SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF ROCKLAND

IN THE MATTER OF THE APPLICATION OFPHILLIP SCHONBERGER CONCERNINGTHE INGROUND BURIAL OF THE REMAINSOF MARTIN MENDELSOHN,

Petitioner,

-against-

HELLMAN MEMORIAL CHAPELS andSTEVEN MENDELSOHN,

Respondents.

Index No. 1612/2015

(Alfieri, J.)

RESPONDENT STEVEN MENDELSOHN’S POST-HEARING BRIEF IN OPPOSITION TOPETITION FOR AN ORDER THAT THE REMAINS OF MARTIN MENDELSON BE

BURIED AND NOT CREMATED

Holwell Shuster & Goldberg LLP125 Broad Street, 39th FloorNew York, New York 10004

(646) 837-5151

Attorneys for Respondent Steven Mendelsohn

TABLE OF CONTENTS

PRELIMINARY STATEMENT .................................................................................................... 1

FACTS ............................................................................................................................................ 4

1. Direct evidence of Marty’s intent ....................................................................................... 4

2. Marty and Steve had a close relationship........................................................................... 5

3. Steve’s decision regarding his brother’s remains .............................................................. 6

4. Marty’s upbringing ............................................................................................................. 7

5. Marty as an adult ................................................................................................................ 8

6. Jewish law and cremation................................................................................................. 12

ARGUMENT................................................................................................................................ 13

I. Under Public Health Law § 4201, the Court Should Defer to the Family’s Good-Faith Decision Absent Specific Evidence that the Decedent Opposed It. ........................ 13

A. Courts Will Not Override a Good-Faith Exercise of § 4201(2)(a) RightsAbsent Direct, Contrary Evidence of the Decedent’s Wishes. ............................. 14

B. The Statutory Structure of § 4201 Shows that the Court Should Defer tothe Good-Faith Decision of the Highest-Ranking Person Under§ 4201(2)(a) Because, Without Deference to that Individual, the PriorityList in § 4201(2)(a) Is Mere Surplusage. .............................................................. 17

C. The Legislative History of § 4201 Shows that the Purpose of the Statute isto Eliminate or Resolve Disputes over a Decedent’s Remains, Which AlsoRequires Deference to a Good-Faith Decision Made under § 4201(2)(a). ........... 18

II. Under the “Missing Witness Doctrine,” the Court Should Draw AdverseInferences from Petitioner’s Choice Not to Testify Because He Claims to HaveDirect Knowledge of Marty’s Beliefs and Wishes Since 2007 Yet Withheld thatEvidence............................................................................................................................ 20

III. The Evidence Shows that Marty Wanted Steve to Take Care of His Remains, thatCremation Is Appropriate to Marty’s Wishes, and Marty’s Minimal ReligiousBehavior Does Not Rise to the Level of Proving any Opposition to Cremation.............. 22

IV. As Applied Here, Public Health Law § 4201 Is Unconstitutional Because ItRequires Courts to Interpret, Define, and Apply Religious Doctrine,Impermissibly Entangling the Court in Matters of Religion. ........................................... 27

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V. Petitioner Lacks Standing Because He Does Not Fall Into any Category under§ 4201(2)(a), Suffered No Injury in Fact, and Is Alleging a GeneralizedGrievance. ......................................................................................................................... 31

CONCLUSION............................................................................................................................. 33

iii

TABLE OF AUTHORITIES

Pages

Cases

Adam K. v. Iverson, 110 A.D.3d 168 (2d Dep’t 2013) ..................................................................20

Avitzur v. Avitzur, 58 N.Y.2d 108 (1983) ......................................................................................27

Beckford v. Thomas, 14 Misc. 3d 1205(A) (Civ. Ct. 2006)...........................................................33

Bochnik v. Gate of Heaven Cemetery, 32 Misc.3d 269 (Sup. Ct. Westchester Cnty. 2011) .........15

Caseres v. Ferrer, 6 A.D.3d 433 (2d Dep’t 2004).........................................................................32

Cohen v. Congregation Shearith Israel in City of New York, 114 A.D. 117 (1st Dep’t1906) aff’d, 189 N.Y. 528 (1907) ............................................................................................25

Commack Self-Serv. Kosher Meats, Inc. v Weiss, 294 F.3d 415 (2d Cir. 2002)......................29–30

Congregation Yetev Lev D’Satmar, Inc. v. Kahana, 9 N.Y.3d 282 (2007) .............................27–29

Currier v. Woodlawn Cemetery, 300 N.Y. 162 (1949)..................................................................26

Eaton v. New York City Conciliation & Appeals Bd., 56 N.Y.2d 340 (1982)...............................31

Farrell v. Labarbera, 181 A.D.2d 715 (2d Dep’t 1992)................................................................21

Gerardi v. Paul W. Harris Funeral Home Inc., 48 Misc.3d 200 (Sup. Ct. Monroe Cnty.2014) ........................................................................................................................................33

In re Clarissa S.P., 91 A.D.3d 785 (2d Dep’t 2012) .....................................................................21

In re Grace D., 31 Misc.3d 622 (Sup. Ct. Queens Cnty. 2011).....................................................15

In re Solomon, 196 Misc.2d 599 (Sup. Ct. Nassau Cnty. 2003)........................................16–17, 24

Katz v. Gangemi, 60 A.D.3d 819 (2d Dep’t 2009) ........................................................................21

Mack v. Brown, 82 A.D.3d 133 (2d Dep’t 2011).....................................................................18–19

Majewski v. Broadalbin-Perth Cent. Sch. Dist., 91 N.Y.2d 577 (1998)........................................18

Mandel v. Silber, 304 A.D.2d 538 (2d Dep’t 2003) ......................................................................27

Maurer v. Thibeault, 20 Misc.3d 631 (Sup. Ct. Cortland Cnty. 2008)..........................................16

iv

Nassau Cnty. Dep’t of Soc. Servs. on Behalf of Dante M. v. Denise J., 87 N.Y.2d 73(1995).......................................................................................................................................20

Park Slope Jewish Ctr. v. Congregation B’nai Jacob, 90 N.Y.2d 517 (1997)........................27–28

Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church,393 U.S. 440 (1969)...........................................................................................................27–29

Rocovich v. Consol. Edison Co., 78 N.Y.2d 509 (1991) ...............................................................17

Sam v. Church of St. Mark, 293 A.D.2d 663 (2d Dep’t 2002) ......................................................27

Shepherd v. Whitestar Devel. Corp., 113 A.D.3d 1078 (4th Dep’t 2014).....................................31

Soc’y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761 (1991).......................................31

Transactive Corp. v. New York State Dep’t of Soc. Servs., 92 N.Y.2d 579 (1998).......................31

Wende C. v. United Methodist Church, 4 N.Y.3d 293 (2005).......................................................27

Widmar v. Vincent, 454 U.S. 263 (1981).......................................................................................30

Statutes

New York Public Health Law § 4200 et seq. ......................................................................... passim

Respondent Steven Mendelsohn (“Respondent” or “Steve”) respectfully submits this

memorandum in opposition to the motion of petitioner Phillip Schonberger (“Petitioner”) for an

injunction requiring that the remains of the decedent Martin Mendelson (“Marty”) not be

cremated and that they be buried in New York State according to Jewish law and tradition at the

sole cost and expense of Petitioner pursuant to New York Public Health Law § 4200, et seq.1

The Court originally denied the petition on September 18, 2015. Petitioner obtained a stay of

that order and sought reargument. The Court held an evidentiary hearing October 8–13, 2015.

PRELIMINARY STATEMENT

There is only one piece of direct evidence of Marty’s specific intentions for his remains.

In a “personal data sheet” kept on file at the Evergreen Court home where Marty lived, the form

included space to enter instructions for his remains upon his death, and Marty filled in:

“FAMILY TAKING CARE.” See Pl. Ex. 5. Marty could have specified that he wanted to be

buried in a Jewish cemetery, but he did not. Instead, he left the discretion to his brother. Marty

also could have revised this form anytime while at Evergreen by specifying that he wanted to be

buried in a Jewish cemetery, but he did not. The only direct, documentary evidence of Marty’s

specific wishes for disposing of his remains shows that his brother Steve should decide. And as

Marty’s only brother, Steve is the only person with the legal authority to decide, as the Court

correctly ruled in denying the initial Order to Show Cause. See Pub. Health Law § 4201(a)(2)(v).

Based on their close relationship over 65 years, Steve made a good-faith determination

that Marty would not have wanted to be alone in the ground and instead would have wanted to be

with Steve. Marty and Steve grew up together in Brooklyn and were very close. Marty helped

Steve walk before Steve learned how to use a cane, and they grew even closer after their mother

1 Because Martin Mendelsohn and Steven Mendelsohn share the same last name, this brief refers to the decedent as“Marty” and Respondent as “Steve” for the sake of clarity.

