NYS FAQ & Law

The people of this state have a vital interest in the establishment, maintenance and

preservation of public burial grounds and the proper operation of the corporations

which own and manage the same. This article is determined an exercise of the

police powers of this state to protect the well-being of our citizens, to promote

the public welfare and to prevent cemeteries from falling into disrepair and

dilapidation and becoming a burden upon the community, and in furtherance of

the public policy of this state that cemeteries shall be conducted on a non-profit

basis for the mutual benefit of plot owners therein.

§ 1502. Definitions. As used in this article:

(a) The term “cemetery corporation” means any corporation formed under a

general or special law for the disposal or burial of deceased human beings, by

cremation or in a grave, mausoleum, vault, columbarium or other receptacle but

does not include a family cemetery corporation or a private cemetery corporation.

(b) The term “lot owner” or “owner of a lot” means any person having a lawful

title to the use of a niche, crypt, lot, plot or part thereof, in a cemetery, mausoleum

or columbarium.

(c) The term “cemetery board” means the cemetery board in the division of

cemeteries in the department of state.

(d) A public mausoleum, crematory or columbarium shall be included

within the term “cemetery”.

(e) The sale of a lot, plot or part thereof, grave, niche or crypt shall mean the sale

of the right of use thereof for burial purposes.

(f) The term “monuments” means a memorial erected in a cemetery on a lot, plot

or part thereof, except private mausoleums.

(g) The term “interment” means the permanent disposition of human remains by

inurnment, entombment or ground burial.

(h) The term “cremation” means the technical process, using heat and flame, that

reduces human remains to ashes and other residue. “Cremation” shall include the

processing, and may include the pulverization, of such ashes and other residue.

(i) The term “cremains” means ashes and other residue recovered after the

completion of cremation, which may include residue of foreign matter that may

have been cremated with the human remains.

(j) The term “alternative container” or “external wrappings” means a nonmetal

receptacle or enclosure, without ornamentation or a fixed interior lining, which is

designed for the encasement of human remains and which is made of cardboard,

pressed wood, composite materials (with or without an outside covering), or

pouches of canvas or other material.

(k) The term “casket” means a rigid container that is designed for the encasement

of human remains and customarily ornamented and lined with fabric.

66New York State Association of Cemeteries
(l) The term “crematory” means a facility or portion of a building in which the
remains of deceased human beings are processed by cremation.
(m) The term “holding facility” or “temporary storage facility” means an area that
(i) is designated for the retention of human remains prior to cremation;
(ii) complies with all applicable public health laws,
(iii) preserves the health and safety of the crematory personnel; and
(iv) is secure from access by anyone other than authorized persons. The interior
of such facility shall not be visible from any area accessible to the general public.
(n) The term “cremation permit” means the burial and removal permit required
pursuant to section forty-one hundred forty-five of the public health law that is
annotated for disposition of the remains of a deceased human being by cremation.
(o) The term “cremation authorization” means the crematory form authorizing a
cremation which is signed by the next of kin or authorizing agent. This crema-
tory form must be a separate document and cannot be a part of another form
or document.
(p) The term “authorizing agent” shall mean the person with the right to control
the disposition of the decedent pursuant to section forty-two hundred one of
the public health law.
(q) The term “pet cremated remains” means ashes and/or other residue recovered
after the completion of cremation of any domestic animal that has been adapted
or tamed to live in intimate association with people where such cremation has
occurred at a pet crematorium as defined in section seven hundred fifty-a of the
general business law.
(r) The term “nonsectarian burial society” means a corporation or unincorpo-
rated association or society having among its activities or its former activities
the provision of burial benefits for its members and not supervised or controlled
by a religious corporation.
(s) The term “religious burial society” means a corporation or unincorporated
association or society having among its activities or its former activities the
provision of burial benefits for its members and supervised or controlled by a
religious corporation

§ 1505. Special requirements of incorporation:

(a) Certificate of incorporation; additional contents. In addition to the require-

ments of section four hundred two (Certificate of incorporation; contents), the

certificate of incorporation of a cemetery corporation shall be filed in the office

of the clerk of each county in which any part of the cemetery is proposed to be,

or is, situated, and shall state:

(1) each city, village or town, and county, in which any part of the cemetery is or

is proposed to be situated; and

(2) the time of the annual meeting.

(b) Cemetery board endorsement. Every certificate of incorporation of a cemetery

corporation, except those within the exclusionary provisions of section fifteen

hundred three, shall have endorsed thereon or annexed thereto the approval of

the cemetery board as required in subdivision (e) of section four hundred four

of this chapter

(c) Type of corporation. A cemetery corporation is a charitable corporation

under this chapter.

(d) Lot owners in unincorporated cemeteries may incorporate.

(1) Not less than three owners of lots in an unincorporated cemetery may cause a

notice to be posted in at least six conspicuous places in the city, town or village in

which such cemetery is located, and to be published once in each week for three

successive weeks in a newspaper, if any, published in such municipality, stating

that at a time and place specified, a meeting of the lot owners will be held to

determine whether such cemetery shall be incorporated, pursuant to this chapter.

(2) The meeting shall be held at a convenient place in the city, town or village

in which the cemetery is located, not less that twenty-five nor more than thirty

days after the first posting and publication of the notice of the meeting. At such

meeting every lot owner shall be entitled to one vote in person or by proxy for

each lot owned by him. The persons entitled to vote at such meeting shall select

a chairman and secretary, and determine by ballot whether or not the lot owners

shall incorporate pursuant to this chapter.

(3) If a majority of the ballots are in favor of incorporation, the persons entitled to

vote at such meeting shall select three lot owners to incorporate and the provi-

sions of this chapter shall be applicable, except that three persons may incorpo-

rate, and the corporation shall not be required to have more than three directors.

Upon such incorporation, the lot owners shall be members of the corporation,

and it shall be vested with the title to such cemetery and the personal property

appertaining thereto. If the title to the cemetery has prior to such incorporation

vested in the town, pursuant to section two hundred and ninety-one of the town

law of section one of title seven of chapter eleven of part one of the revised

statute, the supervisor of such town shall on request of the directors of such

corporation, execute to it a deed of such cemetery lands releasing all interest

of the town therein, and thereafter the title shall be vested in the corporation.

