Supreme Court, Suffolk County, April 29, 2024

The Rizzuto Law Firm, Uniondale, for petitioner.

Parshall and West, Worcester, for respondent.

{**84 Misc 3d at 233}After a hearing, it is ordered that the petition brought by order to show cause, seeking to enjoin respondent David Cook from burying and/or disposing of the body of decedent Debra Cook, is granted in part and denied in part as set forth below; and it is further ordered that the portion of Sheryl Rizzuto's petition to remove the respondent David Cook as the person with priority over disposition of decedent's remains pursuant to Public Health Law § 4201 (2) (b) is denied, pending respondent's compliance with the terms of this order; and it is further ordered that the portion of petitioner's application sounding in pursuance of Public Health Law § 4201 (2) (c) directing respondent to faithfully carry out the wishes and directions of the decedent to be buried in St. Charles Cemetery, Farmingdale, Suffolk County, New York is granted; and it is further ordered and adjudicated that respondent is to finalize the previously pre-planned burial arrangements with the Heller & Skinner Funeral Home, Worcester, New York to transfer the decedent's remains to St. Charles Cemetery for burial within two weeks of the date of this order; and it is further ordered that respondent is stayed and enjoined from taking any act concerning the disposition of the remains of the decedent Debra Cook that is inconsistent with the terms of this decision and order that said decedent be buried at the plot referred to herein in St. Charles Cemetery, Farmingdale, Suffolk County, New York; and it is further ordered and adjudicated that if respondent is unwilling to abide by the terms of this decision and order, or if respondent decides in light of this decision to relinquish his priority under Public Health Law § 4201 (2) (a), respondent's counsel must notify petitioner's counsel and the court of such fact by May 2, 2024, by writing filed in NYSCEF (New York State Courts Electronic Filing System) and it is further ordered and adjudicated if respondent is so unwilling, then he is relieved of his priority under Public Health Law § 4201 (2) (a) as he is unwilling to serve faithfully pursuant to Public Health Law § 4201 (2) (c) and petitioner is substituted in his place pursuant to Public Health Law § 4201 (2) (b) to effectuate the burial according to decedent's wishes; and it is further ordered and adjudicated that if respondent fails to comply with the terms of this order, unless modified by further order of the court for good cause shown, the court will entertain an application to hold respondent in contempt, and if so found, the court will apply any appropriate penalty authorized by law and warranted by the circumstances up to and including a monetary fine and/or imprisonment, and will substitute petitioner in respondent's place pursuant to Public Health Law § 4201 (2) (b) as he{**84 Misc 3d at 234} is unwilling to serve faithfully pursuant to Public Health Law § 4201 (2) (c) as the person authorized to dispose of decedent's remains pursuant to Public Health Law § 4201 (2) (a).

Petitioner Sheryl Rizzuto (petitioner), sister of the decedent Debra Cook (decedent), brought this application to effectuate what she claimed to be the desire of the decedent to be buried on Long Island in a plot at St. Charles Cemetery in Farmingdale, Suffolk County, New York, which petitioner purchased on behalf of decedent. Respondent David Cook (respondent), decedent's husband of almost 30 years, opposes the application, claiming that decedent had expressed the desire to be buried in a cemetery in Worcester, Otsego County, New York, something which he also desires. The court notes that the two cemeteries are approximately 200 miles apart.

As there were issues of fact to be determined, the court set petitioner's application for a hearing, which was held over two days on March 26, 2024, and April 22, 2024. At the hearing, counsel for the parties presented six witnesses and submitted various documents in support of their clients' positions.

This case requires the court to reconcile the provisions of Public Health Law § 4201 (2) (a), which sets forth the priorities of persons who have the authority, and burden, of disposing of the body of a decedent, with the provision of Public Health Law § 4201 (2) (c) which requires that such person "shall faithfully carry out the directions of the decedent to the extent lawful and practicable, including consideration of the financial capacity of the decedent's estate . . . [, and] shall also dispose of the decedent in a manner appropriate to the moral and individual beliefs and wishes of the decedent provided that such beliefs and wishes do not conflict with the directions of the decedent," as well as the provisions of Public Health Law § 4201 (2) (b) authorizing the substitution of another person in succeeding priority to undertake those responsibilities under Public Health Law § 4201.