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died when they were children. Even as adults, they often lived together in a two-bedroom

apartment with their father. When they lived apart, they shared meals together and talked by

phone at least once a week. In recent years, they spoke by phone every Sunday, and Steve

visited Marty in Spring Valley every time Steve came to New York City, twice a year. Marty

said many times that he did not want to live alone. Based on their long history together, Steve

determined that Marty would not have wanted to be alone in a grave and that Marty’s remains

should be cremated so that they could be together.

Out of all the publicly available decisions applying § 4201, not a single one has

overturned a family member’s decision to dispose of a loved one in the absence of direct

evidence of the decedent’s specific wishes, such as purchasing a burial plot or specifically stating

a desire to be buried. In order to rule for Petitioner, this Court would have to break new ground

under § 4201 by overriding a family member’s decision based on nothing but circumstantial

evidence offered by the general public.

Without appropriate deference to the decision of the decedent’s closest family members

pursuant to § 4201(2)(a), there would be no need for statutory ranked list of persons authorized

to make those decisions, rendering § 4201(2)(a) pure surplusage. That construction of the statute

is impermissible because it runs afoul of the fundamental rule that statutory provisions should be

construed to avoid rendering one provision pointless. Relatedly, the purpose of § 4201 is to

avoid disputes following a loved one’s death by establishing a strict hierarchy of persons to

control a decedent’s remains; deferring to a family member’s good-faith decision will discourage

such disputes, whereas opening the courthouse doors to anyone claiming to know what a

decedent might have wanted will only encourage such disputes.

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Even assuming no deference should be accorded to the decision of Marty’s only brother,

and even setting aside the evidence that Marty specifically entrusted Steve with this decision,

Petitioner’s circumstantial evidence does not rise to the level of proving Marty would have

opposed Steve’s plan. Marty “never expressed religious views,” “never spoke of any decisions

as being influenced by religious considerations,” did not seek religious guidance concerning

“souls” or the “afterlife,” and did not engage in a wide variety of behaviors common to followers

of Judaism. Although Petitioner offered evidence that Marty attended Jewish services ten years

ago, Petitioner failed to provide any evidence that Marty attended services for the eight years

leading up to his death. Petitioner and his employees could have provided testimony to fill that

gaping hole in the evidence, but they chose not to. Under the “missing witness doctrine” in civil

cases, the Court should infer that their testimony would have been unfavorable to Petitioner’s

case on that issue. In any event, merely attending services does not mean Marty adhered to all

tenets of Jewish law. Even consulting “Jewish law” does not establish Marty’s beliefs because,

as Petitioner’s own expert agreed, the “Reform” movement within Judaism — the largest sect

within Judaism — does not prohibit cremation and does not hold as a tenet of Judaism that

resurrection requires a physical corpse to be reunited with a soul. Petitioner’s evidence is

insufficient, requiring the Court to guess what Marty might have wanted.

The United States Constitution’s principles of religious freedom and separation of church

and state also counsel in favor of requiring direct evidence of a decedent’s specific wishes rather

than merely inferring them from a purported adherence to a particular religion. By asking this

Court to define Jewish law regarding cremation and adopt that definition as the “true” version of

Judaism, Petitioner’s argument requires this Court to apply § 4201 in a manner that entangles the

Court in religious disputes and matters of religion. Under bedrock First Amendment principles,

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civil courts cannot adjudicate disputes that turn on interpretation and application of religious

doctrine. Petitioner’s argument could not be a more clear-cut violation of that rule: Petitioner

asks the Court to enshrine the Orthodox/Conservative view of cremation as the “true” Jewish law

of cremation even though Reform Judaism rejects that view, and Petitioner asks the Court to

impose that view of cremation on Marty even though there is no evidence Marty accepted that

view over competing views. Under the First Amendment, those matters are inappropriate for

civil courts to resolve.

Finally, as the Court correctly ruled in declining to sign the original Order to Show

Cause, Petitioner lacks standing to challenge Steve’s decision. In order to have standing to

challenge the disposition of a person’s remains, a petitioner must fall into one of the enumerated

categories under § 4201(2)(a). Although Petitioner claims under § 4201(2)(a)(ix) that he is a

“close friend” of Marty’s that is “reasonably familiar” with Marty’s wishes, Petitioner offered

zero evidence that he ever met Marty, much less that he had personal knowledge of Marty’s

wishes concerning his remains. Petitioner is merely a member of the general public who

suffered no injury to any legally cognizable interest.

For those reasons, as further explained below, the Court should deny the petition.

FACTS

1. Direct evidence of Marty’s intent

There is only one source of direct evidence of Marty’s specific wishes for his remains

upon his death, and that evidence shows Marty wanted his brother to make decisions regarding

his remains. Plaintiff’s Exhibit 5 is “a personal data sheet which is used upon admission” to an

adult home and kept on file at Evergreen Court as “required by the Department of Social

Services.” 10/8/15 Tr. 45, 47. The document is dated June 17, 2004, when Marty was

discharged from an adult home in Long Beach to Evergreen Court. Pl. Ex. 5. The form was

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later updated in September 2015 to reflect Marty’s death. Id. The form includes a section for

“Family Information,” which identifies Steve Mendelsohn, Marty’s brother, as Marty’s

“Representative.” Also within the section for “Family Information” is a field for “Burial

Instructions,” which states, “FAMILY TAKING CARE.” The decedent therefore expressed his

specific intent regarding disposition of his remains: his brother Steve — Marty’s only “family”

by that time — should make the decisions.

2. Marty and Steve had a close relationship

Steve and Marty Mendelsohn were born one year apart and had no other siblings.

10/9/15 Tr. 183. Their relationship was “very good” and “very close,” and they “were together

almost all the time.” 183–84. Their mother died when Steve was nine years old and Marty was

eight, and as a result they “even grew closer together.” 184–85. Because Steve, who is sightless,

did not learn to walk with a cane until he was 14, Marty helped Steve walk and served as Steve’s

“eyes.” 185.

Marty, Steve, and their father lived together in a two-room apartment in Brooklyn

through high school. 188–89. Starting in 1963, Steve went to college at Columbia University

and lived on-campus but returned to live with his brother and father in the summers and on

weekends. 188–89. From the mid-1960s to the mid-1970s, Marty, Steve, and their father lived

together in the apartment on and off. 190.

As adults, Marty and Steve remained close. When they were living together, they spoke

every day.2 191. When they lived across town, they still spoke two to four times a week and had

lunch every month or every other month. 191. At Steve’s wedding, Marty was the best man.

2 Forty years ago, Marty asked Steve to loan him money. Marty was unable to repay, which Steve testified “upsetme somewhat,” even though they remained “cordial.” 191–92. After their father died a few years later in 1982,Steve decided that “since we were the only brother each of us had, it would be wrong and foolish and hurtful tocarry any grudge,” and Steve forgave Marty with no lasting effect on their relationship during the last 33 years. 192.

6

188. When Steve lived in California with his eventual wife, Steve and Marty still spoke on the

phone once or twice each week. 199–200. In recent years, they spoke every Sunday. 201, 202.

During their conversations, they would tell jokes, share what each other was doing, talk about

“things that we shared,” and discuss a variety of other topics, including “fun” topics like baseball

and weightier topics such as the interplay between world religions and geopolitics. 201–02, 217.

Steve wanted to speak with Marty each week “to be reassured that he was all right, that he was

doing okay, it mattered to me a great deal, yeah.” 202. When Steve came to New York from

California twice a year, he traveled to Rockland County to visit Marty, and they would go

shopping together and eat lunch together. 203–04. The last time they spoke was two days

before Marty died. 201. Steve’s last words to Marty were “I’ll talk to you next week pal.” 203.

Steve described Marty’s “intellect” as “very good,” noting that Marty had been “a great

reader” who was interested in history and the moral philosophy of Immanuel Kant and George

Santayana.3 217–19. Marty “was an anxious person” who “liked routine.” 205. Yet Marty

liked to have brief and casual conversations with people. 205.

3. Steve’s decision regarding his brother’s remains

Marty “made [it] very clear on many occasions” that “he did not want to live alone.”

217. During the 1970s, Marty tried living alone in his own place but returned to the family

apartment after only nine months and stayed there until 1996. 190–91. After their father died in

1982, Marty lived in the apartment by himself. 192. Marty “did not like living alone” in that

apartment, but he did so because “[t]he rent was very cheap.” 192. Living in the social

3 Kant’s writings laid the foundation for modern agnosticism, see Frank K. Flinn, Encyclopedia of Catholicism(2007), while Santayana “playfully called himself ‘a Catholic atheist.’” Kai Nelson, Empiricism, TheoreticalConstructs, and God, 54 J. of Religion 199–217, 205 (July 1974). There is no evidence that Marty was morallyoffended by Kant or Santayana’s philosophies.

