. The Respondent insisted that the decedent was a devout Muslim, notwithstanding her declaration to the hospital that she had no religion.

The Petitioner's second witness was Barbara Ahrens, the decedent's tenant, friend and confidante for approximately eleven years. The decedent owned a building in Bay Ridge, Brooklyn in which she occupied the second floor while the first floor was a storefront that was rented to the witness. She testified that she used to see Karen almost every day and that "We were girlfriends, we'd talk all the time." Approximately two years before her final illness, the witness stated that Karen's dog, an Akita named Sasha had died and that Karen said to her that "When I die, I want to be cremated and buried with Sasha." According to the witness, Karen repeated this wish to her on more than one occasion, the last time being just before she entered the hospital for what was her final illness. The witness further testified that immediately following Karen's death, the Respondent had come to the store and that she had informed him of the decedent's wishes, by which he absolutely refused to abide. She knew that the decedent and Respondent had married in January of 2001 and that the Respondent was "...gone most of the time." She stated that Karen had converted to Islam, that early on she would attend mosque regularly but that she had stopped going some years before her death and that she would only wear her hijab when the Respondent was present.

The Petitioner's third witness was Ruth Mattson, the decedent's mother. Unlike the first two witnesses, she would be an interested witness though her testimony would not necessarily be less compelling on account of any interest that she might have. This witness was decidedly feisty and unabashed in character and did not mince words when offering testimony. She stated that while she and the decedent did not always agree, they were nonetheless very close, speaking on the telephone every day when Karen was in Brooklyn. According to her mother, Karen was very close to Sasha and when the dog passed, Karen told her mother that she wished to be buried alongside her; in fact, Karen and the Petitioner dug the grave wherein the dog was buried. This witness testified that Karen had told her "innumerable times" that she wished to be cremated which, she stated, was "a family agreement from way back" and that Karen's father had been cremated as well. According to her mother, five days before her death, Karen affirmatively stated that she "...wanted her ashes to come home, half with Sasha and half with her father." She further testified that Karen had been living with her on Shelter Island for over a year prior to her passing, that the Respondent was frequently away overseas and that the Respondent visited Karen at the hospital only once during her final illness, spending most of his time berating the [*3]witness over whether or not the decedent had remitted his car payment. She stated that Karen had been raised Presbyterian, had converted to Islam just to marry the Respondent and repudiated it shortly after her conversion.

The fourth witness was Charles Jeffrey Mattson, the Petitioner who, like his grandmother, would be deemed an interested witness. He stated that his mother told him, without equivocation and on many occasions, that her wish was to be cremated and placed with both Sasha and her father. After her diagnosis, she repeated this wish to him perhaps twice weekly for a period of several months. When his mother passed, the Respondent came to the hospital, refused to release her body and stormed off. After returning to the hospital, discussions were had in the presence of the Palliative Care Nurse Practitioner and it was tentatively agreed to conduct an Islamic funeral and burial on Shelter Island but after calling an Imam, the Respondent said that the Imam refused to come to Shelter Island. He thereupon took possession of her remains and buried her the following day through a Muslim service. The Respondent refused to allow any persons of the female gender to view the body, pay their final respects or attend the funeral and the witness, feeling greatly distraught, was prevented from attending the funeral because all of his close friends were females and hence barred from the funeral home and the cemetery. He also stated that Islam was "a phase for Mom," taht she rarely wore her hijab and was not at all observant.

The Respondent was called to testify on his own behalf, utilizing the services of an Arabic translator. He was born in Egypt, became a United States citizen in 2007 and stated that he was a devout Muslim. He met the decedent in 1999 and they were married January 29, 2001 in a civil ceremony by the City Clerk in Kings County. According to the Respondent, Karen never expressed any wish to be cremated because it was prohibited by Islamic law and further, that she was a devout and practicing Muslim and continued to wear her hijab, up until the time of her death.In a sworn Affidavit dated August 9, 2012, the Respondent averred, under oath, inter alia, that "...Due to the tenets of my spiritual beliefs, I can only marry a person of Muslim faith. Karen wholeheartedly converted to Islam prior to our marriage and became a practicing Muslim." However, in his sworn testimony before the Court, he stated that she converted to Islam after their marriage, after attending classes for perhaps a year. He testified further, in direct contravention of his Affidavit, that"...while cremation is prohibited by Islam, intermarriage with someone of another religion is perfectly acceptable." On cross-examination, he conceded somewhat reluctantly that he had been married previously, that he had remained in the United States on an expired visa and that he utilized that first marriage as a way to stay on in the United States. The Respondent called no other witnesses.