§ 1507. Trust funds:

(a) Maintenance and preservation; permanent maintenance fund; current main-

tenance fund. Subject to rules and regulations of the cemetery board:

(1) Every cemetery corporation shall maintain and preserve the cemetery, includ-

ing all lots, plots and parts thereof. For the sole purpose of such maintenance

and preservation, every cemetery corporation shall establish and maintain (A) a

permanent maintenance fund, and (B) a current maintenance fund. At the time

of making the sale of a lot, plot or part thereof, the cemetery corporation shall

deposit not less than ten per centum of the gross proceeds of the sale into the

permanent maintenance fund. An additional fifteen per centum of the gross pro-

ceeds of the sale shall be deposited in the current maintenance fund. In addition

to the foregoing, at the time the cemetery corporation receives payment for the

performance of an interment or inurnment, the cemetery corporation shall collect

and deposit into the permanent maintenance fund the sum of thirty-five dollars.

(2) The permanent maintenance fund is hereby declared to be and shall be held

by the corporation as a trust fund, for the purpose of maintaining and preserv-

ing the cemetery, including all lots, crypts, niches, plots, and parts thereof. The

principal of such fund shall be invested in such securities as are permitted for

the investment of trust funds by section 11-2.3 of the estates, powers and trusts

law. The income in the form of interest and ordinary dividends therefrom shall be

used solely for the maintenance and preservation of the cemetery grounds. In

addition, the governing board of the corporation may appropriate for expenditure

solely for the maintenance and preservation of the cemetery grounds a portion

of the net appreciation, in the fair market value of the principal of the trust, as

is prudent under the standard established by article five-A of this chapter, the

prudent management of institutional funds act. In the event that a cemetery

corporation seeks to appropriate any percentage of its net appreciation in its

permanent maintenance fund in accordance with this subparagraph, the cemetery

corporation shall provide notice of such proposed appropriation by certified mail

to the cemetery board not less than sixty days in advance of such proposed ap-

propriation and shall disclose such appropriation as part of and in addition to their

annual reporting requirements as defined in section fifteen hundred eight of this

article, setting forth the amount of funds to be appropriated for such expenditure

and its effect on the permanent maintenance fund. Such proposed appropriation

shall become effective sixty days after receipt of such notice, unless the cem-

etery board within such sixty-day period notifies the cemetery corporation that

the board objects to the proposed appropriation. Notwithstanding the foregoing

provisions of this subparagraph, all principal of the permanent maintenance fund

shall remain inviolate, except that, upon application to the supreme court in a

district where a portion of the cemetery grounds is located, the court may make

an order permitting the principal or a part thereof to be used for the purpose

of current maintenance and preservation of the cemetery or otherwise. Such

application may be made by the cemetery board on notice to the corporation or

by the corporation on notice to the cemetery board. Unless the cemetery can

clearly demonstrate that it lacks sufficient future revenue to make repayment,

any such allowance from the permanent maintenance fund shall be in the form

of a loan, and the court shall determine the method for repayment of such a loan

by the cemetery to the fund.

(3) The current maintenance fund shall be used and applied for the sole purpose

of ordinary and necessary expenses of the care and maintenance of the cemetery.

When all burial rights in the cemetery have been conveyed, the fund remaining

on deposit or to the credit of the current maintenance fund shall be transferred

into the permanent maintenance fund.

(4) The percentage of the proceeds of sales required to be deposited in the per-

manent maintenance fund or current maintenance fund by a particular cemetery

corporation may be increased or diminished by order of the supreme court in a

district where any portion of the cemetery is located. Such application may be

made by the cemetery board on notice to the corporation or by the corporation

on notice to the cemetery board.

(b) Perpetual care of lots.

(1) Upon the application of a prospective purchaser of any lot, plot or part thereof

and upon payment of the purchase price and the amount fixed as a reasonable

charge for the perpetual care of any lot, plot or part thereof, every cemetery

corporation shall include with the deed of conveyance an agreement perpetually

to care for such lot, plot, or part thereof, to the extent that the income derived by

the corporation from such amount will permit.

(2) Such corporation also, upon the application of an owner or of the executor or

administrator of a deceased owner of any lot and upon the payment of the amount

fixed as a reasonable charge for the perpetual care of such lot, shall, and upon

the application of any other person and the payment of such amount, may enter

into a like agreement with him. Such agreement shall be executed and may be

recorded in the same manner as a deed.

(3) Any corporation organized under or subject to the provisions of this section

may enter into an agreement in writing with any executor or executors, trustee

or trustees, under a last will and testament to whom there has heretofore been,

or may hereafter be, bequeathed a sum for the perpetual care of any lot, plot or

part thereof in any such cemetery or with any administrator or administrators

with the will annexed under any such will perpetually to care for such lot, plot or

part thereof under the provisions of the terms of such last will and testament, and

subject in all cases to the approval of the surrogate’s court having jurisdiction over

such trust estate. Such approval may be evidenced by the written endorsement

of the surrogate on a duplicate original of such agreement filed in the surrogate’s

court. In case the surrogate shall approve such agreement any such executor,

trustee or administrator with the will annexed thereupon shall pay over to the

treasurer of such perpetual care fund of such cemetery corporation any moneys

remaining or being in his hands belonging to such trust, and upon making such

payment and accounting therefore to the surrogate’s court may be discharged

from said trust as such executor, trustee or administrator with the will annexed.

(c) Perpetual care fund.

(1) Every cemetery corporation and every religious corporation having charge

and control of a cemetery which heretofore has been or which hereafter may be

used for burials, shall keep separate and apart from its other funds, all moneys

and property received by it, whether by contract, in trust or otherwise, for the

perpetual care and maintenance of any lot, plot or part thereof in its cemetery,

and all such moneys or property so received by any such corporation are hereby

declared to be, and shall be held by the corporation as trust funds. Any moneys

and property so received, unless otherwise provided in the instrument under

which such moneys or property were received, shall be kept in a separate fund

to be known as the perpetual care fund.