7

environment of a group home “at a young age” gave Marty “comfort and security.” 217. At the

time of his death, Marty had no close relatives besides his brother Steve. 186.

Steve testified that deciding how to dispose of Marty’s remains has been “one of the

hardest decisions of my life.” 222. If Marty had wanted to be buried, Steve “would have done

exactly what he wanted” (219), but Steve is unaware of any suggestion that Marty wanted to be

buried. When their father died in 1982, Steve and Marty jointly determined that their father

wanted to be buried as their mother had been. 186, 221. But Marty never stated that he

preferred burial over cremation for himself. 221. As Steve testified regarding his

decisionmaking process, “What I want doesn’t matter. . . . I’m trying my hardest to figure out

what Marty would want. That is my touchstone for my decision.” 222.

Steve “propose[s] to have Marty’s remains cremated” because he believes “Marty would

not want to be alone and I believe he would want to be with me. If I do that, he can be with me.”

222. Steve testified that is “what I can best determine what Marty wants.” 222.

4. Marty’s upbringing

Growing up, Steve, Marty, and their parents were “secular Jews.” 206. They went to

services on high holidays but “were not observant” and “were never members” of a synagogue.

206. They “did not light the Shabbos candles or observe the Shabbos” and “did not have a

kosher home.” 206. Although Steve was Bar Mitzvah’d, Marty was not.4 206. Marty never

expressed any regret that he was not Bar Mitzvah’d. 206. Marty and Steve attended public

school rather than a yeshiva. 206–07. They both attended after-school Hebrew classes as part of

4 In each of the two winters leading up to the time Marty was to hold a Bar Mitzvah ceremony, he suddenly yettemporarily lost his voice. Even after exploratory surgery, doctors were unable to find any physical cause for thosesymptoms. After Marty’s voice returned permanently, he did not continue with Bar Mitzvah studies and did nothold a Bar Mitzvah. 207–08.

8

Bar-Mitzvah training for 7.5 hours a week for 3 to 4 years, but they “did everything [they] could

to get out of going,” and they both stopped attending after Steve’s Bar Mitzvah. 207-208.

5. Marty as an adult

Evergreen Court is secular

There is no evidence that Evergreen Court, where Marty lived until he died, was a Jewish

home. The verified petition initiating this action alleges that Evergreen’s residents “are members

of a variety of religious faiths and beliefs.”5 ¶ 25. There is no evidence that Marty “chose” to

live at Evergreen for any religious reason. There is no evidence that Marty “chose” his previous

residential facility in Long Beach (King David Manor) for religious reasons as opposed to being

placed there by the New York Social Services Department after his previous facility was shut

down. 254–55, 260. Nor is there any evidence that the Long Beach facility was a religious

facility.

Marty’s attendance at religious services

Before 2004

Petitioner offered no evidence that Marty ever attended religious services as an adult any

time before 2004 even though Marty allegedly lived in Petitioner’s adult home in Long Beach

from approximately 1999 until 2004 and even though Petitioner generally alleged that he was

familiar with Marty’s religious beliefs while Marty lived in that home. 32 (Petitioner owned the

facility where Marty lived previously), 251 (Marty lived in the Ambassador for one to three

years (1998 or 2000) before being relocated to Petitioner’s first facility); Verified Petition ¶ 10.

5 The allegations in the petition, verified by Phillip Schonberger, are ordinarily hearsay, but the statement thatEvergreen is a secular home is an admission by a party opponent and is not hearsay.

9

2004 to 2007

Ten years ago, Marty attended weekly Friday/Saturday religious services (Shabbos) from

2004 to 2007 that were conducted by Rabbi Sperlin. 5, 14–15. He also attended holiday services

for Yom Kippur (11, 15, 20), Hannukah (17), Simchat Torah (13, 15), Shavuot (9, 15), Purim

(13, 15), Passover (17–18), Rosh Hashana (19), and Succot (20). A former Evergreen employee,

Yitzchak Ullman, who left Evergreen in 2005 or 2006, testified that Marty wanted festive

holiday meals for Rosh Hashana, Yom Kippur, and Passover. 31, 42. At services, Marty read

prayers “when [the rabbi] came to him” during the ceremony. 18. The rabbi offered testimony

for only the period 2004 to 2007. He testified that he left Evergreen in 2007 and never spoke to

Marty again. 26–29.

Petitioner presented no evidence Marty ever sought religious counseling from 2004 to

2007. Marty did speak with Rabbi Sperlin from time to time at the conclusion of services,

asking questions “about [the] Torah, about God, about Moses, [and about] the holiday that was

that holiday” or about the sermon, 21–22, but “[a]fter any event [Marty] participated in, or

lecture, he would stay and want to talk to whoever was presenting it.” 259. And Marty never

discussed personal issues such as “souls and [the] after-life.” 25 (Rabbi Sperlin: “No, he never

spoke anything regarding that.”). That testimony is confirmed by Steve’s testimony that Marty

“never spoke of any decisions as being influenced by religious considerations.” 209.

2007 until Marty’s death in 2015

Despite the fact that Petitioner and his employees were in sole possession of this

information, Petitioner presented no evidence that Marty attended a single weekly religious

service for the final eight years of his life. Petitioner presented no evidence that Evergreen

suddenly stopped offering weekly religious services in 2007, and there is no evidence Marty was

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unable to attend services easily if he had wanted to, whether those services were held at

Evergreen or elsewhere. In fact, Evergreen had agreed to give Marty free transportation to and

from off-site houses of worship (Pl. Ex. 3; 10/8/15 Tr. 40), but Petitioner presented no evidence

that Marty ever attended any weekly services at any time between 2007 and the day he died. The

only evidence of any holiday services Marty attended in the final eight years of his life is that he

attended the blowing of the horn ceremony on Rosh Hashana — which lasted only “ten, fifteen

minutes” for two days out of the year (53, 62) — and the Succot ceremony where he held four

types of plants, said a blessing, and shook the plants (64). Marty sometimes thanked the shofar

rabbi for making a special trip to Evergreen and said God bless you to the rabbi (61), but the

rabbi did not know anything about Marty’s “private life” and did not know Marty’s last name.

52, 65.

No evidence Marty ever chose to keep kosher

Throughout their more than 65 years of life together, Marty and Steve shared “many

thousands” of meals together. 213–14. None were kosher. 214. When Steve visited Marty in

recent years, Marty would insist on eating at Red Lobster — a decidedly non-kosher restaurant

— where Marty would eat flounder and shrimp, a decidedly non-kosher food. 204. As children,

Marty and Steve’s family did not keep kosher. 206. Throughout their adult lives together, Marty

and Steve ate at non-kosher restaurants like Vic and Tony’s Italian restaurant, various Chinese

restaurants, Katz’s Deli, Carnegie Deli, the Green Tree Hungarian restaurant, and others.6 198.

Marty did not have “any particular interest in whether the food was kosher or non-kosher or any

qualms about what he ate.” 199.

6 Although they call themselves “kosher-style,” Katz’s and Carnegie are not kosher. Their websites show that theyserve food such as cheeseburgers, cheesesteaks, and Reubens with Swiss cheese, all of which violate the kosher lawagainst mixing dairy and meat. See 10/8/15 Tr. 88–89; http://katzsdelicatessen.com/local-delivery (last visited Oct.19, 2015); http://carnegiedeli.com/menus/sandwiches-deli-classics/ (last visited Oct. 19, 2015).

11

There is no evidence that Marty ever chose kosher food over non-kosher food when both

were equally available. At Evergreen Court, residents did not have the option to eat non-kosher

food. 209. There is no evidence that Marty chose to live at Evergreen Court because the food

there was kosher. There is no evidence that Marty ever commented favorably to anyone that the

food at Evergreen was kosher.

No other evidence of religious observance or belief

The uncontroverted evidence is that Marty “never spoke of any decisions as being

influenced by religious considerations.” 209. Marty “never expressed religious views.” 209.

He did not discuss souls or the afterlife with any rabbi. 25. There is no evidence Marty believed

in the Judeo-Christian concept of the resurrection of the body at the end of times. Marty was not

a member of any synagogue or temple. 209–210. There is no evidence Marty fasted on Yom

Kippur (213), even though “[e]ating on Yom Kippur is considered to be of the highest level [of

sin].” 105. Aside from a handful of non-specific questions to a rabbi ten years ago, Marty

“never talked about religion.” 209.

