N.Y. Comp. Codes R. & Regs. tit. 19 § 200.11

Current through Register Vol. 46, No. 43, October 23, 2024

Section 200.11 - State cemetery vandalism restoration, monument repair or removal and administration fund

(a) Definitions.

(1) Vandalism means the willful or malicious destruction or defacement of property in a cemetery, including, but not limited to, the toppling of memorial stones, damage to crypts, niches, grave sites, monuments and memorials.

(2) Abandoned cemetery means a cemetery maintained by a municipality pursuant to law, including but not limited to one maintained by a town pursuant to Town Law, section 291 or by a county pursuant to County Law, section 222(5-a), which cemetery was previously owned by a cemetery corporation organized pursuant to the Not-for-Profit Corporation Law or existing by virtue of the Membership Corporation Law, for which there no longer exists any corporate board or body to maintain it, and for which there is no sufficient trust fund or endowment to provide ordinary and necessary care and maintenance.

(3) Municipality means a city, county, town or village.

(4) Maintenance means the ordinary and necessary care of a cemetery, including the removal of grass and weeds, and the preservation, care and fencing of a cemetery, and also including the care of crypts, niches, grave sites and monuments and memorials paid for by means of the general fund or special fund or the income applied from the permanent maintenance fund, perpetual care fund, monument maintenance fund, general fund, or a special fund.

(5) Qualifying damage means damage caused by an act or acts of vandalism that cannot be repaired by means of regular maintenance.

(6) Fund means the fund created by Not-for-Profit Corporation Law, section 1507(h) and State Finance Law, section 97-r.

(b) Payment of contributions. On or before March 15th of each year, every cemetery or crematory that has performed an interment or cremation during the preceding calendar year shall submit a check drawn to the order of the Department of State in the total amount of monies collected during said period toward payment to the fund. Such check shall be accompanied by a statement signed by a cemetery officer certifying the number of interments or cremations and the amount transmitted. The contribution shall be $5 per interment or cremation. No contribution shall be collected upon the interment of the cremains of a deceased person where a contribution was collected upon cremation.

(c) Initial report of vandalism. Within 30 days of the discovery of a qualifying act of vandalism, the cemetery shall:

(1) report such act to the Division of Cemeteries either verbally or in writing; and

(2) in the event that damage was done to a crypt, niche, grave site, monument or memorial, provide written notice to the lot owner or next of kin, if the identity and whereabouts of such individual is reasonably ascertainable. Such notice shall include a brief description of the damaged property and a request for funds for its repair. The notice shall also advise the lot owner or next of kin to seek insurance benefits that may be available pursuant to a homeowner's insurance policy. A copy of such notice shall be maintained by the cemetery.

(d) Application for payment for repair of vandalism damage.

(1) The completed application shall be submitted within six months of the date of discovery of the act of vandalism.

(2) A cemetery may, for good cause and within the above-described time period, request a definite extension of time to file a vandalism application. Such request shall be in writing and state the reasons therefor, including the date by which it is anticipated that the application will be filed.

(3) The application shall include the following:

(i) a description of the qualifying damage, photographs, and the date that the report of damage was filed with the Division of Cemeteries;

(ii) a copy of such other reports filed in accordance with law;

(iii) a copy of bids submitted by at least two contractors for the cost of repairs; and

(iv) a notarized statement signed by a cemetery officer that the cemetery has no available funds which it is authorized to use for the purpose of the repair; that it has not been able to obtain sufficient funds from the family of the deceased (include copies of letters or newspaper advertisements); and that the proposed costs of the repairs are fair and reasonable.

(4) Within 90 days of receipt of a complete application, the Cemetery Board shall make a determination, based upon the following factors:

(i) whether there is qualifying damage;

(ii) severity of the damage;

(iii) whether the vandalism is part of a wave of vandalism;

(iv) emotional distress to visiting families;

(v) appropriateness of prior use of payments from the fund;

(vi) compliance with Not-for-Profit Corporation Law, article 15 and Cemetery Board rules and regulations;

(vii) priority of application based upon previous allocations; and

(viii) availability of monies within the fund.

(e) Use of disbursements for vandalism.

(1) The cemetery must apply all disbursements made by the Cemetery Board to the repair of the vandalized property described in the vandalism application.

(2) Any funds remaining after the repairs have been performed must be returned to the Cemetery Board for redeposit into the vandalism fund.

(f) Final report. Within 90 days of its receipt of disbursements, the cemetery shall make a report to the Cemetery Board setting forth the repairs made and by whom, the amount of funds expended, and the amount of funds to be returned to the Cemetery Board, if any. If the repairs have not been completed, the reason therefor shall be set forth, and the anticipated date for a subsequent, final report shall be disclosed. Such report and any additional report shall be sworn by a cemetery officer.

(g) Application for maintenance of abandoned cemeteries.

(1) An application for reimbursement for the fair and reasonable expenses for maintenance may be made on behalf of an abandoned cemetery by the municipality in charge of the maintenance of such cemetery. Such application shall include:

(i) a certification from the municipality of the current status of the cemetery with respect to abandonment; the funds of the cemetery and the investment income therefrom; donations, if any; whether the cemetery currently sells lots or graves or performs interments or cremations, and if so, the annual number and the total revenue;

(ii) the proposed amount and purpose of the disbursement; and

(iii) the contribution of the municipality and others, if any, with respect to the maintenance of the cemetery.