Applicable Law

In the matter of Yome v. Gorman 242 NY 395 (1926), the Court of Appeals, in a decision by Judge Cardozo, was faced with an appeal in a similar situation. The Court, quoting Pettigrew v. Pettigrew 207 Penn St 313 (Sup. Ct. Penna., 1904), found that "the wishes of wife and next of [*4]kin are not always supreme and final though the body is yet unburied...Still less are they supreme and final when the body has been laid at rest, and the aid of equity is invoked to disturb the quiet of the grave. There will then be due regard to the interests of the public, the wishes of the decedent, and the rights and feelings of those entitled to be heard by reason of relationship or association.' A benevolent discretion, giving heed to all those promptings and emotions that men and women hold sacred in the disposition of their dead, must render judgment as it appraises the worth of the competing forces." 242 NY at 402. The decision continues on, that "the wish of the deceased, even though legal compulsion may not attach to it, has at least a large significance" quoting Williams v. Williams L.R. 20 Ch. Div. 659. The Court goes on to state that "The dead are to rest where they have been laid unless reason of substance is brought forward for disturbing their repose." 242 NY at 403.

In a later decision, the Court of Appeals, in a 4-3 opinion authored by Judge Fuld, in Currier v. Woodlawn Cemetery, 300 NY 162 (1949), expressly followed the authority of Yome v. Gorman supra and stated further that "...looming large among the factors to be weighed are the wishes of the decedent himself." 300 NY at 164. Indeed, in Matter of Costa [St. John's Church] 274 AD 872 (4th Dept. 1948), aff'g 83 NYS 2d 65 (Sup. Ct. Oneida Cty, 1947) the Appellate Division found that the wishes of a decedent "...can prevail even over those of a surviving spouse." In Matter of Dutcher v. Paradise 217 AD2d 774 (3rd Dept. 1995), the Court determined that the issue of whether or not a petition seeking disinterment should be granted was to be determined in large part by the wishes of the decedent, which was reaffirmed by Briggs v. Hemstreet-Briggs 256 AD2d 894 (3rd Dept. 1998). See, for example, Matter of Donn 14 NYS 189 (Sup. Ct. Erie Cty., 1891,), Cooney v. English 86 Misc 292 (Sup. Ct. Kings Cty., 1914). It is abundantly clear from the foregoing authority that the sanctity of sepulchre should not be invaded nor disturbed except for a compelling and substantial reason. It is thus beyond dispute that the expressed wishes of a decedent are superior to those of all other and hence are entitled to great weight and deference in arriving at a determination as to whether or not a petition for disinterment should be granted.

While it would have made matters considerably easier (and no doubt, less fractious) had the decedent in the case sub judice had expressed her wishes in a writing, no such luxury has been afforded these parties and thus the Court must resort to parol evidence in order to assist in making its determination. Though the issue has not been raised by either side, the Court has elected to allow the testimony offered as to the decedent's wishes as to the disposition of her remains, finding that the same is not precluded by New York's Dead Man's Statute (See CPLR § 4519, Matter of Conroy 138 AD2d 212 (3rd Dept. 1988), appeal dismissed 73 NY2d 810 (1988).

It is the province and indeed the obligation of the trial court to both assess and determine matters of credibility, Morgan v. McCaffrey 14 AD3d 670 (2nd Dept. 2005), Matter of Liccione v. Michael A. 65 NY2d 826 (1985). In a civil proceeding such as the instant matter, the burden of proof rests upon the proponent (in this case, the Petitioner) to plead and prove entitlement to the relief sought by a fair preponderance of the credible, relevant, material and admissible evidence, Prince-Richardson On Evidence § 3-210, Torem v. 564 Central Avenue Restaurant Inc. 133 [*5]AD2d 25 (1st Dept. 1987). In the matter sub judice, the Court finds that the Petitioner has sustained his burden of proof by a fair preponderance, adducing believable testimony that was not otherwise controverted. The Court further finds that the testimony offered by the Respondent was not sufficient to overcome the evidence offered by the Petitioner, Deering v. Metcalf 74 NY 501 (1878). Based upon all of the admissible evidence adduced in this proceeding, the Court finds that the wishes of the decedent KAREN ANN MATTSON, as to the disposition of her earthly remains were the cremation thereof followed by burial of portions with both her deceased father and her beloved Akita, in the Town of Shelter Island, New York.

It is, therefore,

ORDERED, ADJUDGED and DECREED that the petitions of CHARLES J. MATTSON shall be and the same are hereby granted in their entirety; and it is further

ORDERED, ADJUDGED and DECREED that the Petitioner is granted leave to disinter the remains of the decedent KAREN ANN MATTSON from the place of sepulchre maintained by the Respondent WASHINGTON MEMORIAL PARK, the same to be accomplished at his own expense; and it is further

ORDERED, ADJUDGED and DECREED that in accordance with the wishes of the decedent KAREN ANN MATTSON, her remains, upon disinterment, shall be cremated and the ashes shall be buried alongside the remains of her father and her Akita, in the Town of Shelter Island, with all expenses thereof to be borne by the Petitioner; and it is further

ORDERED, ADJUDGED and DECREED that any relief not granted herein shall be and the same is hereby denied in its entirety. [*6]

This shall constitute the decision, judgment and order of the Court.

Dated: April 30, 2013

Central Islip, New YorkE N T E R:

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HON. JEFFREY ARLEN SPINNER, J.S.C.