Opinion
No. CV–2015–0146170.
11-30-2015
John MANSON, Petitioner, v. Diana MANSON and Roman Catholic Community Of Morristown, Hammond and Rossie, Respondents.
Conboy, McKay, Bachman & Kendall, LLP, Canton (Scott B. Goldie of counsel), for petitioner. Diana Manson, Hammond, respondent pro se. Stokes Young PLLC, Heuvelton (Kevin J. O'Brien of counsel), for respondent Roman Catholic Community of Morristown, Hammond and Rossie.
Conboy, McKay, Bachman & Kendall, LLP, Canton (Scott B. Goldie of counsel), for petitioner.
Diana Manson, Hammond, respondent pro se.
Stokes Young PLLC, Heuvelton (Kevin J. O'Brien of counsel), for respondent Roman Catholic Community of Morristown, Hammond and Rossie.
ROBERT J. MULLER, J.
Although two undesirable options are a dilemma this petitioner perceives only one and brings this N–PCL 1510(e) proceeding seeking permission to disinter the body of his son, John William Manson who, at age three, died in a car accident on June 2, 1976. The petitioner seeks to secure a different eternal resting place for his long deceased son—in order that the petitioner not have to someday rest until the end of time in a cemetery plot which, although actually owned by him and the respondent Diana Manson (hereinafter respondent), the child's mother, in easement, is undesirable for personal reasons pertaining to events surrounding the alienation of each parent from the other. The Petitioner has purchased three adjoining plots in the nearby Riverside Cemetery in Rossie, New York, and wishes that the child be buried between his parents, also proposing to deed one of these plots to respondent, in order that this end be achieved.
The petition is opposed by respondent Roman Catholic Community of Morristown, Hammond, and Rossie (hereinafter the Parish) which operates the cemetery—as well as respondent, who is now estranged from petitioner. The reply submissions demonstrate that petitioner and respondent are also owners in the Parish cemetery of an easement consisting of five graves located at lot number 12, row sixteen, section “A.” Their son's remains are in one of these five sites.
In part the Parish argues against the petition in a manner that is unavoidably intertwined with questions of faith and church doctrine-not a landscape generally open to civil courts (see Serbian E. Orthodox Diocese for the United States of Am. and Can. v. Milivojevich, 426 US. 696, 709–710 [1976] ). The Parish also suggests that, with the passage of so many years and its uncertainty as to whether the casket was sealed in a vault, the remains might not even be intact. Lastly, the Parish emphasizes that a space already exists to allow the petitioner to have what he seeks without a disinterment.
Respondent argues that granting the relief requested settles upon her the incalculable pain of burying her child twice-although this is an inescapable burden for the petitioner to carry as well. It is also implicit in respondent's opposition that she embraces the Parish concerns regarding the present condition of her son's remains. The surviving next of kin also oppose the request that their brother's body be moved.
While the preferences of a decedent can be determinative the wishes of this young child that he would have wanted to be buried alongside his parents are perceived only intuitively by the petitioner. These papers and pleadings do not raise a material issue of fact concerning the burial wishes of this decedent requiring an evidentiary hearing (see Matter of Jones v. Marcy, 135 A.D.2d 887, 888 [1987] ; compare Matter of Conroy, 138 A.D.2d 216 [1988], appeal dismissed 73 N.Y.2d 810 [1988] ).
This Court also recognizes that from time to time there may be reasons necessitating a disturbance of the repose of the dead but that this requires either some substantial controlling public reason or a superior private right to convince the court to permit that “which from time immemorial has been considered abstractly as a work of desecration” (Matter of Ackermann, 124 App.Div. 684, 685 [1908] ). Accordingly, there may be occasions upon which one's superior right over another can chart a course in favor of disinterment. Neither of these parents—these many decades past—had a superior right over the other in selecting and agreeing to their son's place of burial. The passage of time has neither altered their long held grief nor upset their equal status.
This Court is also mindful that “[o]ne may not fix their values in advance, for in so doing one would overlook the varying force of circumstance” of which human relationships, august ceremonies, rituals surrounding birth and death and their attendant tragedies are but a part (Yome v. Gorman, 242 N.Y. 395, 402 [1926] ). Such is the very center of this matter, with “conflicting inferences of duty and propriety” and the predominating goal of each that they be together in death as they were in life (id. ). The petitioner, by instituting this proceeding, gives voice to a Hobson's choice of his own making: To be laid to rest beside his son in the Parish plot he and respondent already own—or not.
By applying neutral principles of law the only issue before this Court is whether there are good and substantial reasons that favor permission to disturb “the quiet of [decedent's] grave” ' (Matter of Briggs v. Hemstreet–Briggs, 256 A.D.2d 894, 894 [1998], quoting Matter of Currier [Woodlawn Cemetery], 300 N.Y. 162, 164 [1949] ). Indeed the decision whether to grant permission to disinter requires the exercise of a well-meaning discretion moderated by a benevolent respect for the powerful emotions humans experience concerning the remains of their loved ones (see Yome v. Gorman, 242 N.Y. at 402 ; Matter of Currier [Woodlawn Cemetery], 300 N.Y. at 164 ). “The dead are to rest where they have been laid unless reason of substance is brought forward for disturbing their repose” (Yome v.. Gorman, 242 N.Y. at 403 [citation omitted]; see Matter of Ackermann, 124 App.Div. at 685 ).
Good and substantial reasons have included an impossibility of burial due to one's religious affiliation (see Matter of Eirand–Herskowitz v. Mt. Carmel Cemetery Assn., 82 AD3d 1231, 1232 [2011], lv denied 17 NY3d 711 [2011] ), and even unavailability of an adjoining plot (see Matter of Pring v. Kensico Cemetery, 54 AD3d 766, 767 [2008] ). The reasons advocated here, particularly in light of the Parish plot already jointly owned and available to the petitioner, serve to emphasize the degree to which this is more a family quarrel than a just cause. The petitioner has not met his burden of showing “[g]ood and substantial reasons” why the repose of his son should be disturbed (Matter of Currier [Woodlawn Cemetery], 300 N.Y. at 164 ).
Therefore, it is hereby
ORDERED AND ADJUDGED that the petition is denied in its entirety.
The foregoing constitutes the full and complete Order and Judgment of this Court. Any other relief not addressed herein is specifically denied.
The original of this Decision and Judgment is returned to counsel for the Parish for filing and service with notice of entry. The papers reviewed as listed hereinbelow have been filed by the Court.