Current through Register Vol. 46, No. 12, March 20, 2024
(a)
Definitions.
(1) Vandalism means the willful
or malicious destruction or defacement of property in a cemetery, including,
but not limited to, the toppling of memorial stones, damage to crypts, niches,
grave sites, monuments and memorials.
(2) Abandoned cemetery means a cemetery
maintained by a municipality pursuant to law, including but not limited to one
maintained by a town pursuant to Town Law, section
291 or
by a county pursuant to County Law, section
222(5-a), which cemetery
was previously owned by a cemetery corporation organized pursuant to the
Not-for-Profit Corporation Law or existing by virtue of the Membership
Corporation Law, for which there no longer exists any corporate board or body
to maintain it, and for which there is no sufficient trust fund or endowment to
provide ordinary and necessary care and maintenance.
(3) Municipality means a city, county, town
or village.
(4) Maintenance means
the ordinary and necessary care of a cemetery, including the removal of grass
and weeds, and the preservation, care and fencing of a cemetery, and also
including the care of crypts, niches, grave sites and monuments and memorials
paid for by means of the general fund or special fund or the income applied
from the permanent maintenance fund, perpetual care fund, monument maintenance
fund, general fund, or a special fund.
(5) Qualifying damage means damage caused by
an act or acts of vandalism that cannot be repaired by means of regular
maintenance.
(6) Fund means the
fund created by Not-for-Profit Corporation Law, section 1507(h) and State
Finance Law, section
97-r.
(b) Payment of contributions. On or before
March 15th of each year, every cemetery or crematory that has performed an
interment or cremation during the preceding calendar year shall submit a check
drawn to the order of the Department of State in the total amount of monies
collected during said period toward payment to the fund. Such check shall be
accompanied by a statement signed by a cemetery officer certifying the number
of interments or cremations and the amount transmitted. The contribution shall
be $5 per interment or cremation. No contribution shall be collected upon the
interment of the cremains of a deceased person where a contribution was
collected upon cremation.
(c)
Initial report of vandalism. Within 30 days of the discovery of a qualifying
act of vandalism, the cemetery shall:
(1)
report such act to the Division of Cemeteries either verbally or in writing;
and
(2) in the event that damage
was done to a crypt, niche, grave site, monument or memorial, provide written
notice to the lot owner or next of kin, if the identity and whereabouts of such
individual is reasonably ascertainable. Such notice shall include a brief
description of the damaged property and a request for funds for its repair. The
notice shall also advise the lot owner or next of kin to seek insurance
benefits that may be available pursuant to a homeowner's insurance policy. A
copy of such notice shall be maintained by the cemetery.
(d) Application for payment for repair of
vandalism damage.
(1) The completed
application shall be submitted within six months of the date of discovery of
the act of vandalism.
(2) A
cemetery may, for good cause and within the above-described time period,
request a definite extension of time to file a vandalism application. Such
request shall be in writing and state the reasons therefor, including the date
by which it is anticipated that the application will be filed.
(3) The application shall include the
following:
(i) a description of the
qualifying damage, photographs, and the date that the report of damage was
filed with the Division of Cemeteries;
(ii) a copy of such other reports filed in
accordance with law;
(iii) a copy
of bids submitted by at least two contractors for the cost of repairs;
and
(iv) a notarized statement
signed by a cemetery officer that the cemetery has no available funds which it
is authorized to use for the purpose of the repair; that it has not been able
to obtain sufficient funds from the family of the deceased (include copies of
letters or newspaper advertisements); and that the proposed costs of the
repairs are fair and reasonable.
(4) Within 90 days of receipt of a complete
application, the Cemetery Board shall make a determination, based upon the
following factors:
(i) whether there is
qualifying damage;
(ii) severity of
the damage;
(iii) whether the
vandalism is part of a wave of vandalism;
(iv) emotional distress to visiting
families;
(v) appropriateness of
prior use of payments from the fund;
(vi) compliance with Not-for-Profit
Corporation Law, article 15 and Cemetery Board rules and regulations;
(vii) priority of application based upon
previous allocations; and
(viii)
availability of monies within the fund.
(e) Use of disbursements for vandalism.
(1) The cemetery must apply all disbursements
made by the Cemetery Board to the repair of the vandalized property described
in the vandalism application.
(2)
Any funds remaining after the repairs have been performed must be returned to
the Cemetery Board for redeposit into the vandalism fund.
(f) Final report. Within 90 days of its
receipt of disbursements, the cemetery shall make a report to the Cemetery
Board setting forth the repairs made and by whom, the amount of funds expended,
and the amount of funds to be returned to the Cemetery Board, if any. If the
repairs have not been completed, the reason therefor shall be set forth, and
the anticipated date for a subsequent, final report shall be disclosed. Such
report and any additional report shall be sworn by a cemetery
officer.
(g) Application for
maintenance of abandoned cemeteries.
(1) An
application for reimbursement for the fair and reasonable expenses for
maintenance may be made on behalf of an abandoned cemetery by the municipality
in charge of the maintenance of such cemetery. Such application shall include:
(i) a certification from the municipality of
the current status of the cemetery with respect to abandonment; the funds of
the cemetery and the investment income therefrom; donations, if any; whether
the cemetery currently sells lots or graves or performs interments or
cremations, and if so, the annual number and the total revenue;
(ii) the proposed amount and purpose of the
disbursement; and
(iii) the
contribution of the municipality and others, if any, with respect to the
maintenance of the cemetery.
