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Weiss v. Cedar Park Cemetery

Decided: April 12, 1990.

GERALDINE WEISS AND JEFFREY J. WEISS, PLAINTIFFS-APPELLANTS,
v.
CEDAR PARK CEMETERY, PHYLLIS RATAFIA WEISS, LILLIAN RATAFIA, JANE DOES 1 AND 2, AND RIVERSIDE CHAPEL, DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Law Division, Bergen County.

Petrella, Havey and Stern. The opinion of the court was delivered by Petrella, P.J.A.D.

Petrella

Plaintiffs, Geraldine Weiss, surviving spouse of one of two original co-owners of a cemetery plot in defendant Cedar Park Cemetery (Cedar Park), and her son Jeffrey J. Weiss, appeal from the entry of summary judgments in defendants' favor dismissing their suit based on the claimed wrongful interment of Louis Ratafia, father of defendant Phyllis Ratafia Weiss. On appeal plaintiffs contend that genuine issues of material fact should have precluded summary judgment. They also argue that as a matter of law not only were defendants not entitled to judgment, but that an earlier unopposed motion for summary judgment, granted in favor of defendant Cedar Park, should be vacated. We affirm.

This dispute, between what we can refer to loosely as an extended "family" since almost all the individual participants

are related by either blood or marriage,*fn1 began by the filing of a complaint on April 1, 1985, alleging various causes of action. Plaintiffs alleged that Phyllis Ratafia Weiss, her mother Lillian, and Phyllis's two sisters ("Jane Does 1 and 2") (the Ratafia defendants), wrongfully conspired to obtain the burial of Phyllis's father, Louis, in a cemetery plot which they alleged was owned by Norman Weiss. They charged the Ratafia defendants with conduct which inflicted mental, emotional and physical harm upon them. Plaintiffs also alleged fraud and misrepresentation was used to obtain the burial of Louis Ratafia in the Weiss plot. They also asserted that Cedar Park was negligent in permitting the unauthorized burial of Louis Ratafia; that Riverside Chapel in New York (Riverside) was negligent in causing Louis Ratafia to be buried in the Weiss cemetery plot without permission and in accepting and using a forged authorization form in connection with the burial; that Cedar Park Cemetery was in breach of contract by burying Louis Ratafia in the Weiss cemetery plot without permission; and that plaintiffs would "suffer irreparable injury" unless all of the defendants were required to have the body of Louis Ratafia removed from the cemetery plot. Essentially, all of these allegations were contested factually as well as on legal grounds.

Cedar Park's motions for summary judgment and for dismissal of all punitive damages claims were denied in 1986 and 1987, respectively, apparently on the ground of incomplete discovery. On July 24, 1987 Cedar Park moved again for summary judgment

dismissing all complaints and cross-claims except for Jeffrey Weiss's claim with respect to his conversations with a Cedar Park representative on the date of the funeral and burial of his father in the subject funeral plot.*fn2

The Ratafia defendants moved for summary judgment in June 1988. Riverside joined in that motion. The motion was heard on September 16, 1988, and granted as to all defendants. A written order incorporating by reference the judge's opinion was entered that date.*fn3

The facts are gleaned from the record*fn4 on the motions, including answers to interrogatories and deposition transcripts.*fn5 Some of the facts are disputed and the issue is whether they are material facts sufficient to defeat a summary judgment motion. For clarity in understanding the problem we will at times refer to some controverted facts, recognizing that on a summary judgment motion the party opposing the motion is entitled to all the reasonable inferences from the facts presented. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75, 110 A.2d 24 (1954).

On February 15, 1948 two brothers, Norman and Mortimer

Weiss, purchased a burial plot containing eight grave sites*fn6 at the Cedar Park Cemetery in Emerson. The conveyance was to both brothers and "their heirs and assigns, forever. . . ."

Mortimer Weiss died on October 6, 1957 and was buried in one of the plots, authorization for which was executed by the surviving original co-owner, Norman. Mortimer was survived by his two sons, Joseph Weiss and Thomas Weiss, who inherited equal halves of their father's estate pursuant to his will. Although Mortimer's will, dated August 29, 1955, made no specific disposition with respect to the cemetery plot, it recited his desire to "be interred in a plot in the Cedar Park Cemetery located in New Jersey and commonly owned by my brother Norman and myself."*fn7

In 1958 or 1959 Mortimer's son Joseph married defendant Phyllis Ratafia. Plaintiffs strongly disapproved of the marriage and apparently attempted to dissuade Joseph from marrying Phyllis for various reasons. Plaintiffs were said to have "despised Louis and Phyllis Ratafia," and had little to do with Joseph and his family. Joseph died on October 26, 1973 and was buried in the family plot in Cedar Park on October 28, 1973. The authorization for his interment was signed by his uncle, Norman Weiss. Joseph was survived by his wife, Phyllis Ratafia Weiss, and two children, Michael and Geniene, all of whom are defendants.

Louis Ratafia, Phyllis's father, died on November 10, 1983 and was buried from defendant Riverside Chapel. Phyllis was told that she needed a burial authorization, but she testified in depositions that she did not obtain it. There was a statement that someone at Riverside indicated there would be a paper for

Phyllis' son to sign, but she said no one approached her or her son about it. Nevertheless, apparently an authorization was executed on November 14, 1983, bearing what purports to be the misspelled signature of Norman Weiss. Phyllis also testified that she was told on several occasions by women employees of Cedar Park that she was entitled, as Joseph's wife, to be buried in the family plot and her children, as Joseph's heirs, would be co-owners of the plot. Although she received "legal papers" from the cemetery which she was supposed to have filled out in order to have their children listed as heirs to Joseph's portion of the Weiss plot, she did not complete it because she did not have the $25 filing fee. Phyllis said she was unaware that after Mortimer's death the only name Cedar Park showed on its records as able to authorize a burial in the plot was Norman Weiss.

Chester Grafkowski, an employee of Riverside, indicated that it is normal procedure for the chapel to obtain from the cemetery the name of the individual authorized to order burial in the plot. In Louis Ratafia's case, Grafkowski called the cemetery and was informed that Norman Weiss had to authorize the burial. He said he printed Norman's name on the authorization form which he then gave to the family to have signed. Next to the printing he wrote "family getting," indicating that the family was to obtain the signature. The form was not signed in his presence.

Herbert Klapper, vice-president of Cedar Park, stated that normally the funeral director calls the cemetery and places an order for a grave opening. When this occurs a cemetery employee checks the files to locate the grave site and obtains details from the funeral director over the telephone. The funeral director is then instructed to bring with him a board of health certificate and a document entitled, "authorization for burial," which is to be presented when he comes to the office and signs the interment order. The authorization for ...


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