Writing for the Court in Mack v Brown (82 AD3d 133 [2d Dept 2011]), Justice Dillon noted the sparsity of case law existing interpreting Public Health Law § 4201. That sparsity has continued to date, and most of the cases interpreting the statute deal either with situations where a party is seeking to disqualify a person higher in the priorities set by Public Health Law § 4201 (2) (a) or where a third party is seeking to avoid liability for violating the right of sepulcher pursuant to the provisions of the statute.{**84 Misc 3d at 235}

The common law, as well as a prior version of Public Health Law § 4201 (repealed in 1970), recognized that absent a testamentary direction, the right to the possession of a decedent's body for preservation and burial belonged to the surviving spouse, or absent one, the next of kin (Foley v Phelps, 1 App Div 551 [1st Dept 1896]; Matter of Bower, 17 Misc 2d 936 [Sup Ct, Oswego County 1959]). The Legislature enacted the first version of the present Public Health Law § 4201 in 2005 to set an orderly procedure for priority in response to issues surrounding the tragedy of September 11, 2001. As noted in the legislative history at the time of the enactment, there had been no statutory authority as to who had the right to control a dead body since the 1970 repeal of the earlier Public Health Law § 4201.

At the hearing, it was established that decedent passed away on January 12, 2024. There is no written instrument pursuant to Public Health Law § 4201 (3) designating a person to control the disposition of the body, nor did decedent make any direction in her will, admitted to probate in the Otsego County Surrogate's Court, of either such a person, or where she should be buried. The brief will does make respondent executor, with broad powers to dispose of the assets and responsibilities of her estate, but without direction as to where she is to be buried or directing him to be the person to decide the disposal of her body.

Petitioner attempted to establish at the hearing that she was entitled to priority under Public Health Law § 4201 (2) (a), arguing that pursuant to Public Health Law § 4201 (2) (b) the respondent was "not reasonably available, unwilling or not competent to serve." The burden of proof on that issue was on the petitioner (analogous to the situation in Shepherd v Whitestar Dev. Corp. [113 AD3d 1078 (4th Dept 2014)]). Petitioner provided no proof that respondent was not reasonably available, unwilling or not competent to serve. In fact respondent was never asked, nor stated on his own, whether he would not serve, or abide by a judicial determination of what the wishes of the decedent were as to her burial site. In the few cases where a court has decided the issue of the place of burial, or similarly disinterment, based upon the wishes of a decedent as opposed to where a spouse or other in priority wished to bury a decedent, and removed that person with the priority under Public Health Law § 4201 (2) (a), courts most often have found that the person with priority was estranged from decedent{**84 Misc 3d at 236} (decedent had separated from spouse, had filed for divorce and spouse was under investigation for decedent's death [Maurer v Thibeault, 20 Misc 3d 631 (Sup Ct, Cortland County 2008)]; a short-term marriage of suspicious origin [Lewis v Lloyd, 40 Misc 3d 1223(A), 2013 NY Slip Op 51286(U) (Sup Ct, Kings County 2013)]). Here there is no evidence of estrangement. The respondent and decedent were married for over 28 years, respondent was devoted to his wife, visiting her virtually every day during her long hospitalizations, traveling to her side when she was hospitalized far from their home, losing time from his employment and undergoing counseling as a result of the emotional stress of decedent's final illness.

The dispute between the parties which the court must adjudicate is where did decedent wished to be buried. It seems that petitioner believes that just because respondent fullheartedly believes that both he and his wife wished to be buried together in Worcester, he will not follow a direction of the court pursuant to Public Health Law § 4201 (2) (c) if the evidence establishes that decedent wished to be buried at St. Charles Cemetery. There is no proof to that effect offered and petitioner's supposition is not a substitute for evidence of that claim. Initially, petitioner's claim to remove respondent pursuant to Public Health Law § 4201 (2) (b) as the person with the priority to dispose of decedent's remains and substitute petitioner as the next person in priority pursuant to Public Health Law § 4201 (2) (a) is denied, subject to compliance with the balance of this decision and order.

But the issue remains that respondent must comply with the provisions of Public Health Law § 4201 (2) (c) which states in relevant part:

"(c) The person in control of disposition, pursuant to this section, shall faithfully carry out the directions of the decedent to the extent lawful and practicable, including consideration of the financial capacity of the decedent's estate and other resources made available for disposition of the remains. The person in control of disposition shall also dispose of the decedent in a manner appropriate to the moral and individual beliefs and wishes of the decedent provided that such beliefs and wishes do not conflict with the directions of the decedent."

On this issue petitioner has the burden of proof to provide clear and convincing evidence that establishes the decedent's{**84 Misc 3d at 237} wish to be buried on Long Island and not in a cemetery in her hometown of Worcester with her husband of 28 years. The court finds the evidence at the hearing has met that burden of proof.

