Opinion
80142/2008.
Decided September 4, 2008.
This action was commenced by the petitioner seeking to disinter the remains of her late husband after 13 years of internment. Petitioner seeks to relocate the remains of the deceased, Vincent Coraggio, from the defendant Cemetery of the Resurrection located in Staten Island, New York to St. Joseph's Catholic Cemetery located in Tom's River, New Jersey. Petitioners contend that disinterment is warranted because they are unable to visit the deceased's remains as often as they would like, and because they wish to have a family plot in New Jersey.
The Cemetery has no opposition to the motion.
Respondent, Michael Coraggio, the son the deceased, contends that his father chose to be interred at Cemetery of the Resurrection as his final resting place along with other relatives, and should not be disinterred for the petitioners convenience. In fact, after his father purchased the plot at the Cemetery of the Resurrection, both respondent's sister and uncle purchased plots or mausoleums in the same cemetery to ensure burial with the family. Further, Michael contends that immediately prior to his fathers death, his mother purchased a mausoleum at the Cemetery of the Resurrection, without his father's knowledge or consent, and had him interred in the mausoleum, instead of his intended burial plot. As a result, respondent contends that petitioners are seeking to disinter the deceased for a second time, removing his remains from the mausoleum which the petitioner chose, to a mausoleum in New Jersey all for petitioner's convenience.
It it well settled law that courts will not disturb the final resting place of the deceased unless "good and substantial reasons are shown" ( Saperstein v. Commercial Travelers, 36 NY2d 79, 84. In examining the reasons presented courts are inclined to consider "benevolent discretion, giving heed to all those promptings and emotions men and woman hold sacred in the disposition of their dead and must render judgment" appropriately ( Yome v. Gorman, 242 NY 395). Courts will take into consideration the wishes of the family in a disinterment petition, but the wishes of the deceased are a "significant concern" and may prevail over that of even the surviving spouse ( Briggs v. Hemstreet-Briggs, 256 AD2d 894 [1st Dept., 1998]).
Here, the petitioners contention that deceased Vincent Coraggio's remains be disinterred for their convenience and to have a family plot in New Jersey, are unavailing. The petitioner, in seeking to relocate her late husband's remains against his obvious wishes, for a second time, to a location of her choosing, is not a good nor substantial reason to disinter the deceased after 13 years of repose.
Respondent Michael Coraggio has presented evidence that deceased Vincent Coraggio wished to be buried, in the ground, at the defendant Cemetery of the Resurrection in Staten Island and not in New Jersey. Further, respondent has established that Vincent Coraggio, during his life, selected his desired burial plot and as a result, several family members purchased adjacent lots in order to preserve a family plot. It is clear that the deceased desired to be buried among family, in the ground, at the Cemetery of the Resurrection in Staten Island, New York. The petitioner's second attempt to disinter her late husband's remains provide no good and substantial reason for disinterment especially in light of the respondent's evidence of the deceased wishes ( Briggs v. Hemstreet-Briggs, 256 AD2d 894 [1st Dept., 1998]). As a result, this court will not disturb the final resting place or wishes of the deceased Vincent Coraggio, as the petitioner has failed to demonstrate any substantial or good reason to support disinterment ( Saperstein v. Commercial Travelers, 36 NY2d 79, 84; Yome v. Gorman, 242 NY 395).
Accordingly, it is
ORDERED that petitioner's Order to Show Cause is denied.
THIS IS THE DECISION AND ORDER OF THE COURT.