11/18/15: Ivy Affirmation in Support of motion for leave to appeal to court of appeals and for emergency stay

7/24/2019 11/18/15: Ivy Affirmation in Support of motion for leave to appeal to court of appeals and for emergency stay

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COURT OF APPEALS

STATE OF NEW YORK

In the Matter of PHILIP SCH ONBER GER

CONCERNING THE INGROUND BURIAL OF THE

REMAINS OF MARTIN MENDELSOHN,

Petitioner-Appellant,

AFFIRMATION IN

SUPPORT OF

MOTION FOR

LEAVE TO APPEAL

TO THE COURT OF

APPEALS AND FOR

AN EMERGENCY

STAY

HELLMAN MEMO RIAL CHAPELS

and STEVEN MEND ELSOHN,

Rockland County

Index No. 1612/2015

Respondents,

Appellate D ivision

Docket N o. 2015-10580

SVETLANA K. IVY states the following under penalties of perjury:

1.

I am a member of the law firm of Harris Beach PLLC, appellate

counsel for Petitioner-Appellant Philip Schonberger ( Petitioner ). I am familiar

with the facts herein based on m y review of the record in this case.

2.

I submit this affirmation in support of Petitioner's motion, pursuant to

CPLR 5602(a), Rule 500.22 and the doctrine of irreparable injury, which allows

this Court to review an otherwise nonfinal order where the order will cause

irreparable and permanent injury absent immediate review, for leave to appeal to

the Court of Appeals from the Order of the Appellate Division, Second

Department, entered on N ovember N ovember 13, 2015, and for an em ergency stay


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to prevent the cremation of the rema ins of Mr. Me ndelsohn pend ing determination

of this motion or P etitioner's appeal.

Stateme nt of Procedural H istory and Jurisdiction

3. Petitioner Schonberger commenced this, action in Rockland County

Suprem e Court to enjoin the crema tion of the remains of Ma rtin Men delsohn, who

died on September 15, 2015. Petitioner is the owner of the licensed adult home

where the D eceden t resided for years prior to his death, during wh ich residency he

participated in a variety of Jewish religious activities and celebrations. Mr.

Schonbe rger asserted that the Deceden t's rema ins should be buried, consistent with

the tenets of the Decedent's Jewish faith and with the Decedent's religious beliefs,

practices and wishes, as exhibited over the course of a decade prior to his death.

The Decedent's brother, Stephen Meldelsohn, opposed the Petition

and insisted on cremation.

5. On October 28, the trial court (Hon. Victor J. Alfieri, Jr.) dismissed

the Petition and orde red that Stephen M endelsohn sha ll have autho rity to direct the

manner in which the body of the Decedent's body shall be disposed. The Order of

the Suprem e Court, dated October 28, 2015, is attached hereto as Exhibit A.

6.

Mr. Schonberger appealed to the Appellate Division, Second

Department and moved for a stay of the enforcement of the Supreme Court Order

pending hearing and determination of the appeal. The Second Department denied


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the motion for a stay on Novem ber 13, 2015, which order was served on Pe titioner

with a Notice of Entry on November 16, 2015. The Second Department's Order,

with the Notice of Entry, is attached hereto as E xhibit B. The appeal on the m erits

remains pending.

7. Mr. Schonberger now moves for this Court's review of the Second

Department's order and asks this Court for an emergency stay of the cremation so

the status quo can be preserved pending resolution of his appeal.

8.

Although the Second Department's Order is not final due to the

pendency of the appeal, this Court has jurisdiction to review non-final orders in

certain cases, such as this one, where an irreparable injury will occur absent a stay.

According to this Court's Civil Jurisdiction and Practice Outline, available at

www.nycourts.gov/ctapps/forms/civiloutline.pdf,

[t]he doctrine of irreparable

injury will apply to make appealable an otherwise nonfinal order in those rare

instances where the order sought to be appealed from directs an irrevocable change

in position that will cause immediate irreparable injury (citing

Regional Gravel

Prods. v. Stanton, Iv denied in part, 71

NY2d 949 [1988];

Matter of Christopher

T., lv granted, 63 NY2d 601 [1984]; Gardstein v Kemp Beatley, Inc., mot to

dismiss appeal denied,

61 NY2d 900 [1984]). That is unquestionably the case

here.