There is no evidence Marty ever recited the daily morning Modeh Ani prayers of giving

thanks to God for “resurrecting” the individual from sleep that Jewish law instructs Jews to recite

every morning. 210. There is no evidence that Marty ever recited the nighttime Shema prayer

that Jewish law requires Jews to recite before sleep. 210, 138. Marty did not own a prayer shawl

(tallis) that is “worn during prayer time.” 212, 140. Marty did not own tefillin, an instrument

that is worn “whenever a person was involved in, engaged in Torah study or prayer.” 213, 141.

Marty never had a Bar Mitzvah ceremony, an important rite for a Jewish man. 206, 143.

Marty never went to Israel. 211. Marty did not wear a Star of David. 210. There is no evidence

Marty wore a yarmulke; in fact, Plaintiff’s Exhibit 6 depicts the back and top of Marty’s head

12

during the Rosh Hashana ceremony the day before he died, and no yarmulke appears. Pl. Ex. 6;

10/8/15 Tr. 107. Marty did not know Hebrew or Yiddish. 212, 16. Marty did not donate to

Jewish charities or Jewish causes. 211.

Marty did not own or read any religious texts — there is no evidence that Marty even

kept a copy of the Torah. 210.

6. Jewish law and cremation

Jewish law is split on the topic of cremation. Reform Jewish law has permitted cremation

for 125 years. Petitioner’s expert, Rabbi Kelsen, testified that the essays setting forth religious

doctrine and published by the Central Conference of American Rabbis (CCAR) — called

“responsa” — are definitive statements of law in Reform Judaism. 159. Responsa No. 191

states: “Reform Jewish practice permits cremation.” (Def. Ex. C (stating in a 1990 essay that the

issue was resolved “a century ago”.) Responsa No. 5766.2 further states: “The North American

Reform movement does not regard cremation as a ‘sin.’” (Def. Ex. B, ¶ 3(a).) It also states, “we

hold that the procedure does not ‘contravene the law.’” Id.

As Rabbi Kelsen testified, this permissive approach to cremation is still consistent with

the general Jewish core belief in resurrection because Reform Jews “do not hold as a binding

belief that one must believe as dogma that the body itself, the corpus itself, as the Judge had said,

would be resuscitated.” 168–69. Instead, they “believe in the concept of a resurrection of some

form” but “leave it open” to interpretation “as to what exactly that means”. 168. Petitioner’s

expert also testified that “there is a great debate over” what the concept of resurrection “means”

(78) and that “[t]here may be questions and differences as to how and in what format [the

concept of resurrection] is taught and what it actually means” (119).

13

By contrast, Rabbi Kelsen testified that Orthodox and Conservative Jewish law prohibits

cremation (99)7 but that, even for those sects, cremation is not considered to be a severe sin and

instead is in “the same general category” as virtually all other sins. 105. He also testified that

despite the tenets of a particular Jewish sect, “I can obviously not attest to what everybody

teaches” and “[i]t’s difficult to say what everybody is aware about obviously.” 123, 117. And

while Rabbi Kelsen stated he was not an expert on Jewish cemeteries, he acknowledged that at

least Reform rabbis will perform ceremonies for cremated Jews and that he is aware that at least

some Jewish cemeteries will accepted cremains for interment. 170–71.

ARGUMENT

I. Under Public Health Law § 4201, the Court Should Defer to the Family’s Good-Faith Decision Absent Specific Evidence that the Decedent Opposed It.

Public Health Law § 4201(2)(a) establishes a priority list of persons who have the right to

control the disposition of a decedent’s remains. The priority list begins with the decedent’s

spouse or a person designated in a specific written instrument and proceeds in descending order

of presumed familiarity with the decedent. Steve, as Marty’s only sibling, has statutory priority

over all other existing persons. See § 4201(2)(a)(v). Petitioner appears to claim the right to

control disposition under § 4201(2)(a)(ix) as “a close friend . . . who is reasonably familiar with

7 According to the Pew Research Organization study on American Judaism — which Rabbi Kelsen referencedseveral times during his testimony as instructive regarding the three different “categories” of Judaism and trendswithin those categories (86, 106–07, 125) — Reform Judaism has more constituents than Orthodox Jews (10% ofAmerican Jews) and Conservative Jews (18%) combined. See Pew Research Center for Religion & Public Life, “APortrait of Jewish Americans,” http://www.pewforum.org/2013/10/01/jewish-american-beliefs-attitudes-culture-survey/. Those numbers likely overstate the number of Orthodox and Conservative Jews: “The survey finds thatapproximately one-quarter of people who were raised Orthodox have since become Conservative or Reform Jews,while 30% of those raised Conservative have become Reform Jews, and 28% of those raised Reform have left theranks of Jews by religion entirely. Much less switching is reported in the opposite direction.” Id. The study furtherstates that “observing religious law is not as central to most American Jews. Just 19% of the Jewish adults surveyedsay observing Jewish law (halakha) is essential to what being Jewish means to them. And in a separate but relatedquestion, most Jews say a person can be Jewish even if that person works on the Sabbath or does not believe inGod.” Id. In a 2015 follow-on study, the Pew Research Center found that 44% of all Jews rated religion as “not atall important” or “not too important” in their lives. See Pew Research Center for Religion & Public Life, “A Portraitof American Orthodox Jews,” http://www.pewforum.org/2015/08/26/a-portrait-of-american-orthodox-jews/pr_2015-08-26_orthodox-jews-16/.

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the decedent’s wishes, including the decedent’s religious or moral beliefs . . . .” Even if that

were so, the priority of a sibling over a friend is apparent from the face of the statute. Moreover,

not one iota of evidence has been submitted to establish this supposed ‘close friendship.’

Accordingly, for the reasons set forth in Section V, infra, Petitioner lacks standing to seek any

relief under the Public Health Law.

Lack of standing aside, Petitioner contends he believes it was Marty’s “intent . . . to have

a traditional Jewish burial” and, therefore, that Steve has violated § 4201(2)(c) of the Public

Health Law because Steve’s intended disposition, cremation, is contrary to Marty’s moral beliefs

and wishes. But § 4201(2)(c) does not create a free-for-all in which a court must determine a

decedent’s implied intentions at the request of any aggrieved party. Instead — reading

subsection (a) and subsection (c) together — if the highest-ranking person under § 4201(2)(a)

attempts to comply in good faith with § 4201(2)(c), that person’s decision is presumptively

permissible absent clear and convincing evidence that the decedent wished his or her remains to

be disposed in a contrary manner. Therefore, in the event of a dispute over whether a proposed

disposition of remains is “appropriate” under § 4201(2)(c), courts should ordinarily defer to the

good-faith decision of the highest-ranking person under § 4201(2)(a). Case law applying § 4201,

the statutory structure of § 4201, and the legislative history of § 4201 all confirm that the law

requires deference to the decision of the highest-ranking person under § 4201(2)(a).

A. Courts Will Not Override a Good-Faith Exercise of § 4201(2)(a) Rights AbsentDirect, Contrary Evidence of the Decedent’s Wishes.

Only a small number of courts have upheld challenges to a family member’s § 4201(2)(a)

rights on the ground that the decision is prohibited under § 4201(2)(c). The common theme in all

those cases is that the court found direct evidence of the decedent’s specific intent that his or her

remains be disposed of in a particular way or found other highly unusual circumstances showing

15

a specific opposition to the decision. Only in such circumstances will the court override the

decision of the highest-ranking person under § 4201(2)(a).

The decision in In re Grace D illustrates this approach. 31 Misc.3d 622 (Sup. Ct. Queens

Cnty. 2011). There, the court found that the decedent “left a clear indication as to his intended

wishes with regard to final resting place, as he purchased a plot in the Cemetery of the Holy

Rood, Westbury, New York on July 8, 1975, and maintains a privilege of burial therein.” Id. at

625. As corroborating evidence of the decedent’s specific intent, the court further found that the

decedent also purchased “permanent care” for his burial plot, “indicating his intention that such

plot eventually be utilized and perpetually tended.” Id. Faced with such direct evidence of the

decedent’s specific intent, the court held that it need not follow the decedent’s sister’s plan for

cremation and instead “must rely upon the manifestation of his wishes to be buried in the funeral

plot that he specifically purchased for his benefit several decades prior.” Id. By contrast, here

there is no direct evidence that Marty specifically preferred or opposed either cremation or burial

for himself, although he of course had every opportunity to do so. In the absence of such

evidence, the court cannot override the family’s decision under § 4201(2)(a).

Conversely, in Bochnik v. Gate of Heaven Cemetery, 32 Misc.3d 269, 272 (Sup. Ct.

