Man-Hung Lee v. Hartsdale Canine Cemetery, Inc.

Decision Date26 April 2010
Citation28 Misc.3d 234,899 N.Y.S.2d 823
PartiesMAN-HUNG LEE, Plaintiff, v. HARTSDALE CANINE CEMETERY, INC., Defendant.
CourtNew 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.

BRIAN HANSBURY, J.

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.

Findings of Fact

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:

"This is to certify that the aforementioned individual has been granted to him/her and his/her heirs and devisees the exclusive use of the above stated plot as a burial place for deceased pet animals, under the terms, limitations and conditions declared and specified in a certain agreement dated May 14, 1914, and recorded in the office of the Register of the County of Westchester in Liber 2055 of Deeds, page 335; subject to the rules and regulations specifically enumerated on the reverse side of this Certificate. Said rules and regulations are incorporated therein and made part and parcel of this Certificate with the same force and effect as if fully rewritten and incorporated herein."

The reverse side of the Certificate contains, in pertinent part, the following:

"Rules and Regulations of the Hartsdale Canine Cemetery:
(1) This Burial Right Certificate grants the plot-holder the privilege of burying deceased pet animals in the Hartsdale Canine Cemetery in the designated location set forth in this document. The Burial Right Certificate is not a deed, but merely grants the holder a burial right subject to certain conditions, stipulations and limitations as set forth below.
(2) All holders of burial rights are required to contribute his/her proportionate share toward the maintenance and general upkeep of the cemetery. This may be accomplished by assessing an annual charge payable in advance or by a single payment to the Perpetual Care Trust Fund.
(3) In the event the annual charge on any lot remains unpaid for three years after such charge becomes due and payable, this corporation shall have the right to serve a notice by ordinary mail addressedto the plot-holder of record at the address last known to this corporation. This notice will advise the holder that all rights, including the rights to any monuments affixed thereto, shall cease and terminate and will revert to this corporation if payment is not received within six months after the mailing of such notice. The Hartsdale Canine Cemetery, Incorporated is not responsible for any consequences resulting from the failure of mail to reach the plot-holder.
(9) This corporation may from time to time make such rules and regulations as its Board of Directors may deem requisite and proper to secure and promote the general objectives of the Cemetery."

The Agreement dated May 14, 1914, and made part of the Certificate, provides, in relevant part, the following:

"And Whereas, the said Arthur S. Luria, Gustavus W. Rawson and Charles Bates Dana have constituted themselves a Committee to receive voluntary contributions from plot holders in the [Hartsdale Canine Pet Cemetery, Inc.] and others, for the upkeep and improvement of the burial plots and of said cemetery as it now exists, and the owner thereof desires that the cemetery as it now exists shall receive the benefit of the efforts of such Committee and its successors as aforesaid....
THIRD. The Owner covenants and agrees that each and every of the present and future plot holders, whether such under licenses, burial permits, or burial rights, by whatever name called, which have heretofore been issued by said Samuel K. Johnson [President], or which have been or may be hereafter issued by the said Owner, its successors or assigns, shall have and hold the exclusive use of the plot or plots designatedin such license or permit, or burial rights, by whatever name called, as a burial ground for canines or other deceased pet animals, which exclusive use the Owner hereby grants and confirms to such plot holders, his or her heirs or devisees, in perpetuity; upon the condition, however, that such plot holder, his or her heirs or devisees shall hold such plot or plots as and for such burial place and shall maintain thereon some monument, fence or railing or otherwise care for the same, so that such plot or plots shall be kept in good order and uponthe grounds be designated and identified as such burial place, and in case of failure so to do the said Owner shall have the right to serve a notice by mail addressed to said plot holder, his or her heirs or devisees last known to such Owner, at the address of either of such persons last known to it, and also to the Secretary and Treasurer of the heretofore mentioned Committee, last known to said Owner, at their address last known to it, stating that if he or she does not for six months after the mailing of such notice hold such plot or plots as and for a burial place and maintain thereon some monument, fence or railing, or otherwise care for the same so that such plot or plots shall be kept in good order and upon the grounds be designated and identified as such burial place, all the right, title and interest of such person in and to such plot and Cemetery in general under this agreement shall cease and determine and revert to said Owner, for the purpose of other burials....
SIXTH. The Owner covenants and agrees that it will not disturb nor consent to the disturbance of such plots nor any of them, nor will the said Owner disinter or permit any disinterment, without the consent in writing of the plot holder, except upon a reversion of such plot obtained in the manner hereinbefore provided in paragraph Third....
EIGHTH. The Owner covenants and agrees that this agreement shall form and be a part of all past, present and future licenses, permits or rights of burials, by whatever name called, whether issued by Samuel K. Johnson or the said Owner, its successors or assigns, the same as if incorporated therein at length, and each license, permit or burial right, by whatever name called, hereafter issued by the said Owner, its successors or assigns, shall refer to this agreement as a part thereof....
ELEVENTH. This agreement shall be binding upon the Owner, its successors and assigns, and upon the said Committee and its successors in office, and the covenants shall run to all present and future holders of burial plots in said Cemetery, whether such under licenses, permits or burial rights, by whatever name called, which have heretofore been issued by Samuel K. Johnson, or whichmay have been, or may be hereafter issued by said Owner, its successors or assigns."

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...

To continue reading

Request your trial
3 cases
  • Vinifera Imports Ltd. v. Societa Agricola Castello Romitorio SRL
    • United States
    • U.S. District Court — Eastern District of New York
    • March 12, 2020
    ... ... 2009) (quoting Anderson v ... Liberty Lobby , Inc ., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 ... The writings satisfy the Statute of Frauds."); Man-Hung Lee v ... Hartsdale Canine Cemetery , Inc ., 899 N.Y.S.2d ... ...
  • Lidakis v. N.Y. City Employees' Ret. Sys.
    • United States
    • New York Supreme Court
    • April 26, 2010
    ... ... ( See Consolation Nursing Home, Inc. v. Commissioner of New York State Dept. of Health, 85 ... ...
  • Gural v. Drasner
    • United States
    • New York Supreme Court
    • August 3, 2012
    ...frauds where that performance is unequivocally referable to the oral agreement") (internal citations omitted); Man-Hung Lee v. Hartsdale Canine Cemetery, Inc., 28 Misc. 3d 234 (City Co. White Plains 2010) ("where an agreement fails to comply with General Obligations Law §5-701(a) the doctri......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT