Monday, January 17, 2011

Court Case Ongoing in Cemetery Dispute by Bryan Yurcan - Queens Chronicle

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Litigation concerning the state of Bayside Cemetery in Ozone Park may not be ending anytime soon.

John Lucker of Connecticut and his attorney, Michael Buchman, brought a lawsuit in federal court in 2007 against Congregation Shaare Zedek, which owns the cemetery, for not maintaining its grounds and the graves.

That lawsuit was dismissed in 2009 for lack of federal jurisdiction, but shortly thereafter was refiled in state Supreme Court.

Now, Buchman is planning on filing another suit with a different plaintiff against the congregation, in conjunction with the ongoing suit, in the latest legal battle over the state of Bayside.

Lucker and Buchman have argued that the congregation committed a breach of contract for failing to maintain perpetual care of the plots. Located off Liberty Avenue, Bayside has been dogged by years of neglect, with overgrown weeds and vines covering cracked headstones that had fallen into disrepair.

Lucker’s grandmother purchased a perpetual care plot, and upon visiting the cemetery several years ago and seeing the state of the grounds, he was prompted to take legal action.

“It’s a very simple case involving breach of contract,” said Buchman.

The attorney also says the Congregation publicly admitted to co-mingling the cemetery’s funds with those of the synagogue.

Congregation Shaare Zedek declined to comment for this article due to the ongoing litigation, but attorneys for the synagogue have argued that the suit should be dismissed on the grounds that the plaintiffs cannot legally act in a representative capacity to their deceased relatives.

Buchman disagrees with that premise, and also noted that the plaintiff in the new suit he plans on filing is someone who purchased a perpetual care contract at the cemetery directly from the synagogue, not a relative of one.

Also named in the current suit as a defendant is the Community Association for Jewish At-Risk Cemeteries, a group formed in 2006 as Friends of Bayside Cemetery.

CAJAC is currently engaged in a clean-up effort at the cemetery, in part due to a grant from the United Jewish Appeal-Federation of New York, which was used to hire a landscaper to help refurbish the cemetery grounds, and volunteer efforts.

Buchman, however, contends that CAJAC was created by Congregation Shaare Zedek as a way to divest responsibility for the cemetery, and that it is not the legal owner of Bayside and doesn’t have the means to maintain it.

“Thecemetery needs to be maintained in perpetuity, and CAJAC doesn't have money to do that,” he said.

A CAJAC official previously told the Chronicle the group believes it can ensure the long-term maintenance of the cemetery.


Copy of email I received from the above-mentioned John Luckner:

Can you please post this as additional material for your Blog post about Bayside Cemetery?  Thanks!

In the recent article “Respecting the Dead at Bayside” dated 12/23/2010, I was disappointed to see the Queens Chronicle publish an article that was based on insufficient research.  I am the lead plaintiff in the lawsuit “Lucker et al vs. Congregation Shaare Zedek, Bayside Cemetery and Community Association for Jewish At-Risk Cemeteries” which was filed in NY State Supreme Court on October 22, 2009.  The lawsuit and all related material are available on the Internet  This lawsuit is the second lawsuit filed as the first lawsuit was dismissed for federal jurisdictional reasons from Federal court.  The Queens Chronicle reporter unfortunately did not capture both sides of the Bayside Cemetery matter.

Here are some additional corrections and facts regarding Bayside Cemetery from the article:

* The original Federal lawsuit was filed on Sept 12, 2007 and not in 2008 as reported in the article.

* The Federal lawsuit was dismissed on Sept 30, 2009 on class action jurisdictional grounds but was re-filed on October 22, 2009 in NY State Supreme Court.  It remains an active lawsuit to this day with the addition of Community Association for Jewish At-Risk Cemeteries (CAJAC) as a Co-Defendant.

* The article incorrectly reported the name of CAJAC.  CAJAC stands for the “Community Association for Jewish At-Risk Cemeteries”.

* The article reports that the condition of Bayside Cemetery was “not the fault of Congregation Shaare Zedek, which did not have the means to continue its upkeep”.  From my perspective this statement is absolutely untrue.  Congregation Shaare Zedek was paid by hundreds, and potentially thousands, of families for Perpetual Care at the cemetery and the congregation wrote contracts for that perpetual care.  Many of these documents have been disclosed by the synagogue during the lawsuit.  Up until recent years, the congregation was selling these maintenance contracts and the synagogue was paid for maintenance and perpetual care of graves at Bayside Cemetery.  Therefore, the neglect and disrespect on display at the cemetery is clearly the fault of Congregation Shaare Zedek.  The congregation has even admitted in the media that they used monies paid for cemetery care for other purposes at the synagogue – which is an improper, and potentially illegal, use of trust fund money paid for cemetery perpetual care.

* The article continues by reporting the words of the CAJAC director who gives a history lesson of sorts about how the congregation “sold parts of the property to various organizations or individuals” for burial.  This is not how it works when someone buys a burial plot.  When a burial plot is sold, a person, family, or burial society buys the right to use a piece of the cemetery for a burial.  A real estate transaction does not take place.  The owner of the cemetery, in this case the congregation, continues to be the owner of the cemetery and continues to own the plot of land to be used for burial.  Any statements about how other people or burial societies bought parts of the cemetery are not true.

* If the congregation were to claim that they sold the property to people for burials, then why did the congregation sell perpetual care contracts for those same plots?  How could they sell such contracts for property that they also claim they don’t own?  The congregation took people’s money and issued a contract with a promise to maintain the property forever.  This is not a fact that can be disputed.  I have copies of many of these contracts and some are filed as exhibits in the lawsuit posted on

* It seems curious that CAJAC states “[once Bayside Cemetery is cleaned up] CAJAC’s role will be to ensure the long-term maintenance of the cemetery”.  Why would CAJAC assume this responsibility when Congregation Shaare Zedek owns Bayside Cemetery and is financially responsible for maintaining the cemetery and has been paid for Perpetual Care services at the cemetery?

In summary, there are considerable facts and information that would have made this Queens Chronicle article more factually and contextually correct.  I hope that for the next article about Bayside Cemetery, the Queens Chronicle will contact me for additional information about this very important moral, ethical and legal matter.

John Lucker
Simsbury, CT