§ 1509 — Cemetery rules and regulations; charges and lot tax assessments

§ 1509. Cemetery rules and regulations; charges and lot tax assessments.\n (a) Rules and regulations. The directors of a cemetery corporation\nshall make reasonable rules and regulations for the use, care,\nmanagement and protection of the property of the corporation and of all\nlots, plots and parts thereof; for regulating the dividing marks between\nthe lots, plots and parts thereof; for prohibiting or regulating the\nerection of structures upon such lots, plots or parts thereof; for\npreventing unsightly monuments, effigies and structures within the\ncemetery grounds, and for the removal thereof; for regulating the\nintroduction and care of plants, trees and shrubs within such grounds;\nfor the prevention of the burial in a lot, plot or part thereof, of a\nbody not entitled to burial therein; for regulating or preventing\ndisinterments; for regulating the conduct of persons while within the\ncemetery grounds; for excluding improper persons and preventing improper\nassemblages therein. The directors may prescribe penalties for the\nviolation of any such rule or regulation, not exceeding twenty-five\ndollars for each violation, which shall be recoverable by the\ncorporation in a civil action.\n (b) Charges for services. The directors of a cemetery corporation\nshall fix and make reasonable charges for any acts and services ordered\nby the owner and rendered by the corporation in connection with the use,\ncare, including perpetual, annual and special care, management and\nprotection of lots, plots and parts thereof. In determining said charges\nthe directors shall consider the propriety and the fair and reasonable\ncost and expense of rendering the services or performing the work for\nwhich such charges are made.\n (c) Cemetery board approval. (1) A cemetery corporation's rules,\nregulations and original charges shall not become effective unless and\nuntil approved by the cemetery board as hereinafter provided. (2) The\ndirectors of any cemetery corporation, organized on or before August\nthirty-first, nineteen hundred forty-nine, shall file in the office of\nthe cemetery board the name and address of the corporation together with\nits rules, regulations and charges, and a statement showing the basis\nupon which they were made, within ninety days after the time this\nsection as hereby amended takes effect. The directors of any cemetery\ncorporation organized on or after September first, nineteen hundred\nforty-nine, shall file in the office of the cemetery board the name and\naddress of the corporation together with its rules, regulations and\ncharges, and a statement showing the basis on which they were made,\nwithin ninety days after the date of the filing of the certificate of\nincorporation in the department of state. (3) Within six months after\nthe date of such filing, the cemetery board shall make and file in its\noffice an order approving, disapproving or amending such rules,\nregulations and original charges in whole or part. Such rules,\nregulations and charges, if approved with or without amendment, shall\nbecome effective as approved upon the filing of such order by the\ncemetery board in its office. The cemetery board shall notify the\ndirectors of the action taken by it and its reasons therefor by\nregistered mail addressed to the corporation at its principal office. In\nmaking its determination as to the schedule of charges the cemetery\nboard shall consider the propriety and the fair and reasonable cost and\nexpense of rendering the services or performing the work for which such\ncharges are made. In passing upon the rules and regulations, the\ncemetery board shall consider the interests of the members of the\ncorporation and the public interest in the proper maintenance and\noperation of burial grounds. (4) The rules, regulations and charges of\nany cemetery corporation existing on or before August thirty-first,\nnineteen hundred forty-nine, shall remain in effect until the cemetery\nboard files in its office an order pursuant to the provisions of\nsubdivision three hereof. A cemetery corporation organized on or after\nSeptember first, nineteen hundred forty-nine, may enforce the rules,\nregulations and charges filed by it in the office of the cemetery board\nuntil the cemetery board files in its office an order pursuant to the\nprovisions of subdivision three hereof.