(2) The principal of such funds, whether kept in the perpetual care fund or oth-

erwise, and unless already so invested when received, shall be invested within

a reasonable time after receipt thereof, and kept invested, in such securities as

are permitted for the investment of trust funds by sections 11-2.2 and 11-2.3 of

the estates, powers and trusts law. The income arising therefrom shall be used

solely for the perpetual care and maintenance of the lot or plots or parts thereof

for which such income has been provided. In addition, the governing board of the

corporation may appropriate for expenditure solely for the perpetual care and

maintenance of the lot or plots or parts thereof for which such income has been

provided, a portion of the net appreciation in the fair market value of the principal

of the trust as is prudent under the standard established by article five-A of this

chapter, the prudent management of institutional funds act. In the event that a

cemetery corporation seeks to appropriate any percentage of its net appreciation

in its perpetual care fund in accordance with this subparagraph, the cemetery

corporation shall provide notice of such appropriation to the cemetery board

not less than sixty days in advance of such proposed appropriation and shall

disclose such appropriation as part of and in addition to their annual reporting

requirements as defined in section fifteen hundred eight of this article setting

forth the amount of funds appropriated for such expenditure and its effect on

the perpetual care funds. Such proposed appropriation shall become effective

sixty days after receipt of such notice, unless the cemetery board within such

sixty day period notifies the cemetery corporation that the board objects to the

proposed appropriation.

3) The corporation may, for the purpose of investing and reinvesting such funds,
add the same to any similar trust fund or funds and apportion shares or interest
to each trust fund, showing upon its records at all times every share or interest.
(4) The corporation may accept in trust for the perpetual care of a lot, plot or part
thereof in its cemetery, property not made eligible for the investment of trust funds
under the foregoing provisions of this subdivision and may retain such property
in the form in which received, separate and apart from the perpetual care fund,
if directed so to do by the instrument under which such property is received, so
long as such property remains in the form in which it was received; but when-
ever such property is sold or otherwise disposed of, the proceeds of such sale
or other disposition shall be invested in the manner heretofore provided in this
subdivision for the investment of trust funds. The exchange of stock or evidences
of indebtedness issued by a corporation for stock or evidences of indebtedness
of the same corporation, or for stock, evidences of indebtedness, warrants or
script received as a result of merger, consolidation or reorganization of such
corporation, or the receipt of additional stock or evidences of indebtedness of
such corporation, as a distribution by such corporation, shall not be deemed to be
a disposition of the property originally received in trust, and such exchanged or
additional property may be retained in place and stead of the property originally
received, and under the same conditions. The corporation shall keep accurate
accounts of all funds for the perpetual care and maintenance of cemetery lots,
plots or parts thereof, separate and apart from its other funds. A copy of the record
pertaining to each such perpetual care fund shall be at all times available at the
office of the corporation during usual business hours, for inspection and copy
by any owner of an endowed lot or his representative.
(d) Perpetual care fund; allocation of income and cost of care and maintenance.
On or before the fifteenth day of March in each calendar year the officers of
every cemetery corporation shall fix and determine that portion of the income on
the investment of the principal of the perpetual care fund during the calendar or
fiscal year immediately preceding, to be apportioned to each separate lot or part
thereof for which a perpetual care agreement has been made. The cost during
such previous calendar or fiscal year of the care of each lot or part thereof shall
be allocated and charged against the income so apportioned to it. Any excess
of the income so apportioned over and above the allocated cost of the care
and maintenance of such lot or part thereof shall be credited to such lot or part
thereof, to be used in any future years to make up the deficiency if the income
apportioned to such lot or part thereof should, in any year since September first,
nineteen hundred forty-nine, or in any future year, fall, or have fallen, below the
cost of care thereof.
(e) Designation of fiduciary corporation by directors or trustees of cemetery
corporation to act as custodians of funds. Notwithstanding the provisions of
any other law, the directors or trustees of cemetery corporations are hereby
authorized to designate a bank or trust company to act as custodian and trustee
of any or all of the respective funds of such cemetery corporation received by
it for the perpetual care of lots in the cemetery thereof pursuant to paragraph
(b), of this section, the permanent maintenance of such cemetery pursuant to
paragraph (a) of this section, and for special purposes pursuant to paragraph (f)
of this section. Such corporate trustee shall be designated by a resolution duly
adopted by the board of directors or trustees and approved by a justice of the
supreme court of the judicial district in which the cemetery of said corporation
is located or the cemetery board; and the directors or trustees of such cemetery
corporation may, with the approval of the justice of the supreme court, revoke
such trust, and either take over such trust fund or name another trustee to handle
the same, but if not so revoked, such trust shall be perpetual. Any bank or trust
company accepting any such cemetery fund shall keep the same separate from
all other funds, except that it may, irrespective of any provision contained in this
article invest the same in a legal common trust fund or in shares of a mutual
trust investment company organized under the banking law, and shall pay over
the net income to the directors or trustees of the cemetery corporation by whom
it shall be expended and applied to the purpose for which such trust fund was
paid to the cemetery corporations and accounted for in accordance with such
paragraphs (a), (b) and (f) of this section.
(e-1) Monument maintenance fund.
(1) A cemetery corporation may, subject to the approval of the cemetery board,
establish and maintain a monument maintenance fund. Such a fund is hereby
declared to be and shall be held by the cemetery corporation as a trust fund,
for the purpose of providing notice if such monuments are damaged or defaced
by an act of vandalism and for the restoration of such monuments. Two or more
cemetery corporations may establish a joint monument maintenance fund.
(2) The principal of the fund shall be invested in securities permitted for the invest-
ment of trust funds by sections 11-2.2 and 11-2.3 of the estates, powers and trusts
law. The principal of such fund shall remain inviolate, except that upon applica-
tion to the cemetery board, which may make an order permitting the principal or
a part thereof to be used for the purpose of restoring monuments damaged or
defaced by an act of vandalism. The income arising from such investment shall
be used solely for the costs and expenses resulting from an act of vandalism
against monuments in such cemetery.

(3) The fund shall be financed by a charge levied at the time of each interment at

a rate established by each cemetery creating such a fund, subject to cemetery

board approval pursuant to section fifteen hundred nine of this article. Such a

charge shall be levied in addition to the approved rates for interment. The fund

may also accept gifts, donations and bequests.

(4) Each cemetery creating such a fund shall promulgate rules and regulations

to administer the fund, subject to cemetery board approval pursuant to section

fifteen hundred nine of this article. Such rules shall include the conditions under

which the income from such fund may be properly expended.