Westchester Cnty. 2011), the court held that in the absence of evidence weighing clearly in favor

of one disposition of remains over another, the court would defer to the decision of the person

holding priority under § 4201(2)(a). In Bochnik, the person with the lower statutory priority

offered direct evidence of the decedent’s specific wishes — that the decedent “told her . . . that

he wanted to be laid to rest specifically in Gate of Heaven,” id. — while the parents also offered

direct, conflicting evidence that the decedent had “advised his brother” that he wanted to be laid

to rest elsewhere. Id. In the absence of unequivocal direct evidence of the decedent’s wishes,

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the court enforced the family’s higher-priority rights under § 4201(2)(a), finding that the person

with the inferior priority right “failed to adduce evidence sufficient to defeat the superior right

that petitioners have to control their son’s remains.” Id. Here, as in Bochnik, there is no

unequivocal, direct evidence that Marty opposed cremation, and therefore the court must defer to

the decision of the family under § 4201(2)(a).

The ruling in Maurer v. Thibeault, 20 Misc.3d 631 (Sup. Ct. Cortland Cnty. 2008) further

illustrates that courts will not override a family member’s § 4201(2)(a) rights except in unusual

circumstances. There, the decedent’s husband claimed to be the highest-ranking family member

under § 4201(2)(a), and he wished for his wife to be cremated and her ashes to be scattered on

their property. Id. at 631–32. The direct evidence, however, showed that the decedent stated to

her sister that she wanted to be “buried on [the] property with her dog” and that a will (though

unenforceable) from twelve years earlier also stated she would be “buried” on the property. Id.

at 634. In addition, the court found that the husband was “estranged” from the decedent and

therefore did not in fact hold priority under § 4201(2)(a). Id. at 635–37. Moreover, there were

highly unusual circumstances strongly suggesting the decedent did not want to be near her

husband at all: after a violent falling-out, the husband had very possibly murdered her. Id. at

631–32, 635–36. Under those extreme circumstances, it is no surprise the court declined to

honor the wishes of the estranged husband. No such facts exist here.

Lastly, the ruling in In re Solomon, 196 Misc.2d 599 (Sup. Ct. Nassau Cnty. 2003)

though decided before § 4201 was passed, further illustrates that, when determining a decedent’s

wishes, the court should rely on evidence that is direct and specific rather than speculative and

inferential. There, the decedent’s next of kin did not oppose the executor’s request for an

injunction against cremation. Id. at 600. The court found that “[o]f particular significance to the

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intent of the decedent regarding to the disposition of his remains” was a prior will that “referred

to the expense of a headstone.” Id. at 601. That evidence was dispositive: “Such reference leads

the Court to conclude that the decedent anticipated an interment upon his death.” Id. Here, by

contrast, it is undisputed that there is no direct evidence that Marty wished to be buried or had

any view whatsoever regarding his own cremation.

Although never an explicit holding, the common theme in the case law applying § 4201 is

that courts will defer to the decision of the person with priority under § 4201(2)(a) and will

enforce that person’s statutory rights unless the evidence the decedent would have opposed that

decision is direct and unequivocal. This Court should apply that test here. There is no direct

evidence that Marty was offended by cremation.

B. The Statutory Structure of § 4201 Shows that the Court Should Defer to theGood-Faith Decision of the Highest-Ranking Person Under § 4201(2)(a) Because,Without Deference to that Individual, the Priority List in § 4201(2)(a) Is MereSurplusage.

Because the statute in § 4201(2)(a) sets forth a priority ranking of decisionmakers, courts

may not ignore that statutory language in favor of the language in § 4201(2)(c) regarding the

decedent’s wishes. “It is an accepted rule that all parts of a statute are intended to be given effect

and that a statutory construction which renders one part meaningless should be avoided.”

Rocovich v. Consol. Edison Co., 78 N.Y.2d 509, 515 (1991). If the decedent’s “moral and

individual beliefs and wishes” are the only consideration in resolving disputes over a decedent’s

remains, then there would be no need to establish a comprehensive, ranked list of persons with

authority to make that same determination. In other words, any construction of § 4201 that gives

insufficient weight to the decision of the highest-ranking person under § 4201(2)(a), instead

engaging in a freewheeling inquiry under § 4201(2)(c), cannot stand. To give effect to both

§ 4201(2)(a) and § 4201(2)(c), the court should grant deference to Steve’s decision.

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C. The Legislative History of § 4201 Shows that the Purpose of the Statute is toEliminate or Resolve Disputes over a Decedent’s Remains, Which Also RequiresDeference to a Good-Faith Decision Made under § 4201(2)(a).

“It is fundamental that a court, in interpreting a statute, should attempt to effectuate the

intent of the Legislature.” Majewski v. Broadalbin-Perth Cent. Sch. Dist., 91 N.Y.2d 577, 583

(1998). Interpreting § 4201 to require deference to a good-faith decision under § 4201(2)(a)

fulfills the statute’s purposes, while not granting deference would frustrate them.

The purpose of § 4201 is to avoid disputes following a loved one’s death by establishing

a strict hierarchy of persons with a clear right to control the decedent’s remains. “This hierarchy

of individuals with the right to dispose of deceased persons’ remains was established in response

to the tragic events of September 11, 2001.” Mack v. Brown, 82 A.D.3d 133, 138 (2d Dep’t

2011) (citing Mem. of State of New York Department of Health Bill Jacket, L. 2005, ch. 768).

The “Justification” section of the Introducer’s Memorandum in Support of the Bill states that the

law’s previous lack of clarity “resulted in disputes over who has the right to dispose of a loved

one’s remains in the absence of a will”; to reduce disputes, the bill allows a person to formally

designate an individual to dispose of his or her remains and “also creates a rank-order list of

people” to make that determination “absent a written directive . . . .” Introducer’s Mem. In

Support, Bill Jacket, L. 2005, ch. 768.8

Deferring to the good-faith decisions of the highest-ranking person under § 4201(2)(a)

will discourage litigation over a decedent’s remains during a time of mourning. Conversely, an

unconstrained exploration of a decedent’s vague “beliefs and wishes” at the behest of anyone

8 Similarly, the letter in support of the statute from Richard Gottfried, Chair of the Health Committee, states that“the bill would establish a way for that person to be determined based on their relationship to the person (thedecedent’s spouse or domestic partner, any adult children, a parent, or an adult sibling)” and that “[t]he bill will helpprotect a person’s wishes, including religious beliefs, concerning disposition of remains, and help avoid or resolvedisputes.” Ltr. of Richard N. Gottfried, Bill Jacket, L. 2005, ch. 768. The statute reduces disputes while protectinga decedent’s religious beliefs under the natural presumption that the decedent’s closest living family member is inthe best position to have direct, personal knowledge of the decedent’s specific beliefs and wishes.

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who pays a filing fee will only increase the number and combativeness of such disputes. The

Second Department has specifically stated that one of the purposes of § 4201 is to avoid

interrogation of grieving family members during what should be a time of mourning. Mack, 82

A.D.3d at 141. There, the court held that funeral homes would be exempt from liability for

disposing of a decedent’s remains in good-faith reliance on instructions from a person claiming

priority under § 4201(2)(a). The Second Department reasoned that the legislature “could not

have intended for [such firms] to cross-examine grieving widows or widowers, children, parents,

siblings, or others to confirm the validity of the familial or personal status claimed under the

Public Health Law . . . .” Id.

That legislative intent applies with special force in cases such as this, as Petitioner’s

cross-examination of the decedent’s grieving brother demonstrated. Filled with ninety minutes

of shouting — and addressing such irrelevant “facts” as the number of times that Respondent,

who is sightless and walks with a cane, visited the decedent on Long Island instead of in

Manhattan fifteen years ago (253, 249, 251) — Petitioner’s conduct in this action is precisely the

type of excessive litigiousness the statute is designed to avoid.

Every year, 150,000 people die in New York State,9 and the Legislature did not intend

New York courts to hold a multi-day trial for each of those 150,000 people. And certainly not

when the decedent’s only family member has determined in good faith that his brother would not

want to be alone in a grave and would instead prefer to be with his family. The Legislature

enacted the statutory priority under § 4201(2)(a) for a reason. Absent unusual circumstances, the

decedent’s family decides.

9 https://www.health.ny.gov/statistics/vital_statistics/2013/table31a.htm

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II. Under the “Missing Witness Doctrine,” the Court Should Draw Adverse Inferencesfrom Petitioner’s Choice Not to Testify Because He Claims to Have DirectKnowledge of Marty’s Beliefs and Wishes Since 2007 Yet Withheld that Evidence.

Regardless of how Petitioner’s burden is characterized, Petitioner has wholly failed to

provide evidence of Marty’s beliefs and religious practices other than in 2004–2007, and there is

a drastic difference in the amount of evidence he proffered for 2004–2007 compared to the final

eight years of Marty’s life. Despite that glaring omission, and despite claiming to have

knowledge of Marty’s beliefs over the last ten years, Petitioner decided at the last minute that he

did not want to testify, nor did he call as witnesses any other Evergreen employees that

interacted with Marty every day from 2007 until his death.10 Under these circumstances, when

parties or their employees choose not to testify even though they have non-cumulative personal

knowledge of important facts, courts routinely draw an adverse inference against that party under

the “missing witness doctrine” established by the Court of Appeals for civil cases. Nassau Cnty.