(2) Within 60 days of receipt of a complete application, the Cemetery Board shall make a determination, based upon the following:

(i) severity of conditions;

(ii) when applicable, appropriateness of use of prior payments from the fund;

(iii) compliance with New York State Law affecting cemeteries;

(iv) priority of application based upon previous applications; and

(v) availability of monies within the Fund.

(3) The Cemetery Board shall apply the following guidelines in authorizing a disbursement for the maintenance of an abandoned cemetery:

(i) moneys disbursed shall be used exclusively for the purpose of maintenance of an abandoned cemetery;

(ii) the costs of labor and equipment rental or lease for a one time clean-up may be authorized;

(iii) equipment purchases that are essential for the maintenance of an abandoned cemetery may be authorized, provided that disbursements for equipment purchases may not exceed the price offered by the Office of General Services for the same or similar equipment pursuant to section 163 of the State Finance Law;

(iv) where equipment is purchased by a municipality for episodic maintenance of an abandoned cemetery, the pro-rated share of the purchase costs attributable to cemetery use may be considered for reimbursement;

(v) labor costs associated with future cemetery care, preservation and maintenance that are the legal obligation of a municipality may not be reimbursed;

(vi) moneys disbursed may not be used to pay for the cost of the ongoing operation of an abandoned cemetery.

(h) Use of disbursements by a municipality.

(1) The municipality must apply all disbursements made by the Cemetery Board to the maintenance of the cemetery as described in the order of the Cemetery Board authorizing a disbursement.

(2) Any funds remaining after the maintenance has been performed must be returned to the Cemetery Board for redeposit into the fund.

(3) Within 90 days of its receipt of disbursements, the municipality shall make a report to the Cemetery Board setting forth details of the maintenance and clean-up undertaken, equipment purchased, and the amount of funds, if any, to be redeposited in the fund. If the maintenance and clean-up have not been completed, or the equipment requested has not been purchased, the reasons therefor shall be set forth, and the anticipated date for a subsequent, final report shall be disclosed.

(i) Application for repair or removal of dilapidated or disrepaired monuments that create a dangerous condition.

(1) An application for payment by the fund for the repair or removal of monuments or other markers not owned by the cemetery corporation that have become dilapidated or are in disrepair so as to create a dangerous condition shall include the following:

(i) a description of the damaged monuments or markers, including photographs, and a statement that the monuments or markers are so badly out of repair or dilapidated as to create a dangerous condition;

(ii) a copy of bids submitted by at least two contractors for the cost of repairs, or removal and replacement;

(iii) proof that the cemetery corporation has given not less than 60 days notice to the last known owner to repair or remove the monument or other marker and that said owner has failed to do so within the time prescribed in said notice. Such notice shall be addressed to the last known owner or owners and to all persons having or claiming an interest in or to the burial lot on which the monument or marker is located. In the event that the last known owner or owners cannot be found, proof that notice was given by publishing the same once each week for three consecutive weeks in a newspaper published or circulated in the county in which the cemetery is located. The notice shall be effective on the date of mailing such notice by registered or certified mail, or the date of the third publication in the newspaper; and

(iv) a notarized statement signed by a cemetery corporation officer that the cemetery corporation has not been able to obtain sufficient funds from the family of the deceased (include copies of letters or newspaper advertisements); and that the proposed costs of the repairs or removals and replacements are fair and reasonable.

(2) Within 90 days of receipt of a complete application, the Cemetery Board shall make a determination, based upon the following factors:

(i) whether the monuments or markers are so badly out of repair or dilapidated as to create a dangerous condition;

(ii) whether due notice has been given to the last known owner to repair or remove the monument or other marker and the said owner has failed to do so within the time prescribed in said notice;

(iii) danger to visiting families;

(iv) appropriateness of prior use of payments from the fund;

(v) compliance with Not-for-Profit Corporation Law, article 15 and Cemetery Board rules and regulations;

(vi) priority of application based upon previous allocations; and

(vii) availability of monies within the fund.

(j) Use of disbursements for repair or removal of dilapidated or disrepaired monuments that create a dangerous condition.

(1) The cemetery corporation must apply all disbursements made by the Cemetery Board to the repair or removal and replacement of monuments or other markers as described in the application.

(2) Any funds remaining after the repairs or removals and replacements have been performed must be returned to the Cemetery Board for redeposit into the fund.

(k) Final report. Within 90 days of its receipt of disbursements, the cemetery corporation shall make a report to the Cemetery Board setting forth the repairs or removals and replacements made and by whom, the amount of funds expended, and the amount of funds to be returned to the Cemetery Board, if any. If any monuments or other markers have been removed, the report shall include a statement that they have been replaced with a flush bronze or granite marker suitably inscribed if replacement is appropriate for identification purposes. If the repairs and removals have not been completed, the reason therefor shall be set forth, and the anticipated date for a subsequent, final report shall be disclosed. Such report and any additional report shall be sworn by a cemetery corporation officer.

N.Y. Comp. Codes R. & Regs. Tit. 19 § 200.11