(5) The cemetery corporation shall keep accurate accounts of all moneys for the

fund, separate and apart from its other funds.

(f) Acquisition of property for special purposes and in trust.

(1) A cemetery corporation may acquire, otherwise than by condemnation, real

or personal property, absolutely or in trust, in perpetuity or otherwise, and shall

use the same or the income therefrom in pursuance of the terms of the instrument

by which it was acquired, for the following purposes only:

(i) The improvement or embellishment, but not the enlargement, of its cemetery;

(ii) The construction, preservation or replacement of any building, structure,

fence, wall, or walk therein;

(iii) The erection, renewal or preservation of any tomb, monument, stone, fence,

wall, railing or other erection or structure on or around its cemetery or any lot

or plot therein;

(iv) The planting or cultivation of trees, grass, shrubs, flowers or plants in or about

its cemetery or any lot or plot therein;

(v) The construction, operation, maintenance, repair and replacement of a crema-

tory or columbarium or both in its cemetery;

(vi) The care, keeping in order and embellishment of any lot, plot or part thereof or

the structures thereon, in its cemetery, as prescribed in the instrument transferring

such property to the cemetery corporation, or by the person or persons from time

to time having possession, care and control of such lot, plot or part thereof, as the

case may be. (2) All moneys and property received by a cemetery corporation in

trust under this subdivision, unless otherwise provided in the instrument under

which such moneys or property were received and unless already so invested

when received, shall be invested within a reasonable time after the receipt

thereof, and kept invested in such securities as are permitted for the investment

of trust funds by sections 11-2.2 and 11-2.3 of the estates, powers and trusts law.

The corporation may, for the purpose of investing and reinvesting such funds,

add the same to any similar trust fund or funds and apportion shares or interests

to each trust fund, showing upon its records at all times every share or interest.

The cemetery corporation shall maintain a record for each such trust fund. Such

record shall be at all times available at the office of the corporation during usual

business hours, for inspection and copy by any owner of an endowed lot or his

representative.

(g) Trust for the care of burial ground. A cemetery corporation, incorporated

under or by a general or special law, may receive tangible property, securities

or funds in trust, and hold and invest the same and apply the principal or income

thereof, in accordance with the terms of the trust, for the purpose of repairing,

maintaining, improving or embellishing a burial ground, not constituting a part of

the cemetery of such cemetery corporation, and located outside of a city of more

than one million inhabitants and within ten miles of the cemetery of the corporation

accepting such trust. The directors of such corporation, or a majority of them and

the treasurer, shall annually within sixty days after the close of each calendar

or fiscal year, make, sign and shall file at the office of the corporation a detailed

accounting and report of such trust funds held under this subdivision and the use

made of such funds or of the income thereof for the preceding calendar or fiscal

year, which shall include among other things, properly itemized, the securities

in which the same is then invested, and any purchases, sales or other changes

made therein during the period covered by such report. Such accounting and

report shall be at all times available at the office of the corporation, during usual

business hours, for inspection and copy by any lot owner or any contributor to

such trust fund.

(h) Vandalism, abandonment and monument repair or removal.

(1) Cemeteries incorporated under this article shall contribute to a fund created

pursuant to section ninety-seven-r of the state finance law for the maintenance of

abandoned cemeteries, including the construction of cemetery fences, placement

of cemetery lights and replacement of cemetery doors and locks, for the restora-

tion of property damaged by acts of vandalism, and for the repair or removal of

monuments or other markers not owned by the cemetery corporation that have

fallen into disrepair or dilapidation so as to create a dangerous condition. Such

fund shall be administered by a board of trustees comprised of the secretary of

state, the attorney general and the commissioner of health, or their designees,

who shall serve without additional compensation.

(2) The fund shall be financed by contributions by the cemetery corporations of

not more than five dollars ($5.00) per interment or cremation in a manner to be

determined by the New York state cemetery board. No contributions shall be

collected upon the interment of the cremains of a deceased person where a

contribution was collected upon cremations.

(3) The moneys of the fund shall be expended equally for the maintenance of

abandoned cemeteries previously owned by a corporation incorporated pursuant

to this chapter or the membership corporations law and the repair of cemetery

vandalism damage and the repair or removal of monuments or other markers

not owned by the cemetery corporation, provided, however, that the cemetery

board may determine that circumstances necessitate an unequal distribution

due to specific needs and may provide for such distribution. For purposes of this

section, the maintenance of abandoned cemeteries may include the construction

of cemetery fences, placement of cemetery lights and replacement of cemetery

doors and locks.

(4) Authorization for payments by the fund for maintenance of an abandoned

cemetery shall be made by the secretary of state only upon approval by the

cemetery board of an application by a municipality or other solvent not-for-profit

cemetery corporation for fair and reasonable expenses required to be made by

the municipality or other solvent not-for-profit cemetery corporation for mainte-

nance of an abandoned cemetery; provided, however, that the cemetery board

shall not approve any such application unless the municipality or other solvent

not-for-profit cemetery corporation acknowledges that the responsibility for

restoration and future care, preservation, and maintenance of such cemetery

has been assumed by the municipality or other solvent not-for-profit cemetery

corporation. For the purposes of this paragraph, such cemetery shall always be

deemed an abandoned cemetery.

(5) Authorization for payments by the fund for the repair of vandalism damage

shall be made by the secretary of state only on approval by the New York state

cemetery board which shall determine:

(i) that an act of vandalism to the extent described by the cemetery corporation

did take place;

(ii) that either a written report of the vandalism was filed with the local police or

sheriff’s department, or, that the cemetery, upon consent of the division, made a

determination not to file the report because the publicity generated by filing the

report would have adverse consequences for the cemetery;

(iii) that the cost of repairs is fair and reasonable; and

(iv) that the cemetery corporation has been unable to obtain funds from the lot

owner, his spouse, devisees or descendants within a reasonable period of time nor

are there adequate funds in the cemetery corporations monument maintenance

fund, if such a fund has been established by the cemetery.

(6) Authorization for payments by the fund for the repair or removal of monuments

or other markers not owned by the cemetery corporation shall be made by the

secretary of state only on approval by the New York state cemetery board on

application by the cemetery corporation showing:

(i) that the monuments or markers are so badly out of repair or dilapidated as to

create a dangerous condition;

(ii) that the cost of remedying the condition is fair and reasonable;

(iii) that the cemetery corporation has given not less than sixty days notice to the

last known owner to repair or remove the monument or other marker and the said

owner has failed to do so within the time prescribed in said notice.