Respondent was firm in his testimony that decedent had expressed to him that she wished to be buried in Worcester. To support this he provided a longtime friend of decedent's, Mrs. [*2]Virginia Rogers, who testified that decedent had told her that she wished to be buried in Worcester. Respondent also presented another longtime friend of decedent as a witness, but she was unable to testify as to decedent directly indicating to her that she wished to be buried in Worcester.

Petitioner testified that she had purchased a cemetery plot so that decedent could be buried on Long Island with her. She produced proof of purchase of the plot at St. Charles Cemetery, but the documents made no mention of the decedent, as it was in petitioner's name. The two adult children of petitioner testified that, along with the petitioner, they had a phone conversation in the petitioner's car with decedent after picking out the plot in November 2022, and that the decedent was told to make sure she told respondent of that fact. Petitioner's daughter testified concerning her visit with respondent in the hospital on January 2, 2024, where she was present when respondent spoke with decedent. At that time decedent could not verbally respond, but the petitioner's daughter stated that when respondent asked decedent three or four times if she wanted to be buried in Worcester instead of Long Island, respondent shook her head "No." A copy of a text message, admitted into evidence on consent (petitioner's exhibit 9), to petitioner from her daughter on that day indicated that respondent was trying to get decedent to change her mind about her burial site on Long Island. In addition, petitioner's son testified concerning the conversation in November 2022 and a copy of text messages from petitioner's daughter to him on January 2, 2024, were also admitted into evidence on consent (petitioner's exhibit 10). Among the statements made therein by petitioner's daughter was "uncle David [respondent] told us 'she told me awhile ago she wants to be buried in worchester [sic]' and I jumped in saying that was a lie cause all of today you've been trying to convince her and she keeps saying no."

The only person who had no real interest in the determination of a burial site was decedent's friend Mrs. Rogers; every other witness who testified as to decedent's wish had either a{**84 Misc 3d at 238} direct or indirect interest in where decedent was to be buried. The open hostility between the Rizzuto witnesses and respondent were nowhere clearer than in the copies of the text messages admitted into evidence and in the Rizzuto witnesses' refusal to attend funeral services for their deceased sister, aunt and godmother.

But it is not the conflicting testimony presented by the witnesses which form the basis for the court's decision on this application, for if that alone was the only evidence upon which the court was to determine the intent of decedent as to her burial site, the court would have found that the testimony weighed so evenly that there was no preponderance on either side. Rather it was other documents admitted into evidence on consent that showed by clear and convincing evidence decedent's wish was to be buried on Long Island, and that respondent was aware of that fact.

The first was the copy of the pre-planned arrangements for decedent's funeral contained in a certified copy of the business records of the Heller & Skinner Funeral Home, Worcester, New York subpoenaed by petitioner's counsel and entered into evidence upon consent (petitioner's exhibit 7). The agreement was signed by respondent as decedent's "POA" (power of attorney) on June 7, 2023. It lists the cemetery as "St. Charles," as well as a livery charge "to cemetery 170 miles x $3.00," and under "Cash Advances" it again lists the cemetery as "St. Charles." Maple Grove Cemetery, where respondent obtained a plot over a month after decedent's passing certainly did not involve a 170 mile hearse drive. Additionally, the business records included with the pre-planning papers contained a copy of the right of burial agreement for the plot purchased by petitioner on January 21, 2023, for [*3]her and decedent in St. Charles Cemetery.^[FN1] Further, the first page of the funeral home's business records is a partial copy of decedent's death certificate. The lower half of that certificate is covered by a copied note concerning decedent's final arrangements which indicate "St. Charles Rescurrection [sic] Cemetery, 2015 Wellwood Ave, {**84 Misc 3d at 239}Farmingdale, NY 11735, 200 miles" along with the identifying information relating to the burial plot.

Respondent submitted a copy of the burial plot which he obtained in Maple Grove Cemetery in Worcester (both plaintiff's exhibit 3 and respondent's exhibit C in evidence). The record shows that the plot was transferred into his name and that of decedent by a relative of respondent over a month after decedent's death. As such, it is further evidence that there had been no plan prior to decedent's death for her to be buried in Worcester and the testimony of respondent on this issue was at best evasive.

The court finds that these records show that at the time of the "pre-plan" of decedent's funeral and burial in 2023, respondent was aware of decedent's plan to be buried in St. Charles Cemetery on Long Island, and that upon her death, issuance of the death certificate, and plans made with the funeral home after her death, that burial was still the plan.

Perhaps most decisively, despite respondent's testimony at the hearing, the copy of the text that respondent sent petitioner on January 14, 2024, admitted into evidence as both petitioner's exhibits 2 and 8, shows clearly that two days after decedent's passing, respondent acknowledged that he knew decedent wished to be buried on Long Island by his statement that "when she goes to Long Island I will never see her headstone."