Dep’t of Soc. Servs. on Behalf of Dante M. v. Denise J., 87 N.Y.2d 73, 79–80 (1995) (holding

that appellant’s failure to testify at a hearing should have resulted in an adverse inference that her

testimony would have been unfavorable to her case).

Under the missing witness doctrine, the court may “draw the strongest inference that the

opposing evidence permits against a witness who fails to testify in a civil proceeding.” Id. The

rule applies “where the missing witness is a party” and where the missing witness is under the

party’s “control,” as with an employee. Adam K. v. Iverson, 110 A.D.3d 168, 178–79 (2d Dep’t

2013). In Iverson, the court granted an adverse inference where a doctor who treated the

defendant did not testify even though he “had knowledge relevant to material issues.” Id. at 180.

The court found that his testimony would have been non-cumulative even though another doctor

who treated the defendant had already testified; the Second Department held that the trial court

10 The two testifying employees left Evergreen in 2006 and 2007. 25, 31.

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“properly drew an adverse inference” against the party for failing to call his employee, the

doctor, as a witness. Id. at 181–82.

The Second Department has applied this rule consistently, especially when the missing

witness is a party. In Katz v. Gangemi, 60 A.D.3d 819 (2d Dep’t 2009), a co-defendant claimed

to have “personal knowledge of essentially every material issue in the case” but chose not to

testify. The Second Department ruled that the trial court “properly drew the strongest inference

against the defendants that the opposing evidence permitted based on the failure of [the co-

defendant] to testify at trial.” Id. In Farrell v. Labarbera, 181 A.D.2d 715, 716 (2d Dep’t 1992),

the Second Department held that “the trial court also should have given a missing witness charge

with respect to the defendant’s failure to testify” because “[i]t is well settled that where one party

to an action, knowing the truth of a matter in controversy and having the evidence in his

possession, omits to speak, every inference against him warranted by the evidence may be

considered.” Id.; see also In re Clarissa S.P., 91 A.D.3d 785 (2d Dep’t 2012) (“Under the

circumstances, the mother’s failure to provide any testimony warrants ‘the strongest inference

against [her] that the opposing evidence in the record permits’.”).

The Court should apply this well-established rule here in light of the massive hole in

Petitioner’s evidence covering the last eight years of Marty’s life. Petitioner claims to have

personal knowledge of Marty’s beliefs “for the over 10 years [Marty] resided at Evergreen”

(Verified Petition ¶ 10), and his employees interacted with Marty daily; thus Petitioner was in a

position to provide non-cumulative evidence concerning Marty’s wishes during the crucial years

before his death. Meanwhile, Steve testified that Marty was not particularly religious and was

not guided by religious considerations in his decisions. 208–14. Because Petitioner chose not to

provide evidence covering 2007 to 2015, the Court should draw an adverse inference that

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Petitioner and his employees, if called to the stand to testify truthfully, would agree that Steve’s

testimony is accurate.

III. The Evidence Shows that Marty Wanted Steve to Take Care of His Remains, thatCremation Is Appropriate to Marty’s Wishes, and Marty’s Minimal ReligiousBehavior Does Not Rise to the Level of Proving any Opposition to Cremation.

Even without any deference to Steve’s decision, the evidence shows that his decision for

his brother’s remains was guided by Steve’s understanding of Marty wishes, and there is no

credible evidence that Marty would have been morally offended by Steve’s decision. Marty

stated he wanted his brother to control his remains, and Steve made a good-faith determination

based on their close relationship spanning 65 years that Marty would not have wanted to be

alone. Moreover, the only evidence of any religious behavior is that Marty went to services for a

relatively brief period ten years ago. But that does not mean Marty followed the tenets of the

strictest sects of Judaism — Orthodox and Conservative — especially in the absence of evidence

that Marty practiced Orthodox and Conservative Judaism in other basic ways.

First, the only direct evidence of Marty’s wishes for his remains is Plaintiff’s Exhibit 5.

That document states that Marty wanted his brother Steve to “tak[e] care” of his remains upon

his death. The simplest way to honor Marty’s wishes is to do as he instructed and leave the

decision to his only brother.

Second, Steve’s decision honors Marty’s wishes because the testimony is uncontroverted

that Marty loved his brother and hated being alone. They were close as children, playing

together constantly and with Marty being the “eyes” for his blind brother. 183–85. After their

mother died when they were young, they grew even closer. When they were adults, they lived

together and ate together, and if they were in different cities spoke by phone several times each

week. As they grew into late adulthood, they spoke on the phone every Sunday. Each time

Steve came to New York City from his home in California, twice a year, Steve visited Marty.

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Marty said repeatedly that he did not like to be alone. Steve’s plan would allow them to be

together until Steve passes, and then forever after.

Third, there is no direct evidence that Marty wished to be buried or that he morally

opposed cremation — such as evidence that he purchased a burial plot or headstone (210) — and

the evidence of Marty’s religious activity is too weak to support anything more than a guess

about what Marty might or might not have believed regarding burial and cremation. Marty

“never expressed religious views,” “never invoked the name of God,” did not discuss “souls and

afterlife” with any rabbi, and Marty “never spoke of any decisions as being influenced by

religious considerations.” 209, 25.

Aside from religious services from ten years ago, the testimony discussed a wide variety

of other religious practices that Jewish faith calls upon Jews to perform or that observant Jews

commonly perform — Marty did none of them:

Marty was not a member of any synagogue or temple. 209–10.

There is no evidence Marty fasted on Yom Kippur. 213.

There is no evidence Marty ever recited the daily morning Modeh Ani prayers ofresurrection. 210, 138.

There is no evidence Marty ever recited the nighttime Shema prayer that Jewishlaw requires Jews to recite before sleep. 210, 138.

Marty did not donate to Jewish charities or Jewish causes. 211.

Marty never had a Bar Mitzvah ceremony. 206, 143.

Marty never went to Israel. 211.

Marty did not wear a yarmulke. Pl. Ex. 6.

Marty did not wear a Star of David. 10/9/15 Tr. 210.

Marty ate non-kosher food his entire life and continued to eat non-kosher food,when he could, while living at Evergreen. 199, 204, 213–14.

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Marty did not own a prayer shawl. 212, 140.

Marty did not own tefillin, an instrument of Jewish prayer. 213, 141.

Marty did not know Hebrew or Yiddish. 212, 16.

Marty did not own or read any religious texts, including the Torah. 210.

Marty’s life is much different from the life of the decedent in In re Solomon, 196 Misc.2d

599. There, as discussed supra at 16–17, the court relied on direct evidence of the decedent’s

specific intent — a prior will, written in Hebrew, that “referred to the expense of a headstone.”

Id. at 601. To corroborate that direct evidence, the court found that the indirect evidence of the

decedent’s Jewish observance was overwhelming: the decedent “served in the Israeli Army

during the War for Independence” (whereas Marty never went to Israel), “said the nightly Jewish

prayer ‘Shema Yisroel’ before going to bed [and] regularly said the memorial prayers for his

dead parents” (whereas there is no evidence Marty ever said any such prayers), was Bar

Mitzvah’d (whereas Marty was not), “gave monies to Jewish charities in Israel and to his

synagogue” (whereas Marty did not), “wore a Star of David” (whereas there is no evidence that

Marty did), raised his friend’s son as his own and “made sure that the [boy] was Bar Mitzvahed

and that the decedent paid for that Bar Mitzvah ceremony and party” (whereas there is no

evidence Marty took any such interest in religious commitment), “maintained a kosher home”

(whereas Marty ate non-kosher food his whole life whenever he could), and “went to the

synagogue on high holidays” (whereas Marty attended only the horn-blowing and plants-holding

ceremonies for less than an hour). Id. Absent such consistent evidence of religious practice,

there is little basis to conclude that Marty actually believed in any particular tenet of Judaism.

In any event, Petitioner’s own expert testified that, on the specific issues of resurrection

and cremation, Jewish law is filled with disagreements and no clear answers. According to

25

definitive statements of Jewish law, Reform Judaism permits cremation (Def. Ex. C; Def. Ex. B

at ¶ 3(a)), and a physical corpse is not required for resurrection (168–69, 78, 119). Petitioner

asks this Court to hold nevertheless that Jewish law officially prohibits cremation. Not only is

that argument improper under the First Amendment, see infra IV, it contradicts the evidence.