(7) The New York state cemetery board shall promulgate rules defining standards

of maintenance, as well as what type of vandalism or out of repair or dilapidated

monuments or other markers shall qualify for payment of repair or removal by

the fund and the method and amount of payment of contributions described in

subparagraph two of this paragraph upon the recommendation of the state cem-

etery board citizens advisory council created by section fifteen hundred seven-a

of this article (State cemetery board citizens advisory council).

(8) Nothing contained in this paragraph is to be construed as giving a cemetery

corporation an “insurable interest” in monuments or other embellishments on

a plot, lot or part thereof, nor is it meant to imply that the cemetery corporation

has any responsibility for repairing vandalism damage not covered by this fund,

nor for repairing or removing out of repair or dilapidated monuments or other

markers not owned by the cemetery corporation, nor shall it constitute the doing

of an insurance business.

§ 1510. Cemetery duties:

(a) Posting and distribution of rules, regulations, charges and prices. The rules,

regulations, charges, and prices of lots, plots or parts thereof shall be suitably

printed and shall be conspicuously posted by the corporation in each of its of-

fices. A printed copy of prices of lots, plots or parts thereof shall be made avail-

able upon request by any person for up to the actual price of the printing of the

copy. For each day in which the corporation fails to post the rules, regulations,

charges and prices the corporation shall be subject to a penalty of twenty-five

dollars which may be recovered in a civil action by the cemetery board. For each

instance in which the corporation fails to make available a copy of the prices of

lots, plots, or parts thereof, to a person who request such copy, the corporation

shall be subject to a penalty of twenty-five dollars which may be recovered in a

civil action by the cemetery board. The cemetery board may waive the payment

of the penalty or any part thereof.

(b) Surveys and maps of cemetery. (1) Every cemetery corporation, from time to

time, as land in its cemetery may be required for burial purposes, shall survey

and subdivide such lands and make and file in the office of the corporation a

map thereof, open to public inspection, delineating the lots or plots, avenues,

paths, alleys and walks and their respective designations; a true copy thereof

shall upon its written request, be filed with the cemetery board. Any unsold lots,

plots or parts thereof, in which there are no remains, by order of the directors,

may be resurveyed and altered in shape or size, and properly designated on such

map. (2) Every cemetery corporation shall provide reasonable access to every

lot, plot and grave. This provision shall not be applicable where on September

first, nineteen hundred forty-nine such access cannot be provided without the

disinterment of a body or bodies. A cemetery corporation shall not permit or

allow a body to be interred hereafter in a path, alley, avenue or walk shown on

the cemetery maps or actually in existence. Nothing herein contained, however,

shall prevent a cemetery corporation in special cases from enlarging a lot by

selling to the owner thereof the access space next to such lot, and permitting

interments therein, provided reasonable access to such lot and to adjoining lots

is not thereby eliminated, and provided the approval of the cemetery board shall

have first been obtained.

(c) Record of burials or cremations. A record shall be kept of every burial in the

cemetery of a cemetery corporation, showing the date of burial, the name, age,

and place of birth of the person buried, when these particulars can be conve-

niently obtained, and the lot, plot, or part thereof, in which such burial was made.

A copy of such record, duly certified by the secretary of such corporation, shall

be furnished on demand and payment of such fees therefor as are allowed the

county clerk for certified copies of records. Notwithstanding any other provi-

sion of this section, all cemetery corporations which conduct cremations shall

maintain permanent records of the name of the deceased human being, the

funeral home from which the remains were received, the receipt of delivery of

the deceased human remains, the authorizing agent for the cremation, and the

manner of disposition of the cremains. Such records may be reviewed by the

division of cemeteries at any time.

(d) When burial not to be refused. No cemetery corporation shall refuse or deny

the right of burial and the privileges incidental thereto in any lot, plot or part

thereof to those otherwise lawfully entitled to be buried therein, for any reason

except for the non-payment of interment charges and the purchase price of the lot,

plot or part thereof, in accordance with the terms of the contract of purchase or

except as provided in subdivision (f) of section fifteen hundred nine of this article.

(e) Removals. A body interred in a lot in a cemetery owned or operated by a

corporation incorporated by or under a general or special law may be removed

therefrom, with the consent of the corporation, and the written consent of the

owners of the lot, and of the surviving wife, husband, children, if of full age, and

parents of the deceased. If the consent of any such person or of the corporation

can not be obtained, permission by the county court of the county, or by the

Supreme Court in the district, where the cemetery is situated, shall be sufficient.

Notice of application for such permission must be given, at least eight days prior

thereto, personally, or, at least sixteen days prior thereto, by mail, to the corpora-

tion or to the persons not consenting, and to every other person or corporation

on whom service of notice may be required by the court.

(f) Expenses of improving vacant lot. Whenever a person having a lot in a cemetery

shall vacate the same by a removal of all the bodies therefrom, and leave such

lot in an unsightly condition for one month, the corporation may grade, cut, fill or

otherwise change the surface thereof, without reducing the area of the lot. The

expense, not exceeding ten dollars, shall be chargeable to the lot. If the owners

of such lot, within six months after such expense has been incurred, shall not

repay such expense, the corporation may sell the lot at public auction upon the

cemetery grounds, previous notice of such sale having been posted at the main

entrance of the cemetery, and mailed to the owners of such lot at their last-known

post office address, at least ten days prior to the day of sale, and shall pay the

surplus, if any, on demand to the owners of such lot.

(g) Removal or correction of dangerous conditions in cemetery lots. Any plant

life, fencing or embellishment or structure other than a mausoleum, monument or

mound, in a lot, plot or part thereof which becomes so worn, neglected, broken

or deteriorated that its continued existence is a danger to persons or property

within the cemetery grounds may be removed, repaired or corrected by the

cemetery corporation at its own cost and expense, provided it first gives not less

than fifteen days notice by registered or certified mail to the last known owner at

his last known address to repair or remove such object and the said owner shall

fail to repair or remove the object within the time provided in said notice. In the

event of such removal, correction or repair by the cemetery corporation it shall,

within twenty days thereafter, notify the lot owner, by registered or certified mail

addressed to him at his last known address, of the action taken by the cemetery

corporation. Nothing herein contained shall be construed to affect, supersede or

impair any contract, rule or regulation duly approved by the cemetery board, or

right or obligation of the cemetery corporation, nor shall it be construed as placing

any legal duty or obligation to exercise any right authorized by this subdivision.