The above documents and evidence pertaining to them make it clear that it was decedent's desire to be buried on Long Island at St. Charles Cemetery.

In reaching this finding, the court has considered the 28-year marriage of decedent and respondent, as well as the fact that decedent has not lived on Long Island during that time, that her life, activities and friends all seem to be in upstate New York which had become her home. But it is not for the court, nor respondent as the person with priority to dispose of decedent's remains under Public Health Law § 4201 (2) (a), to interpose what they feel is the best place for decedent to be buried. The duty of respondent under Public Health Law § 4201 (2) (c) is to "faithfully" respect the wishes of decedent as to where she desires to be buried. A written statement pursuant to Public Health Law § 4201 (3) or any other written or recorded statement by decedent expressing her desire would have made this an easier process (see Lewis v Lloyd). As there were none, this court must ensure that respondent "faithfully" abides by the clear and convincing evidence of decedent's intent presented in the evidence before it.{**84 Misc 3d at 240}

As noted above, although the primary purpose of the hearing was to determine evidence of decedent's wishes as to where she wanted to be buried, the way the proceedings were framed by the evidence presented, respondent was never asked if he, as the person with priority under Public Health Law § 4201 (2) (a), would abide by a determination of the court on that issue if it was found that she had wished to be buried at St. Charles Cemetery. If he agrees to abide by that ruling, he would be competent, [*4]and there would be no basis to disqualify him and substitute petitioner.

In many ways the facts and issues of law here are similar to those faced by the court in both the decision in Matter of Lipiner v Plaza Jewish Community Chapel (53 Misc 3d 1080 [Sup Ct, NY County, Sept. 16, 2016, Bluth, J.]), which set a hearing on proof of decedent's wishes as to her burial site, as well as the decision of Justice Bluth in that case after the hearing (Matter of Lipiner v Plaza Jewish Community Chapel, 54 Misc 3d 664 [Sup Ct, NY County, Nov. 22, 2016, Bluth, J.]). Although that case involved a disinterment, the principles applied are the same here. There the executrix brought an action against the children of decedent who had the priority under Public Health Law § 4201 (2) (a) and had buried the decedent in a local Jewish cemetery. At the hearing the court found that petitioner had proved through testimony and exhibits that decedent had wished to be buried in Israel.^[FN2] After making that determination, the court's order to effectuate decedent's wishes pursuant to Public Health Law § 4201 (2) (c) did not disqualify the children under Public Health Law § 4201 (2) (b), although the court found that their act in burying the decedent against her wishes made them "not competent to serve." Instead, among other things, the order only directed that decedent be disinterred, transported to Israel and reburied in the cemetery there.

Here, although petitioner has established that decedent's wishes were to be buried on Long Island, she has not established that respondent is "not reasonably available, unwilling or not competent to serve." Unlike the "incompetent children" in Lipiner who buried their mother locally when they knew of her wishes to be buried in Israel, respondent has taken no affirmative{**84 Misc 3d at 241} action such as burying decedent in the plot at Maple Grove Cemetery in Worcester. As the 28-year husband of decedent he may have held firmly to his beliefs that his wife should be buried in a plot with him in Worcester where they had spent their married life and that such was her wishes, but there is no evidence presented that he will not follow the decision of this court. In fact, as petitioner had not been granted a temporary injunction on her order to show cause, respondent could have acted to bury decedent at any time before now, but has not.^[FN3]

Accordingly, the court orders and directs respondent to arrange for the orderly transfer of his wife's remains from the Heller & Skinner Funeral Home, Worcester, New York to St. Charles Cemetery, 2015 Wellwood Avenue, Farmingdale, New York for burial in the plot purchased there. Such arrangements shall be made within 14 days of the date of this decision.

If respondent is unwilling to abide by the decision of the court, or if respondent decides in light of this decision to relinquish his priority under Public Health Law § 4201 (2) (a), his counsel must notify petitioner's counsel and the court of such fact by May 2, 2024, by writing filed in NYSCEF.^[FN4] In such circumstance, this order will relieve respondent of his priority under Public Health Law § 4201 (2) (a) as he is unwilling and incompetent to serve faithfully pursuant to Public Health Law § 4201 (2) (c) and petitioner will be [*5]substituted in his place pursuant to Public Health Law § 4201 (2) (b) to effectuate the burial according to decedent's wishes.

Although this decision is undoubtedly hurtful to respondent, the court hopes that respondent and decedent's Long Island family can work together to see that the burial is accomplished pursuant to decedent's wishes. The court believes that decedent's spirit will not want her burial wishes to be accomplished with acrimony, spite or mistrust.