\n (d) Services not in list of charges. In the event that a cemetery\ncorporation provides any services not included in the list of charges,\nand for which a charge cannot reasonably be fixed in advance, the\ncharges made therefor shall be reviewable by the cemetery board. In the\nevent that the cemetery board determines that an excessive, unauthorized\nor improper charge has been made for such services or that the services\nhave not been properly performed, it may direct the cemetery corporation\nto pay to the person from whom such charge was collected a sum\nequivalent to three times the amount of the excess as determined by the\ncemetery board, or in the case of work not properly performed, it may\ndirect the cemetery corporation to perform the work properly.\n (e) Amendment and modification. (1) The rules and regulations of a\ncemetery corporation may be amended or added to by the corporation by\nfiling such proposed amendments or additions in the office of the\ncemetery board but no such amendment or addition shall be effective\nunless and until an order approving such amendments or additions is made\nby the cemetery board and filed in its office in the same manner as that\napplicable to the original filing of the rules, regulations and charges\nof the cemetery corporation. (2) The charges of a cemetery corporation\nmay be amended or added to by the corporation by filing an application\ncontaining such proposed amendment or addition in the office of the\ndivision of cemeteries and shall be processed in accordance with\nsubparagraph three of this paragraph. The cemetery board shall consider\nthe propriety and the fair and reasonable costs and expense of rendering\nthe services or performing the work for which such charges are made. The\neffective rules, regulations or charges of a cemetery corporation may be\namended, modified or vacated by the cemetery board at any time. The\ncemetery board shall notify the directors of the action taken by it and\nits reasons therefor by registered or certified mail addressed to the\ncorporation at its principal office. In amending, modifying or vacating\nany rule, regulation or charge, the cemetery board shall be guided by\nthe standards set forth in subparagraph three of paragraph (c) of this\nsection. (3) Any application setting forth the proposed amendment of, or\naddition to, the charges of a cemetery corporation as provided for by\nsubparagraph two of this paragraph shall be processed in accordance\neither with clauses A, B and C of this subparagraph or in accordance\nwith clause D of this subdivision.\n A. Within thirty-five days following receipt of the application, the\nboard or the division may request from the cemetery corporation any\nadditional information or documentation deemed necessary to complete\nsuch application, and such application shall not be complete for the\npurposes of compliance with this subparagraph until the requested\ninformation has been received. If no such request is made, the\napplication shall be deemed to be complete on the thirty-fifth day after\nits receipt by the division.\n B. An application setting forth the proposed amendment of, or addition\nto, the charges of a cemetery corporation shall be deemed to be approved\nfor any cemetery corporation holding, including unrestricted funds, cash\nand investments totalling less than four hundred thousand dollars, if\nthe board does not object to the proposed charges within sixty days\nfollowing: (i) the date on which the application shall have been deemed\nto be complete or (ii) the date on which the requested information\nnecessary to complete the application shall have been received,\nwhichever is later. If the board objects to the proposed charges, it\nshall notify the directors in writing with the reasons therefor, such\nnotice to be mailed by registered or certified mail to the corporation\nat its principal office, not less than three business days before the\nend of such sixty day period. If the board approves such amendment of or\naddition to the charges, it shall do so by order.\n C. An application setting forth the proposed amendment of, or addition\nto, the charges of a cemetery corporation shall be deemed to be approved\nfor any cemetery corporation holding, including unrestricted funds, cash\nand investments totalling more than four hundred thousand dollars, if\nthe board does not object to the proposed charges within ninety days\nfollowing: (i) the date on which the application shall have been deemed\nto be complete or (ii) the date on which the requested information\nnecessary to complete the application shall have been received,\nwhichever is later. If the board objects to the proposed charges, it\nshall notify the directors in writing with the reasons therefor, such\nnotice to be mailed by registered or certified mail to the corporation\nat its principal office, not less than three business days before the\nend of such ninety day period. If the board approves such amendment of\nor addition to the charges, it shall do so by order.