Benjamin v. Cannold

220 A.D.2d 714, 633 N.Y.S.2d 197, 1995 N.Y. App. Div. LEXIS 10612

Opinion

—In an action for a judgment declaring that the plaintiff is entitled to have her married name, "Benjamin”, inscribed on the facade of the Cannold family mausoleum, the defendant David L. Cannold appeals from an order of the Supreme Court, Westchester County (Collabella, J.), entered December 23, 1994, which denied his motion for summary judgment.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Westchester County, for entry of a judgment declaring that the plaintiff is not entitled to have her married name, "Benjamin”, inscribed on the facade of the Cannold family mausoleum.

The Cannold family mausoleum was built by Sidney Cannold. Upon his death, ownership devolved to the plaintiff and her brother, the appellant David L. Cannold. Under the governing statute, as well as the regulations of the cemetery where the mausoleum is located, the plaintiff has no legally cognizable right to alter the mausoleum’s facade without her brother’s consent (see, Not-For-Profit Corporation Law § 1512 [a], [b]; Rules & Regulations of Mount Pleasant Westchester Cemetery Corp. art VIII). Accordingly, the appellant’s motion for summary judgment should have been granted. Bracken, J. P., Santucci, Joy and Friedmann, JJ., concur.