(h) Repair or notice as to non-dangerous damage or defacement. Except as

otherwise provided by rule or regulation of the cemetery board pursuant to sub-

paragraph two-a of paragraph (c) of section fifteen hundred four of this article,

in the event a lot, plot or part thereof is substantially damaged or defaced which

does not present a dangerous condition to persons or property, or in the event

a mausoleum, monument or mound in a lot, plot or part thereof is substantially

damaged or defaced, and the correction of such condition is not subject to the

provisions of paragraph (g) of this section or section fifteen hundred ten-a of

this article, the cemetery corporation within thirty days of the discovery of this

condition may at its own cost and expense repair the damage or defacement, or

if it determines not to do so, the corporation shall within such thirty day period

notify the owner, his or her distributee or the person filing an affidavit with such

corporation pursuant to the provisions of paragraph (e) of section fifteen hun-

dred twelve of this article of such condition at the last address of such owner,

distributee or person appearing on the books and records of the corporation.

The notice shall be sent by first class mail and a certificate of mailing shall be

obtained. Nothing herein contained shall be construed as establishing any right

of damages not otherwise provided by law, rule or contract in any person against

the cemetery corporation for failure to repair any condition described or give

notice thereof as provided for in this paragraph.

(i) Record of inscriptions to be filed. Whenever, under any general or special

law, any cemetery is abandoned or is taken for a public use, the town board of

the town or the governing body of the city in which such cemetery is located,

shall cause to be made, at the time of the removal of the bodies interred therein,

an exact copy of all inscriptions on each headstone, monument, slab or marker

erected on each lot or plot in such cemetery and shall cause the same to be duly

certified and shall file one copy thereof in the office of the town or city clerk of

the town or city in which such cemetery was located and one copy in the office

of the state historian and chief of the division of history in the department of

education at Albany. In addition to such inscriptions, such certificate shall state

the name and location of the cemetery so abandoned or taken for a public use,

the cemetery in which each such body was so interred and the disposition of

each such headstone, monument, slab or marker.

(j) Grave markers. No cemetery corporation, which provides for the burial of

persons of the Jewish faith, shall promulgate any rule or regulation prohibiting

the use of cement beds as a means of demarcating a specific grave area. Such

cemetery corporations shall provide this service to all persons of the Jewish faith

requesting this method of marking a grave when such grave area is provided

through the agency of a membership or religious corporation or unincorporated

association or society which provides burial benefits for the members. Subject

to the rules and regulations promulgated by the cemetery board, such cemetery

corporations shall establish the schedule of charges to be assessed for installa-

tion and maintenance of cement beds. The schedule of charges shall be filed with

and approved by the cemetery board. Such regulation may require the payment

of the cost of perpetual care as a condition to such installation and maintenance.

The charges assessed shall be paid by the person requesting the service. The

provisions of this paragraph shall only be applicable within the counties contained

within the first, second, tenth and eleventh judicial districts as such districts are

arranged pursuant to section one hundred forty of the judiciary law.

(k) Notice and restoration as to damage and defacement due to vandalism. In the

event a monument is damaged or defaced by an act of vandalism, the cemetery

corporation shall, within thirty days of the discovery of such damage, notify the

owner, his distributee or the person filing an affidavit with such corporation pursu-

ant to the provisions of paragraph one of subdivision (e) of section fifteen hundred

twelve of this article of such damage in the manner provided in subdivision (h) of

this section. The cost and expense of such notice may be provided from the fund

where such fund exists. If a fund has been established, the cemetery corporation

shall restore the monument with moneys from such fund. If such a fund has not

been established or where such fund is inadequate to restore the monument,

the cemetery corporation may restore such monument at its own cost and ex-

pense. Nothing herein contained shall be construed as establishing any right of

damages not otherwise provided by law, rule or contract in any person against

the cemetery corporation for failure to restore any monument if no monument

maintenance fund exists or if such fund is inadequate to restore such monument.

(l) Removal of monument. No person or organization shall remove a monument

without authorization in the form of a court order from a court of competent

jurisdiction, or without the written authorization of the owner of a burial plot, or

the lineal descendants of the deceased, if such owner or lineal descendants are

known, and without obtaining written approval from a duly incorporated cemetery

association, which association shall keep a record of all such written approvals.

The provisions of this section shall not prohibit the removal, in accordance with

rules and regulations promulgated by the secretary of state, of a monument for

the purpose of repair, nonpayment or adding inscriptions as authorized by a

cemetery association or as permitted in this article. A violation of any provision

of this paragraph shall be punishable by a fine not to exceed five hundred dollars.

(m) Use of construction and demolition debris for burial. No cemetery corporation

or religious corporation having charge and control of a cemetery which hereto-

fore has been or which hereafter may be used for burials, shall use construction

and demolition debris, as that term is defined in 6 NYCRR 360-1.2, for the purpose

of burying human remains.

(n) Interment of pet cremated remains. The interment of pet cremated remains

in a cemetery corporation shall be available to a lot owner only in those circum-

stances where the interment is incidental to the burial of human remains and

where authorization has been provided in a written statement from the cemetery

corporation. The cemetery corporation shall provide a list of approved charges

for the interment of such remains. All payments received for interment of such

remains shall be deposited in the cemetery corporation’s permanent maintenance

fund. Pet cremated remains must be disposed of by placing them in a grave, crypt,

or niche. Nothing in this section shall obligate a cemetery corporation to allow

interment of such cremated pet remains where prior approval at the time of sale

or in advance of need has not been received. The provisions of this section shall

not apply to an incorporated or unincorporated cemetery operated, supervised

or controlled by a religious corporation or a lot, plot or part thereof whose record

owner is an incorporated or unincorporated religious association or society.