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9.

Mr. Schon berger subm its that this Court has jurisdiction to review this

motion because unless the Court grants a stay and an order that maintains the

preservation of Mr. Mendelsohn's remains, the Decedent's body will be cremated.

Not only would cremation of the body result in an irreparable injury, but it would

also moot P etitioner's pending appeal in which M r. Schonberger w ill argue that the

Record in the trial court supports a reversal of the trial court's order.

Factual Back r

ound

10.

For approximately ten years prior to his death, the Decedent lived in

the Evergreen Court Home ( Evergreen ), an adult home that only serves Kosher

food and thus appeals primarily to the people of the Jew ish faith.

11.

Upon moving to Evergreen, the Decedent filled out DSS Form 2949,

which is a Personal Data Sheet and is attached hereto as Exhibit C. On that form,

the Decedent indicated his Religion as Jewish. In the box for Burial

Instructions, the form states FAMILY TAKING CARE. This document was

Plaintiff's Exhibit 5 during the evidentiary hearing at the trial court and was

Exhibit B to the affirmation of Brendon Demay in opposition to Petitioner's

Motion for a Stay Pending Appeal.

12. Petitioner's motion to the Appellate Division, made by Order to Show

Cause on October 29, 2015, is attached hereto as Exhibit D. Respondent Stephen

Me ndelsohn's opposition papers are attached hereto as Ex hibit E.

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13.

In addition to the evidence in the Personal Data Sheet, which

demonstrates that the Decedent was of the Jewish faith and contemplated a

burial, the record reflects that the Decede nt observed and followed the practices

and traditions of his Jewish faith. He paid an ad ditional fee forRosh H ashana/Y om

Kippur kosh er dinners that were officiated by a C antor with a special fast breaking

dinner. He also paid additionally for Passover Seders along with special meals for

eight days prepared in accordance with Passover dietary laws.

14. The record a lso reflects that the Decede nt for many yea rs participated

regularly in religious activities at E vergreen, including attending readings from the

Torah and the Prayer. Book. He was an enthusiastic volunteer at religious

ceremonies, he lit Menorah candles, attended seder and participated in readings

from the Haggadah during religious holidays.

15.

At the hearing there was uncontradicted testimony that the Decedent

attended Friday and Saturday services at Evergreen and was placed at the adult

hom e with a very religious Jewish individual as his room mate because they had

something in comm on. (T. at 23).

16.

The details of additional evidence of the Decedent's observance of

Judaism is summarized in Petitioner's submission to the Appellate Division.

See

Exhibit D.

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Concise Statement of Question Presented

17.

The question presented in this case is whether the Appellate Division

properly denied Petitioner's motion for a stay pending appe al where, absent a stay,

a Decedent's body will be cremated, contrary to the well-established practices of

his religious faith and his wishes, as exhibited over the course of a decade prior to

his death. Pursuant to the tenets of the Decedement's faith, a cremation is strictly

prohibited. Mr. Schonberger therefore submits that a stay should have been

granted to preserve the Decedent's remains and avoid irreparable injury pending

determination of the appeal.

Reasons W hy Question Presented M erits Review and W hy an O rder Staying

Enforcement of the Orders Below and the Crem ation Should Be Issued

18.

The Question Presented merits review because the undelying case

raises a legal issues of substantial importance to con gregants of the Jew ish faith as

to whether their families can contravene the burial practice mandated by their

religious faith, and a stay is ne cessary to prev ent irreparable injury and ensure that

the merits of the underlying case are reviewed by the appellate courts.

19.

The applicable law here is Public Health Law 4201(2)(c), which

states:

The person in control of disposition, pursuant to this

section, shall faithfully carry out the direction of the

decedent to the extent lawful and practicable, including

consideration of the financial capacity of the decedent's

estate and other resources made available for disposition

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of the remains.

he person in control of disposition

shall also dispose of the decedent in a manner

appropriate to the moral and individual beliefs and

wishes of the decedent

provided that such beliefs and

wishes do not conflict with the directions of the decedent.