(2) Within 60 days of receipt of a complete
application, the Cemetery Board shall make a determination, based upon the
following:
(i) severity of
conditions;
(ii) when applicable,
appropriateness of use of prior payments from the fund;
(iii) compliance with New York State Law
affecting cemeteries;
(iv) priority
of application based upon previous applications; and
(v) availability of monies within the
Fund.
(3) The Cemetery
Board shall apply the following guidelines in authorizing a disbursement for
the maintenance of an abandoned cemetery:
(i)
moneys disbursed shall be used exclusively for the purpose of maintenance of an
abandoned cemetery;
(ii) the costs
of labor and equipment rental or lease for a one time clean-up may be
authorized;
(iii) equipment
purchases that are essential for the maintenance of an abandoned cemetery may
be authorized, provided that disbursements for equipment purchases may not
exceed the price offered by the Office of General Services for the same or
similar equipment pursuant to section
163 of the State Finance Law;
(iv) where equipment is purchased by a
municipality for episodic maintenance of an abandoned cemetery, the pro-rated
share of the purchase costs attributable to cemetery use may be considered for
reimbursement;
(v) labor costs
associated with future cemetery care, preservation and maintenance that are the
legal obligation of a municipality may not be reimbursed;
(vi) moneys disbursed may not be used to pay
for the cost of the ongoing operation of an abandoned cemetery.
(h) Use of
disbursements by a municipality.
(1) The
municipality must apply all disbursements made by the Cemetery Board to the
maintenance of the cemetery as described in the order of the Cemetery Board
authorizing a disbursement.
(2) Any
funds remaining after the maintenance has been performed must be returned to
the Cemetery Board for redeposit into the fund.
(3) Within 90 days of its receipt of
disbursements, the municipality shall make a report to the Cemetery Board
setting forth details of the maintenance and clean-up undertaken, equipment
purchased, and the amount of funds, if any, to be redeposited in the fund. If
the maintenance and clean-up have not been completed, or the equipment
requested has not been purchased, the reasons therefor shall be set forth, and
the anticipated date for a subsequent, final report shall be
disclosed.
(i)
Application for repair or removal of dilapidated or disrepaired monuments that
create a dangerous condition.
(1) An
application for payment by the fund for the repair or removal of monuments or
other markers not owned by the cemetery corporation that have become
dilapidated or are in disrepair so as to create a dangerous condition shall
include the following:
(i) a description of
the damaged monuments or markers, including photographs, and a statement that
the monuments or markers are so badly out of repair or dilapidated as to create
a dangerous condition;
(ii) a copy
of bids submitted by at least two contractors for the cost of repairs, or
removal and replacement;
(iii)
proof that the cemetery corporation has given not less than 60 days notice to
the last known owner to repair or remove the monument or other marker and that
said owner has failed to do so within the time prescribed in said notice. Such
notice shall be addressed to the last known owner or owners and to all persons
having or claiming an interest in or to the burial lot on which the monument or
marker is located. In the event that the last known owner or owners cannot be
found, proof that notice was 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. The notice shall be effective on the date of
mailing such notice by registered or certified mail, or the date of the third
publication in the newspaper; and
(iv) a notarized statement signed by a
cemetery corporation officer that the cemetery corporation has not been able to
obtain sufficient funds from the family of the deceased (include copies of
letters or newspaper advertisements); and that the proposed costs of the
repairs or removals and replacements are fair and reasonable.
(2) Within 90 days of receipt of a
complete application, the Cemetery Board shall make a determination, based upon
the following factors:
(i) whether the
monuments or markers are so badly out of repair or dilapidated as to create a
dangerous condition;
(ii) whether
due notice has been given 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;
(iii)
danger to visiting families;
(iv)
appropriateness of prior use of payments from the fund;
(v) compliance with Not-for-Profit
Corporation Law, article 15 and Cemetery Board rules and regulations;
(vi) priority of application based upon
previous allocations; and
(vii)
availability of monies within the fund.
(j) Use of disbursements for repair or
removal of dilapidated or disrepaired monuments that create a dangerous
condition.
(1) The cemetery corporation must
apply all disbursements made by the Cemetery Board to the repair or removal and
replacement of monuments or other markers as described in the
application.
(2) Any funds
remaining after the repairs or removals and replacements have been performed
must be returned to the Cemetery Board for redeposit into the fund.
(k) Final report. Within 90 days
of its receipt of disbursements, the cemetery corporation shall make a report
to the Cemetery Board setting forth the repairs or removals and replacements
made and by whom, the amount of funds expended, and the amount of funds to be
returned to the Cemetery Board, if any. If any monuments or other markers have
been removed, the report shall include a statement that they have been replaced
with a flush bronze or granite marker suitably inscribed if replacement is
appropriate for identification purposes. If the repairs and removals have not
been completed, the reason therefor shall be set forth, and the anticipated
date for a subsequent, final report shall be disclosed. Such report and any
additional report shall be sworn by a cemetery corporation officer.