§ 1510-a. Repair or removal of monuments:

(a) Cemetery corporations may repair or remove any monuments or other mark-

ers not owned by the cemetery corporation that have fallen into disrepair or

dilapidation so as to create a dangerous condition, provided that the cemetery

corporation has given not less than sixty days’ notice by registered or certified

mail to the last known owner at that person’s last known address to repair or

remove the monument or other marker and the said owner has failed to do so

within the time provided in said notice.

(b) In the event that the last known owner cannot be found, the notice may be

given by publishing the same once each week for three consecutive weeks in a

newspaper published or circulated in the county in which the cemetery is located.

Such notice shall be addressed to the last known owner and to all persons having

or claiming any interest in or to the burial lot on which the monument or other

marker is located. The notice shall date from the date of mailing such notice by

registered or certified mail, or the date of the third publication in the newspaper.

(c) Any monument or other marker that is removed as provided for in this sec-

tion shall be replaced with a flush bronze or granite marker suitably inscribed if

replacement is appropriate for identification purposes.

(d) Nothing contained herein shall be construed as establishing any right of dam-

ages not otherwise provided by law, rule or contract in any person against the

cemetery corporation for failure to repair or remedy any condition described or

give notice thereof as provided for in this section.

§ 1510-b. Availability for interment on six-day basis:

Every cemetery corporation shall be available for interments at least six days per

week, excluding legal holidays, as set forth in the cemetery’s regulations or in

accordance with its practices. Any cemetery which maintains and designates a

burial section for persons of a particular religious belief must remain available for

grave openings and interments Sunday through Friday or other six-day period in

accordance with the religious and/or ethnic traditions of the persons interred in

said religious section. Nothing in this section shall require a cemetery to provide

grave openings and/or interments if they are otherwise unable to do so as to

direct consequence of severe weather conditions or other similar conditions.

1512. Rights of lot owners:

(a) Lots; indivisible and inalienable. All lots, plots or parts thereof, the use of which

has been conveyed as a separate lot, shall be indivisible, except with the consent

of the lot owner or lot owners and the corporation, or as in this section provided.

After a burial therein, the same shall be inalienable, except as otherwise provided.

(b) Interest of deceased lot owner. Upon the death of an owner or co-owner

of any lot, plot or part thereof, unless the same shall be held in joint tenancy,

or tenancy by the entirety, the interest of the deceased lot owner shall pass to

the devises of such lot owner, but, if such interest be not effectually devised,

then to his or her descendants then surviving, and if there be none, then to the

surviving spouse, and if there be none, then to those entitled to take the real

and personal property of the deceased lot owner pursuant to article four of the

estates, powers and trust law provided, however, that no interest in any lot, plot

or part thereof shall pass by any residuary or other general clause in a will and

such interest shall pass by will only if the lot, plot or part thereof sought to be

devised is specifically referred to in such will. The surviving spouse of a deceased

lot owner during his or her life and the owners from time to time of the deceased

lot owner’s lot, plot or part thereof, shall have in common the possession, care

and control of such lot, plot or part thereof.

(c) Purchase for burial of decedent. Whenever a lot, plot or part thereof shall be

purchased by the executor, administrator or representative of a decedent from

estate funds for the burial of the decedent, the surviving spouse of the decedent

shall have the right of interment therein, and the deed shall run to the names of

the distributees, other than the surviving spouse, of the decedent, or to “The

distributees, other than the surviving spouse, of ........., deceased”, if there be

such surviving spouse, otherwise to “The distributees of............., deceased.” If

the deed shall run to “The distributees, other than the surviving spouse of .........,

deceased,” or to “The distributees of ........., deceased,” the executor, adminis-

trator or representative shall, at the time of delivery of the deed to such lot, plot

or part thereof, file with the corporation an affidavit setting forth the names and

places of residence of all the decedent’s distributees, and the corporation shall

be entitled to rely upon the truth of the statements contained in such affidavit.

(d) Right of interment. A deceased person shall have the right of interment in any

lot, plot or part thereof of which he or she was the owner or co-owner at the time

of his or her death, or in any tomb erected thereon. The surviving spouse shall have

the right of interment for his or her body in a lot or tomb in which the deceased

spouse was an owner or co-owner at the time of his or her death, except where

all the available burial spaces in a lot or tomb have been designated for the

interment of persons other than the surviving spouse, pursuant to subdivision (f)

of this section, and a right to have his or her body remain permanently interred or

entombed therein, except, that such body may be removed therefrom as provided

in subdivision (e) of section fifteen hundred ten of this article. Such right may be

enforced and protected by his or her personal representatives. The remains of a

spouse, parent or child of a person who is an owner or co-owner thereof may

be interred in such lot or tomb without the consent of any person claiming any

interest therein, subject, however, to the following rules and exceptions: (A) The

place of interment in such lot shall be subject to the reasonable determination

by a majority of the co-owners or in the absence of such determination by the

cemetery corporation or its officer or agent having immediate charge of inter-

ments. (B) Any husband or wife living separate from the other and owning a lot in

which the other, but for this section, would have no right of burial, at least thirty

days before the death of the other, may file with the cemetery corporation a writ-

ten objection to the interment of the other, and thereupon there shall be no right

of interment under this subdivision. (C) A parent or child owning a lot in which

the other would have no right of burial but for this section, at least thirty days

before the death of the other, may file with the cemetery corporation a written

objection to the interment of the other, and thereupon there shall be no right of

interment under this subdivision. In such case, if the parent or child so excluded

from burial in such lot shall die without having any place of interment, then the

person filing such objection shall at once provide for the other a suitable place

of burial in a convenient cemetery. The cost of such place of interment shall be

chargeable to the decedent’s estate, if any. (D) This section shall not permit a burial

in any ground or place contrary to or in violation of any precept, rule, regulation

or usage of any church or religious society, association or corporation restricting

burial therein. This subdivision shall not limit any existing right of burial under

other provisions of law, nor shall it limit or curtail the right of alienation, under the

rules of the cemetery corporation wherein such lot is situated, by the owner of a

lot before the death of the person for whose remains the right of burial is provided

herein, and there shall be no right of burial in any lot sold by its owner, before

the death of the person for whose remains the right of burial is provided herein.

