Man-Hung Lee v. Hartsdale Canine Cemetery, Inc.
Decision Date | 26 April 2010 |
Citation | 28 Misc.3d 234,899 N.Y.S.2d 823 |
Parties | MAN-HUNG LEE, Plaintiff, v. HARTSDALE CANINE CEMETERY, INC., Defendant. |
Court | New York Supreme Court — Appellate Division |
Renzulli Law Firm, LLP, by John V. Tait, Esq., White Plains, attorneys for plaintiff defendant on counterclaim.
The Kelly Group, PC, by John Quinlan Kelly, Esq., New York, attorneys for defendant plaintiff on counterclaim.
Plaintiff has commenced this small claims action to recover damages resulting from the alleged wrongful exhumation and cremation of Dodo, a mixed breed dog who emigrated with plaintiff from China to the United States. Defendant has counterclaimed for damages resulting from plaintiff's alleged breach of an agreement to pay annual fees for the maintenance of Dodo's burial plot and general upkeep of the pet cemetery. Having weighed the evidence adduced at trial, and having had ample opportunity to observe the demeanor and assess the credibility of the witnesses, the Court makes the following findings of fact and conclusions of law.
On January 5, 2000, plaintiff and her husband went to the Hartsdale Pet Cemetery and Crematory (the "Cemetery") for the purpose of discussing Dodo's burial. On this date, plaintiff and a Cemetery employee talked about various aspects of the burial process and options available. Among the topics discussed were the disposition of Dodo's remains, the location and size of a burial plot, the style and cost of a casket and monument, and the available fees associated with the maintenance and upkeep of the plot and Cemetery grounds. As a result of the discussion, plaintiff elected to have Dodo's remains placed in an oak casket costing four-hundred and ninety-five dollars. Plaintiff selected the option of an individual burial at a cost of one-hundred and ninety dollars and reserved a plot which was sufficient in size to also accommodate the eventual burial of plaintiff's second dog, Bobo. The monument chosen was heart-shaped, pink in color, engraved with Chinese lettering and provided a space fordual photographs of Dodo and Bobo. The cost of the monument was seven-hundred and eighty-three dollars.1
On the same date, plaintiff received and signed a Burial Right Certificate (the"Certificate"). The front of the Certificate provides in pertinent part as follows:
The reverse side of the Certificate contains, in pertinent part, the following:
The Agreement dated May 14, 1914, and made part of the Certificate, provides, in relevant part, the following:
Consistent with ¶ 2 on the reverse side of the Certificate, defendant's employee provided plaintiff with the option of choosing either annual care or perpetual care for Dodo's plot. Plaintiff elected annual care. An invoice was generated which included, among the various costs indicated above, a charge of four-hundred and fifty dollars for the Certificate and concomitant right to bury Dodo in the Cemetery, along with a charge of thirty-one dollars for the annual care of Dodo's resting place. The invoice was paid in full on January 5, 2000. Notably, the invoice indicates that plaintiff provided a residential address which was located in Middle Village, New York.
Thereafter, plaintiff visited Dodo's plot biannually, leaving an apple and flowers inthe summer and a pumpkin and flowers in the fall. Defendant continued to maintain Dodo's plot and the Cemetery grounds, which included, among other things, the remounting of Dodo's picture which had apparently dislodged from the face of Dodo's monument.
Defendant mailed invoices to plaintiff at her Middle Village, New York address in 2001, 2002, 2003 and 2004, each invoice requesting payment for the annual care of Dodo's plot and Cemetery grounds. No payments were received from plaintiff. More specifically, invoices which billed for both 2001 and 2002 annual care of Dodo's plot were mailed to plaintiff. These invoices were never returned as undeliverable. The invoice which billed for 2003 annual care was mailed in late December...
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