Petitioner’s argument asks the Court to accept the premise that Marty was an observant

Jew and the premise that Jewish law prohibits cremation and then infer that Marty would have

opposed cremation. As discussed, each of those factual premises is inaccurate. But even if they

were true, the Court cannot infer merely by syllogism that Marty would have opposed cremation

solely by virtue of his association with the Jewish faith. The First Department, as affirmed by

the Court of Appeals, rejected that logic over a century ago. Cohen v. Congregation Shearith

Israel in City of New York, 114 A.D. 117 (1st Dep’t 1906) aff’d, 189 N.Y. 528 (1907). In Cohen,

a Jewish woman was buried in the Jewish cemetery belonging to the defendant congregation; in

accordance with her wish that her entire family be buried together, her surviving family sought to

have her remains disinterred and transferred to a nearby cemetery that had space for a large

family plot. Id. at 117–18. The cemetery objected on the ground that disinterment was

forbidden by Jewish law. Id. at 118. The court held in favor of the plaintiffs and granted the

disinterment. The court ruled that Jewish doctrine regarding disinterment was irrelevant absent

any evidence the decedent believed in that specific doctrine, id. at 118–19, and more importantly

the court could not infer that the decedent was opposed to disinterment merely because she was a

member of a Jewish congregation: “Nor had she subscribed to any rule of the defendant which

prevented such removal, unless that fact be inferred from her membership alone, which is

insufficient.” Id. at 120.11 That conclusion is just as true today as it was then. Marty’s mild

11 The Court of Appeals in 1949 cited Cohen with approval, stating that “[t]he quiet of the grave, the repose of thedead, are not lightly to be disturbed. Good and substantial reasons must be shown before disinterment is to be

26

association with Judaism is “insufficient” to permit any non-speculative inference about Marty’s

potential beliefs concerning the afterlife. It certainly does not prove how Marty would have

considered any such beliefs in light of his love for his brother and his desire not to be alone. In

short, Petitioner’s evidence is insufficient and asks the Court to speculate.

Not only does Petitioner’s argument require extreme interpretations of the evidence, a

ruling for Petitioner would have drastic implications. Any holding that Jewish law strictly and

universally prohibits cremation, or that any particular level of Jewish observance means that a

person “would have” preferred burial, would be a sweeping ruling applying to millions of Jews.

As a matter of law, every one of the nearly 2 million Jewish persons in New York State that

attends holiday services would be deemed to prefer burial. The logic would also apply to any of

the millions of Catholics or other Christians who go to church on Sunday, read from their

missalettes, and occasionally talk to their pastor about sermons.12 Petitioner’s view of § 4201 is

that if a decedent was Jewish and did not make his or her wishes explicit, then it does not matter

what the decedent actually wanted or believed, it does not matter that there are “great debates”

among Jewish authorities about what resurrection means and whether cremation is permitted, it

does not matter that cremation among Jews is common, and it does not matter what the

decedent’s family says. If a Jewish person goes to services, then the State of New York will

order that person to be buried. That is not the law.

sanctioned” and that “looming large among the factors to be weighed are the wishes of the decedent himself,” andone of those factors in turn might be “[i]f the deceased had been a member of a faith which forbade disinterment . . ..” Currier v. Woodlawn Cemetery, 300 N.Y. 162, 164 (1949) (citing Cohen). Cohen and Currier are consistent.Currier establishes a default presumption against disinterment for all persons, not merely religious persons, out of arespect for the “quiet of the grave” and “repose of the dead.” Religious adherence might support that view“dependent upon [each case’s] own peculiar facts and circumstances,” id., but religious membership without more isinsufficient. Id. (citing Cohen).12 Catholic doctrine permits but discourages cremation: “The Church earnestly recommends that the pious custom ofburying the bodies of the deceased be observed; nevertheless, the Church does not prohibit cremation unless it waschosen for reasons contrary to Christian doctrine.” Code of Canon Law 1176 § 3, available athttp://www.vatican.va/archive/ENG1104/__P4A.HTM.

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IV. As Applied Here, Public Health Law § 4201 Is Unconstitutional Because It RequiresCourts to Interpret, Define, and Apply Religious Doctrine, ImpermissiblyEntangling the Court in Matters of Religion.

Under bedrock First Amendment principles, civil courts cannot adjudicate disputes that

turn on interpretation and application of religious doctrine. E.g., Presbyterian Church in U.S. v.

Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 449-50 (1969);

Congregation Yetev Lev D’Satmar, Inc. v. Kahana, 9 N.Y.3d 282, 286 (2007); Wende C. v.

United Methodist Church, 4 N.Y.3d 293, 299 (2005); Park Slope Jewish Ctr. v. Congregation

B’nai Jacob, 90 N.Y.2d 517 (1997); Avitzur v. Avitzur, 58 N.Y.2d 108, 114 (1983) (stating that

courts “may adopt any approach to resolving religious disputes which does not entail

consideration of doctrinal matters . . . [and] without reference to any religious principle”);

Mandel v. Silber, 304 A.D.2d 538 (2d Dep’t 2003) (“Resolution of the parties’ dispute would

necessarily involve an impermissible inquiry into religious doctrine and a determination as to

whether the plaintiff violated religious law.”); Sam v. Church of St. Mark, 293 A.D.2d 663, 664

(2d Dep’t 2002). Courts may not take sides in disputed matters of religion “because there is

substantial danger that the state will become entangled in essentially religious controversies or

intervene on behalf of groups espousing particular doctrines or beliefs.” Congregation Yetev Lev

D’Satmar, 9 N.Y.3d at 286.

Petitioner’s case violates this fundamental rule. There is no direct evidence that Marty

opposed cremation. Instead, Petitioner asks the Court to accept the premise that cremation is

supposedly a “grave violation of Jewish law and tradition” (Verified Petition ¶ 13), and then

infer that Marty as a supposedly observant Jew probably would have followed Jewish law. That

argument is doubly impermissible. First, accepting Petitioner’s premise would run afoul of the

constitutional rule that state law may “not require a State court to determine whether a particular

criterion is in violation of religious law.” Park Slope Jewish Ctr., 90 N.Y.2d at 522. Second,

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Petitioner’s argument that the Court should infer an intent to be buried runs afoul of the Court of

Appeals’ admonishment that civil courts must take “special care . . . not to rely on religious

precepts in determining whether [evidence] indicate[s] that the parties have intended [a particular

result].” Id. (final alteration in original). Granting the relief Petitioner seeks “would require the

civil courts to engage in the forbidden process of interpreting and weighing church doctrine.”

Presbyterian Church, 393 U.S. at 451.

The United States Supreme Court’s ruling in Presbyterian Church, and the New York

Court of Appeals’ ruling in Congregation Yetev Lev D’Satmar illustrate why granting the

Petition would require this Court to wade improperly into disputed matters of religious doctrine.

In Presbyterian Church, the Georgia state court considered whether a church forfeited certain

property held in trust on the ground that the church had taken actions that “constitute such a

‘substantial departure’ from the tenets of faith and practice existing at the time of the local

churches’ affiliation that the trust in favor of the general church must be declared to have

terminated.” 393 U.S. at 450. That rule of Georgia law required the court to determine “whether

the challenged actions of the general church depart substantially from prior doctrine” — which

required the court to “make its own interpretation of the meaning of church doctrines” — and

then “assess[] the relative significance to the religion of the tenets from which departure was

found.” Id. The Court held that the entire line of inquiry was off-limits: “[The Georgia state law

in question] requires the civil court to determine matters at the very core of a religion — the

interpretation of particular church doctrines and the importance of those doctrines to the religion.

Plainly, the First Amendment forbids civil courts from playing such a role.” Id. Here, Petitioner

is expressly asking this Court to conclude that (a) cremation departs from the tenets of Jewish

faith because cremation precludes a dead person’s soul from reuniting with a physical corpse in

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the afterlife and (b) the supposed departure is so substantial that the Court should assume the

decedent could not possibly have been comfortable with cremation. Both of those points,

however, are disputed. Def. Ex. C; Def. Ex. B at ¶ 3(a); 10/8/15 Tr. 168–69. Even Petitioner’s

expert testified that there is a “great debate” within Judaism over the concept of resurrection. 78,

119. The Court cannot resolve the dispute without improperly taking sides in a religious debate:

the Court would need to rule as a matter of New York law that Jewish doctrine requires a

physical corpse in order for resurrection of the soul to occur and that Jewish doctrine rejects the

view that resurrection of the soul can occur even in the absence of a physical corpse. Absent any

evidence that Marty believed in that specific doctrinal principle, the Court would need to further

conclude that Marty necessarily believed in it because it is fundamental to Judaism. That is

exactly what the First Amendment prohibits.