(e) More than one person entitled to possession and control. (1) At any time when

more than one person is entitled to the possession, care and control of such lot,

any of the persons so entitled thereto may file with the corporation an affidavit

setting forth the names and places of residence of all the persons entitled to the

possession, care and control of such lot, and the corporation shall be entitled to

rely upon the truth of the statements contained in such affidavit. The corporation

shall be entitled to collect a reasonable fee for filing and recording such affidavit

and other documents filed in its office. (2) At any time when more than one per-

son is entitled to the possession, care or control of such lot, plot or part thereof,

the persons so entitled thereto shall file with the corporation a designation of a

person who shall represent the lot, plot or part thereof, and so long as they shall

fail to designate, the corporation may make such designation. A distributee may

release his or her interest in a lot, plot or part thereof, to the other distributees,

and a joint owner may release or devise to the other joint owners, his or her right

in the lot, plot or part thereof, on conditions specified in the release or will, the

original or certified copy of which shall be filed in the office of the corporation.

The surviving spouse not excluded from the right of burial under the provisions

of subdivision (d) of this section, at any time may release his or her right in such

lot, plot or part thereof, but no conveyance or devise by any other person shall

deprive him or her of such right.

(f) Designation of persons who may be interred. At any time all the owners of a

lot, and any surviving spouse having a right of interment therein, may execute,

acknowledge and file with the corporation an instrument, and the sole owner of

a lot may, in a testamentary instrument admitted to probate, make a provision,

which may (A) designate the person or persons or class of persons who may

thereafter be interred in said lot or in a tomb in such lot and the places of their

interment; (B) direct that upon the interment of certain named persons, the lot or

tomb in such lot shall be closed to further interments; (C) direct that the title of the

lot shall upon the death of any one or more of the owners, descend in perpetuity

to his, her or their distributees, unaffected by any devise. In any case in which

an irrevocable designation of a person, persons or class of persons who may

be interred in any lot or tomb has been made pursuant to this subdivision and in

which the designated person or persons, or all of the known class of designated

persons, have died and have not been buried in the places designated in said lot

or tomb, or have by a written instrument duly signed and acknowledged and filed

with the corporation, renounced the right of interment pursuant to such designa-

tion, then, and in any such event, the then owner or owners of said lot or tomb

and any surviving spouse having the right of interment therein, may designate

another person or persons or class of persons who may thereafter be interred

in said lot or in a tomb in said lot, and the places of their interment, unless the

original designation clearly indicated not only that it was irrevocable, but also

that no further designations were to be made. Any designation provided for by this

subdivision except a designation by testamentary instrument, shall be deemed

revocable unless such instrument provides otherwise. In the event an owner or

co-owner of a lot is under the age of eighteen years, any designation provided

for by this subdivision, except a designation by testamentary instrument, may be

executed and acknowledged by the parent or general or testamentary guardian

for and on behalf of such owner or co-owner, provided, however, that no such

designation may be made unless a place of interment shall remain available in

said lot or in a tomb in such lot for the interment of each owner or co-owner of

the lot under the age of eighteen years, and any designation so made may be

revoked by the owner or co-owner upon reaching the age of eighteen years

except with respect to burials effected before that time. A designation made by

a parent or guardian on behalf of an infant owner or co-owner who is over the

age of fourteen years must contain the written consent of such infant owner

or co-owner.

(g) Lot owner voting. Each owner of full age of a lot in the cemetery of the cor-

poration, as shown in the records of the cemetery at the time of the purchase of

the lot from the corporation, or if there be two or more owners, then one of them

designated in writing by a majority of them, may cast, in person or by proxy, one

vote at meetings of the corporation in respect to each such lot so owned. At such

meetings, each owner of a certificate of stock heretofore lawfully issued shall

be entitled to one vote for each share of stock owned by him and each owner of

a certificate of indebtedness shall be entitled to one vote for each one hundred

dollars of such indebtedness remaining unpaid. No lot owner shall be entitled to

vote unless all assessments against the lot of such owner shall have been paid.

A quorum for the transaction of business, unless the certificate of incorporation

or by-laws otherwise provide, shall be five members entitled to vote at the meet-

ing. In the event a lot owner has executed a proxy which has been in effect for

five or more years, the cemetery corporation shall not honor such proxy unless

it is presented with proof that the lot owner has been sent a written notice at

the address listed in the records of the corporation at least thirty days prior to

the meeting at which the proxy is to be exercised advising the lot owner that the

proxy is still effective. The notice shall identify the date, time and place of such

meeting, and the name of the person holding the proxy and shall state that it may,

unless the proxy provides otherwise, be terminated at any time. Such notice need

not be mailed more frequently than every fifth year.

(h) Plots owned by religious corporations, unincorporated associations, or other

entities that provide burial benefits for its members. With respect to any lot, plot

or part thereof owned by a membership or religious corporation or unincorpo-

rated association or other entity that provides burial benefits for its members,

and requires the cemetery to obtain a burial authorization from the membership,

religious corporation, unincorporated association, or other entity, the following

rules shall apply:

(1) If a cemetery receives a request to bury an individual who was a member of

a membership, religious corporation, unincorporated association, or other entity

that owns the lot, plot or part thereof in which the burial would be made, and

despite reasonable efforts on the part of the family of the deceased, the funeral

home, and/or the cemetery, no representative of the membership, religious

corporation, unincorporated association, or other entity that owns the lot, plot or

part thereof in which the burial would be made can be located to authorize the

burial, the cemetery may, at its discretion, proceed with the interment provided

that documentary evidence indicating a specific grave reservation in the lot, plot

or part thereof, for the deceased individual is provided to the cemetery and further

that the cemetery has recorded such reservation on its books and in its records;

(2) If the decedent is within the first degree of consanguinity to an individual

already interred in the lot, plot or part thereof, or the spouse of the decedent is

already interred in the lot, plot or part thereof, the cemetery may, at its discre-

tion, proceed with the interment, provided some form of documentary evidence

is provided to the cemetery as to the decedent’s right of burial in the lot, plot

or part thereof; (3) The right of memorialization shall, under the circumstances

described in this paragraph, pass to the person with the right of possession

of the body at the time of burial; and (4) Neither the cemetery nor the funeral

director shall be liable for any claims, in law or equity, relating to the failure to

obtain authorization from the membership, religious corporation, unincorporated

association, or other entity for the use of the plot, lot, or portion thereof provided

that the requirements of this paragraph have been met.