\n D. A cemetery may apply to the cemetery board for an increase in any\nor all of its approved charges by submitting a schedule to the cemetery\nboard showing its currently approved charges and the proposed charges\nafter applying the employment cost index to said charges as it appears\nin the United States Department of Labor, Bureau of Labor Statistics,\nSeries ECU10001A, not seasonally adjusted, total compensation, civilian,\ntwelve month percent change for all workers schedule or any subsequent\nschedule that may be adopted by the United States Department of Labor,\nBureau of Labor Statistics, as a replacement for the aforementioned\nschedule. Any application by a cemetery under this subparagraph will\nprohibit application under subparagraph two of this paragraph for one\nyear from the effective date of the approved increase under this\nsubparagraph. An application setting forth the proposed changes in\ncharges shall be deemed to be approved if the board does not object to\nthe proposed charges within sixty-days following the date on which the\napplication is submitted by a cemetery. If the board objects to the\nproposed charges, it shall notify the directors in writing with the\nreasons therefore, such notice to be mailed to the corporation at its\nprincipal office, not less than three business days before the end of\nsuch sixty day period. If the board approves such amendment of or\naddition to the charges, it shall do so by order. The cemetery board\nshall not approve application by a cemetery under this subparagraph if\n(i) the proposed percentage increases exceed the employment cost index\npercentages as provided in this subparagraph; (ii) there have been\ninvasions of the permanent maintenance fund by the cemetery that have\nnot been repaid or are not currently being repaid; (iii) the cemetery is\ncurrently not in compliance with any court order or any cemetery board\norder that is not under judicial review under paragraph (d) of section\n1504; (iv) the cemetery has not filed in a timely manner its annual\nreports with the division of cemeteries as required under section 1508\n(Reports by cemeteries); (v) all assessments as required under paragraph\n(c) of section 1508 (Reports by cemeteries) and vandalism fund payments\nas required under subparagraph two of paragraph (h) of section 1507\n(Trust funds) have not been paid.\n (f) Lot tax assessment. (1) If the funds of a cemetery corporation\napplicable to the improvement and care of its cemetery, or applicable to\nthe construction of a receiving vault therein for the common use of lot\nowners, be insufficient for such purposes, the directors of the\ncorporation, not oftener than once in any year and for such purposes\nonly, may, upon the prior approval of the cemetery board, which shall\ndetermine the necessity and propriety thereof, levy a tax on some basis\nto be determined by the directors of such corporation, but no such tax\nshall exceed two dollars on any one lot, except that with the written\nconsent of two-thirds of the lot owners or by the vote of a majority of\nthe lot owners present at an annual meeting, or at a special meeting\nduly called for such purpose, such tax may be for an amount which shall\nnot exceed a total of five dollars per annum per lot, and the tax on any\none lot shall not exceed five dollars per annum but the taxes may be\nlevied upon each lot in the first instance for a sum sufficient for the\nimprovement and care of the lot, but no greater sum than five dollars\nshall be collected in any one year. The whole tax levied may be\ncollected in sums of five dollars in successive years in the manner\nherein provided. (2) Notice of such tax shall be served on the lot\nowners or where two or more persons are owners of the same lot, on one\nof them, either personally, or by leaving it at his residence, with a\nperson of mature age and discretion, or by mail, if he resides in a\ncity, town or village where the office of the corporation is not\nlocated, or in case the residence or whereabouts of the owner cannot be\nascertained, by publication once a week for four successive weeks in a\nnewspaper published in the town where such cemetery is located, or if no\nnewspaper is published in such town then in some newspaper published in\nthe county where such cemetery is located. (3) If such tax remain unpaid\nfor more than thirty days after the service of such notice, the\npresident and secretary of the corporation may issue a warrant to the\ntreasurer of the corporation, requiring him to collect such tax in the\nsame manner as school collectors are required to collect school taxes;\nand such treasurer shall have the same power and be subject to the same\nliabilities in executing such warrant as a collector of school taxes has\nor is subject to by law in executing a warrant for the