The person in control of disposition may seek to recover

any costs related to the disposition from the fiduciary of

the decedent's estate in accordance with section eighteen

hundred eleven of the surrogate's court procedure act.

Public Health Law 4201(2)(c) [emphasis added].

20.

Thus, although the Public Health Law permits the Decedent's next of

kind, Defendant-Respondent Stephen Mendelsohn (a California resident), to

determine the means and manner in which the Decedent's remains are to be

handled, it explicitly requires that the manner of disposal or preservation of the

remains be in a man ner appropriate to the moral and individual beliefs and wishes

of the decedent. Here, there is substantial evidence in the record to warrant a

finding by the A ppellate Division that burial - not cremation - is approp riate to the

mo ral and individual beliefs and wishes of the Dece dent based on h is adherence to

the tenets of his faith.

21.

Furthermore, a burial - not cremation - is consistent with the

Decedent's direction in DSS Form 2949. Although the trial court focused on the

fact that the form states FAMILY TAKING CARE and viewed the document as

supporting Respondent Steven Mendelsohn's position that the Decedent left the

decision up to his brother, the document actually supports Mr. Schonberger's

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argument. The notation FAMILY TAKING CARE is in a box on the form

labeled

Burial

Instructions. See Exhibit C (emphasis added). In other words, the

Dec edent indicated that his family would take care o f a

burial

not funeral or other

disposition generally. Thus, the relevance of the document is that it demonstrates

that the Decedent contemplated

a burial

and the doc ume nt is inconsistent with the

trial court's conclusion that it supports allowing the Decedent's brother to order

cremation.

22. A stay o f the cremation is, therefore, necessary to allow the Ap pellate

Division to review and render a decision on the proper application of the statute

and the factors to consider in determining how to assess a decedent's wishes.

23.

The court to which an appeal is taken ... may stay all proceedings to

enforce the judgment or order appealed from pending an appeal or determination

on a motion for permission to appeal. CPLR 5519(c). New York courts routinely

hold that the decision whether to grant a stay pending appeal is within the

discretion of the court.

S ee e.g. Grisi v S hainsw it

119 AD2d 418 [lst Dept 1986];

In re Riv ette

283 AD 851 [4th Dept 1954];

Hof fstadt v Copeland

230 AD 85 [ l st

Dept 1930]. [T]he court's discretion is the guide in considering whether to grant

a stay, and the Court can consider any relevant factor, including the presumptive

merits of the appeal and any exigency or hardship confronting any party.

See


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(Richard C. Reilly, Practice Commentaries, McKinney's Cons Laws of NY, Book

713, CPLR C5919:4).

24.

Exigency and hardship are the critical factors here. If the cremation

goes forward, it obviously can not be reversed, and the appeal w ould be m oot since

burial of the body would not be po ssible. Furthermore, any crem ation destroys the

Decedent's ability to enter an afterlife consistent with the fundamental canons of

the D ecedent's religious beliefs.

25.

Given the volume of evidence in the record demonstrating the

Decedent's observance of the Jewish faith, practices and traditions, there is

certainly a likelihood that the Appellate Division could find that evidence

persuasive and rev erse the trial court's order.

26.

Finally, the equities favor a stay under the circumstances. The

Decedent's body already has been preserved by the funeral home for some time,

and can remain so until this Court reviews this matter. Absent a stay, on the other

hand, the Decedent's remains will be sent to a crematorium, and if the Appellate

Division determines that the Decedent's directions and wishes require a burial, the

decision would be incapable of implementation.

27.

For all the foregoing reasons, Petitioner requests that this Court issue

an order granting him leave to appeal the November 13, 2015 Order of the

Appe llate Division, Second D epartmen t, staying the enforcement of that Order and

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the cremation of Martin Mendelsohn's remains pending the etermination of this

motion or the appeal, and granting such other further relief as this Court may deem

just and proper.

Dated: Pittsford

New York

Documents

11/18/15: Ivy Affirmation in Support of motion for leave to appeal to court of appeals and for emergency stay