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Hiller v. Washington Cemetery

February 16, 2010

BONNIE HILLER, AS THE EXECUTRIX OF THE ESTATE OF IRVING GOTTESMAN, PLAINTIFF-RESPONDENT,
v.
WASHINGTON CEMETERY, DEFENDANT-RESPONDENT, AND BERT GOTTESMAN, DEFENDANT/THIRD-PARTY PLAINTIFF-APPELLANT,
v.
YOUNG BEREGER SICK & BENEVOLENT SOCIETY, THIRD-PARTY DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. C-235-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 11, 2010

Before Judges Lisa and Coburn.

Plaintiff, Bonnie Hiller sued for disinterment of the body of the decedent, Irving Gottesman, so that it can be cremated and the ashes scattered as he himself directed. The primary defendant is decedent's brother Bert Gottesman, who caused decedent's body to be interred in Washington Cemetery, which is located in New Jersey, and who vigorously disputes plaintiff's claim. Plaintiff named Washington Cemetery as a necessary party but made no claim against it other than to permit the exhumation. Bert cross-claimed against Washington Cemetery and filed a third-party complaint against Young Bereger Sick & Benevolent Society ("Young Bereger") in essence demanding that each entity maintain the decedent's grave and defend against any interference with it. Neither Washinton Cemetery nor Young Bereger opposed the relief sought by plaintiff.

After a three-day trial in the Chancery Division, Judge Berman ruled in favor of plaintiff in a written opinion issued on November 12, 2008. Thereafter, Bert moved for a new trial, which was orally denied. Washington Cemetery moved for an assessment of counsel fees and costs against Bert on the ground that his cross-claim was frivolous and Young Bereger moved for assessment of its costs against Bert. During argument on the motions, Bert agreed that if plaintiff ultimately prevailed he would be obliged to reimburse her for the exhumation costs, and it was further agreed that the precise amount of reimbursement should be left open pending the event. The motions were heard and decided on December 22, 2008, on which date judgment was also entered.

The judgment did not refer to the judge's disposition of the new trial motion and no other order was entered respecting that motion. The judgment granted plaintiff the right to have the decedent's body exhumed and cremated and to have his ashes disposed of in accordance with his wishes. In addition, it provided that plaintiff is awarded a judgment and compensatory damages against Defendant Gottesman for all reasonable and customary costs incurred in exhuming the decedent's remains fifteen days after receipt by Defendant Gottesman's counsel of records demonstrating payment of such costs by Mrs. Hiller.

The judgment then stated that if the parties cannot agree on those costs, Hiller can apply to court to amend the judgment.

The judgment dismissed Bert's claims against Washington Cemetery and Young Bereger and granted the former $12,603.75 in fees and costs and the latter $1,561.50 in costs. Lastly, the judgment provided that it be stayed pending appeal.

I.

Irving was born in Germany in 1947 and Bert was born two years later in Brooklyn, where the family then resided. Although they were raised as Orthodox Jews, Irving, unlike his brother Bert, did not remain observant after his early years. Irving married twice and divorced. He had two children by his second wife; they were still minors when he died. Irving and Bert mostly saw each other from time to time at family gatherings. When they spoke, they often argued about religion. When Irving died, Bert was his closest adult relative.

Irving met Bonnie Hiller in 2000 or 2001 and they became romantically involved. They lived nearby, speaking daily and seeing each other two or three times a week.

In March 2007, Irving was diagnosed with bladder cancer and hospitalized in New York City. He and Hiller began talking about his funeral arrangements. He rejected her suggestions that he be buried in Washington Cemetery near his parents' graves or on Long Island near his children. Hiller then recalled that Irving had talked about the positive experience his children had while attending the scattering of his father-in-law's ashes and suggested cremation and spreading of his ashes near Sunset Lake in Foxboro, Massachusetts. He had often visited her there at her summer residence. Irving agreed and they decided that his wishes should be written. In May 2007, Hiller told Bert that Irving wanted to be cremated, which upset Bert. On May 21, 2007, Hiller prepared the following letter for Irving:

I have spoken with my friend Ms. Bonnie Hiller concerning final plans for me and for my remains in the event of my death. She knows my ...


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