collection of\nschool taxes. (4) If the taxes so levied remain unpaid for five years\nafter the levying of such tax the amount thereof with interest shall be\na lien on the unused portion of the lot which is subject to such tax,\nand no portion of the lot so taxed shall be used by the owner thereof\nfor burial purposes, while any such tax remains unpaid. (5) If at the\nexpiration of five years from the date of the service of the first\nnotice of assessment as herein provided, any such assessment or the\ninterest thereon shall remain unpaid, the corporation may sell the\nunused portion of such lot at public auction upon the cemetery grounds,\nin the following manner: If the person owning such lot resides within\nthe state, a written notice, under the seal of such cemetery\ncorporation, if it have a seal, and the hand of the president or\nsecretary thereof, stating the amount of such tax or taxes unpaid and\nthat such unused portion of such lot will be sold at a time therein to\nbe specified, not less than twenty days from the date of the service of\nsuch notice, shall be personally served upon such owner; if such owner\nis not a resident of the state, or if the place of his residence cannot\nwith due diligence be ascertained, or if, for any other reason\nsatisfactory to the court, personal service cannot with due diligence be\nmade upon such owner, such cemetery corporation, or any of its officers,\nmay present a duly verified petition stating the facts to the county\ncourt of the county in which such cemetery lands are situated, or to the\nsupreme court, and such court may upon satisfactory proof, by its order,\ndirect the service of such notice in the manner provided by the civil\npractice law and rules for the substituted service of a summons. The\npresident or secretary of such corporation, or any suitable and proper\nperson appointed by it or by the court, upon filing proof of publication\nand service of such notice as provided by section three hundred fourteen\nof the surrogate's court procedure act may make such sale, and such sale\nmay be adjourned from time to time for the accommodation of the parties\nor for other proper reasons. Previous notice of such sale shall be\nposted at the main entrance of the cemetery. Prior to such sale such\ncorporation shall cause such lot to be resurveyed and replotted showing\nthe part thereof not used for burial purposes and only such unused\nportion shall be sold. The cemetery corporation may at any such sale\npurchase any such lots or parts of lots. The surplus remaining after\npaying all assessments, interest, cost and charges shall be set aside by\nthe corporation, as a fund for the care and improvement of the portion\nof such lot that has been used for burial purposes. In case the proceeds\nof such sale shall amount to more than thirty dollars the person making\nit shall make his report, under oath, to the court, of the proceedings\nand shall state the amount for which such lot was sold and that it was\nsold to the highest responsible bidder, together with the names of the\npurchasers, and the court may and in a proper case shall, by order,\nconfirm the sale; in all other cases the person making such sale shall\nfile in the office of the county clerk of the county in which the\ncemetery lands are situated a like report duly verified; on the filing\nof such order of confirmation or such report, as the case may be, the\nownership of the unoccupied portion of such lot shall vest in the\npurchaser thereof. (6) The directors of any such corporation may make a\ncontract with a lot owner which shall provide for the payment by him of\nan agreed gross sum in lieu of further taxes and assessments and that\nupon the payment of such gross sum the lot of such owner shall be\nthereafter exempt from taxes and assessments.\n (g) Purchases through office of general services. Notwithstanding the\nprovisions of any general, special or local law, any officer or agent of\na cemetery corporation subject to the provisions of this article\nauthorized to make purchases of commodities and services may make such\npurchases through the office of general services subject to such rules\nas may be established from time to time pursuant to section one hundred\nsixty-three of the state finance law; provided that any such purchase\nshall exceed five hundred dollars and that the cemetery corporation for\nwhich such officer or agent acts shall accept sole responsibility for\nany payment due the vendor. All purchases shall be subject to audit and\ninspection by the cemetery corporation for which made. Two or more\ncemetery corporations may join in making purchases pursuant to this\nsection and, for the purposes of this section, such groups shall be\ndeemed a cemetery corporation.\n