Similarly, the Court of Appeals held in Congregation Yetev Lev D’Satmar that it could

not adjudicate a congregation membership dispute requiring the court to inquire into, among

other things, “whether a congregant follows the ‘ways of the Torah,’” 9 N.Y.3d at 288. Yet that

is exactly what Petitioner asks the Court to do here by inferring from certain of Marty’s

behaviors that Marty was a follower of the Jewish faith in ways that indisputably point to a

rejection of cremation on religious grounds. The First Amendment bars inquiries along those

lines because they “require interpretation of ecclesiastical doctrine.” Id. at 286.

Petitioner’s argument also improperly requires the Court to resolve an intra-Judaism

dispute among Orthodox, Conservative, and Reform Jews over whether the Jewish religion does

or does not prohibit cremation. Petitioner therefore asks the Court to “effectively align[] itself

with one side of an internal debate within Judaism. This it may not do.” Commack Self-Serv.

Kosher Meats, Inc. v Weiss, 294 F.3d 415, 426 (2d Cir. 2002) (striking down New York law that

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defined kosher food as food in compliance with Orthodox Judaism requirements because it

endorsed Orthodox kosher rules over the kosher rules from other branches of Judaism).

Specifically, although Petitioner contends cremation violates Orthodox and Conservative Jewish

law, Petitioner’s own expert conceded that authoritative statements of Reform Jewish doctrine

hold that cremation is permitted and is not a sin, and he also conceded that Reform Judaism does

not require a physical corpse for resurrection. 10/9/15 Tr. 165, 167, 168–69. Accepting

Petitioner’s argument therefore requires the Court to resolve an intra-religion dispute by making

findings of fact regarding the true content of Jewish religious doctrine and thereby enshrining the

Orthodox/Conservative views into New York law. That is exactly what the federal Constitution

forbids because it requires courts to “select[] the views of one branch of Judaism, thereby placing

its imprimatur on the religious views of the one to the exclusion of others.” 294 F.3d at 430.

The Court must reject Petitioner’s invitation “to inquire into the significance of words and

practices to different religious faiths, and in varying circumstances by the same faith. Such

inquiries would tend inevitably to entangle the State with religion in a manner forbidden by our

cases.” Widmar v. Vincent, 454 U.S. 263, 270 n.6 (1981).

Accordingly, Public Health Law § 4201(2)(c) is unconstitutional as applied because,

given the absence of direct evidence of Marty’s specific beliefs regarding burial, Petitioner’s

argument requires the Court to rule as a matter of law that Jewish religious doctrine for all Jews

prohibits cremation.13

Therefore the Court must reject Petitioner’s request to wade into a dispute over the

definition and application of Jewish law. The Court of Appeals has stated that a statute “should

13 If the Court concludes it is necessary to reach the issue, Respondent would also argue that § 4201(2)(c) isunconstitutional on its face because it invites civil courts to consider a decedent’s religious beliefs but withoutexplicitly prohibiting courts from improperly inferring those beliefs from the decedent’s possible identification witha particular religion.

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be construed in such a manner as to uphold its constitutionality.” Eaton v. New York City

Conciliation & Appeals Bd., 56 N.Y.2d 340, 346 (1982). This canon of constitutional avoidance

requires that, in order to avoid the above dangers, any challenge under § 4201(2)(c) must be

limited to direct evidence of the decedent’s specific wishes regarding his remains, without

inferring any such wishes based on a supposed association with any religion. Here, because the

only direct evidence is that Marty wanted Steve to decide, and there is no direct evidence that

Marty would have opposed being with his brother, the petition should be dismissed.

V. Petitioner Lacks Standing Because He Does Not Fall Into any Category under§ 4201(2)(a), Suffered No Injury in Fact, and Is Alleging a Generalized Grievance.

“Under the common law, there is little doubt that a ‘court has no inherent power to right

a wrong unless thereby the civil, property or personal rights of the plaintiff in the action or the

petitioner in the proceeding are affected.’” Soc’y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77

N.Y.2d 761, 772 (1991) (quoting Schieffelin v. Komfort, 212 N.Y. 520, 530 (1914)). “For

standing to sue, petitioners must show that they have suffered an injury in fact, distinct from that

of the general public.” Transactive Corp. v. New York State Dep’t of Soc. Servs., 92 N.Y.2d 579,

587 (1998). “That an issue may be one of ‘vital public concern’ does not entitle a party to

standing.” Soc’y of Plastics Indus., 77 N.Y.2d at 769. Petitioner cannot meet the fundamental

requirement of showing that it suffered an injury to any legally cognizable interest under § 4201.

First, Petitioner — who chose not to testify — cannot establish that he suffered any injury

in fact. As merely a member of the general public, Petitioner has no personal and concrete

interest in the disposition of Marty’s remains. Nowhere does § 4201 establish a legally protected

interest or grant a private right of action to any member of the general public who disagrees with

the decision of the highest-ranking person under § 4201(2)(a).

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Second, the only persons with standing to challenge the decision of the highest-ranking

person under § 4201(2)(a) are persons with equal or lower priority under the statute. “Where as

here, there is no evidence that the decedent left any instructions with respect to the disposition of

his remains, the only people who have standing to seek possession of the remains for

‘preservation and burial’ are his surviving next of kin.” Caseres v. Ferrer, 6 A.D.3d 433, 433–

34 (2d Dep’t 2004) (finding no standing). In Caseres, the Second Department interpreted RCNY

§ 205.01(d) — which sets forth a nearly identical ranking of persons entitled to give instructions

regarding the disposal of a decedent’s remains — to bar a challenge by any person not

specifically listed in the statute. Id. The same is true here, and Petitioner lacks standing under

§ 4201. See Shepherd v. Whitestar Devel. Corp., 113 A.D.3d 1078 (4th Dep’t 2014) (stating that

“there is no question that plaintiff has standing” because she was one of the family members

listed in § 4201(2)(a)).

Third, Petitioner does not fit into any of the categories enumerated in § 4201(2)(a).

There is no evidence that Petitioner qualifies as Marty’s “close friend” under § 4201(2)(a)(ix).

To begin, the “close friend” provision applies only “when no one higher on this list is reasonably

available, willing, or competent to act”, whereas Steve testified that he “would have done exactly

what [Marty] wanted.” 10/9/15 Tr. 219; see Maurier, 20 Misc.3d at 633 (stating “competent”

means able and willing to carry out the decedent’s wishes to the extent those wishes are known).

In any event, Petitioner offered no evidence that he and Marty were close friends. There

is no evidence that Petitioner even knew Marty, much less had any personal knowledge about

Marty’s deeply personal beliefs and wishes. Although the verified petition alleges in a

conclusory manner that “Petitioner has been familiar with the personal and religious preferences

of the decedent while he was still residing at King David and for the over 10 years she [sic]

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resided at Evergreen Court” (¶ 10), a verified petition of course is not evidence — it is a hearsay

declaration, a party’s out-of-court statement that was not subject to cross-examination. See

CPLR 105(u); Beckford v. Thomas, 14 Misc. 3d 1205(A) (Civ. Ct. 2006).

There is also no evidence that Petitioner qualifies as “any other person acting on behalf of

the decedent” under § 4201(2)(a)(x) because any such person must first “execute[] a written

statement pursuant to subdivision seven of” § 4201. See § 4201(2)(a)(x). Anyone purporting to

act as the decedent’s “close friend” must execute that statement as well. § 4201(2)(a)(ix). The

failure to submit that form with all the required content is fatal. See Gerardi v. Paul W. Harris

Funeral Home Inc., 48 Misc.3d 200, 205 (Sup. Ct. Monroe Cnty. 2014) (“The Defendant fails to

submit any evidence that there is a written statement as required by the statute from any person

other than the [family member with highest priority].”).

The written statement described in § 4201(7) requires the person to certify “that he or she

has no knowledge that the decedent executed a written instrument pursuant to this section

[formally authorizing a specific person to control one’s remains] or a will containing directions

for the disposition of his or her remains . . . .” See § 4201(7)(b). There is no dispute that

Petitioner failed to submit any such written statement. That requirement is not a mere formality

that may be discarded: as Marty’s alleged landlord — and thus the last person with custody over

Marty’s papers and personal effects — Petitioner’s failure to make that certification leaves a key

gap in the documentary evidence of Marty’s intent. That failure dooms Petitioner’s attempt to

insert himself into this action and usurp Respondent’s statutory rights under § 4201(2)(a).

Accordingly, Petitioner suffered no cognizable injury and thus lacks standing.

CONCLUSION

For the foregoing reasons, Respondent respectfully submits that Petitioner’s motion

should be denied, the petition be dismissed, and judgment entered in favor of Respondent.

DATED: New York, New YorkOctober 22, 2015

Respectfully submitted,

HOLWELL SHUSTER & GOLDBERG LLP

Richard J. Holw^Brendon DeMay

125 Broad Street, 39th FloorNew York, NY 10004(646)837-5151

Attorneys for Respondent Steven Mendelsohn

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