Brookhaven/
South Haven
Hamlets
Long Island, NY

Lawsuit Filed to Compel Town of Brookhaven, NY to Provide Cemetery Maintenance as Required By NYS Law

August 30, 2010

Hamlet History Club Wins Cemetery Court Case

On August 20, 2010, New York State Supreme Court Justice Melvyn Tanenbaum issued a decision in the Fire Place History Clubs lawsuit against the Town of Brookhaven. His decision required the Town to maintain nine of the ten cemeteries in the Club's July 2009 petition. The 10th cemetery—the "Miller Cemetery"—he judged to still be "privately" owned. Specifically he: "ORDERED, ADJUDGED and DECREED that the petition seeking a writ of mandamus is granted. Respondent [the Town of Brookhaven] is directed to provide the assets necessary to comply with the requirements of Town Law Section 291 for such nine cemeteries* within 90 days of service of a copy of this Judgment with notice of entry." * Rose Family Cemetery, David Hawkins Cemetery, Nathaniel Hawkins Cemetery, South Haven Presbyterian Church Cemetery, Carman Family Cemetery, Hulse Cemetery, Corwin Family Cemetery, Azel Hawkins Cemetery, and Barteau Cemetery. The full decision may be found here: Fire Place History Club Press Release: On Tuesday, September 7, 2010, Dr. Richard Thomas representing the Fire Place  addressed the Town Council of the Town of Brookhaven with the following message concerning the Fire Place History Club's lawsuit over cemetery maintenance. Also present were John Deitz and Marty van Lith.

While the court made its decision in August 2010, it was not until May, 2011 that the Fire Place History Club saw any indication the Town was going to comply with the judgment, and the club was preparing to file a Contempt of Court citation with Justice Tannebaum. Grave Endeavor: Brookhaven to Care for Forgotten Cemetery.  Newsday, May 11, 2011. In June, 2011, work was actually observed to have been completed. Update on our Cemeteries.  5 June 2011 Barteau Cemetery, June 30, 2011 cleaned up, except for right-of-way required to do stone repair work. David Hawkins Cemetery, 1 July 2011 cleaned up—and it's not even along a parade route.

July 16, 2009

Marty van Lith of the Fire Place History Club reported on July 16, 2009: "It's past the middle of July and most of our historic cemeteries are now again overgrown with vegetation. I feel that we've been patient and tried everything we could do for the past three years to get the Town of Brookhaven to do its duty and maintain these cemeteries. This morning our lawyer, Reggie Seltzer, and I created the legal documents to initiate an article 78 lawsuit against the Town, which Reggie will file with the County Clerk this afternoon (Index No. 09-28006). The actual court hearing may be months away."

To view the original court filing in New York Supreme Court, click

 

Article 78 is a provision in New York State Law which, among other things, seeks to determine whether a governmental body or officer failed to perform a duty enjoined upon it by law, and direct a remedy -- in this case, a provision of New York State Town Law section 291 which in relevant part states: "It shall be the duty of the Town Board to remove the grass and weeds from any such [abandoned] cemetery or burial ground in such town at least three times in each year, and to erect and maintain suitable fences around such cemetery or burial ground."

The Town has requested and received an adjournment for a hearing to later this fall, and then a second adjournment to January 2010.

January 13, 2010

The Brookhaven Town Attorney, on 13 January  filed a response to the July court filing—nearly six months after the original filing with the court—obviously an attempt to delay in the hope if discouraging that the reasonable requests of ordinary citizens.

Their response was essentially that the Town had no obligation maintain the cemeteries, and the that the Fire Place History Club had no standing to sue the Town.

To view the Town of Brookhaven's January 2010 response, click buttons.  These are scanned document files and fairly large.

8.5 MB	18.6 MB	14.5 MB

The "Town Arguments" document includes all their Exhibits except Exhibit D.  Exhibit D is a copy of an inventory of all cemeteries in New York State prepared by the Association of Municipal Historians of New York State.  Ironically, it's preface contains the following:

I suspect that the Association of Municipal Historians would be appalled that their informative inventory would be used by the Town as one of the justifications for not maintaining historic cemeteries.

January 25, 2010

Immediately on receiving the Town's response, a subcommittee of the Fire Place History Club was formed to prepare the Club's response.  Dr. Richard A. Thomas, a retired physicist, took on the task of researching the specific objections in point of law raised by the Town of Brookhaven.  He spent several days on this research and prepared a paper for our attorney, Regina Seltzer.  After reviewing his research, she decided that it was appropriate to ask for a summary judgment in favor the Fire Place History Club "on the grounds that Brookhaven Town violated its lawful Town duties as explicitly set forth in Cemeteries Town Law Section 291 and that respondents have raised no triable issue of fact a summary determination is appropriate based on the pleadings, papers and admissions ...." She further concluded that the Town's answer, denying knowledge or information as to allegations in our original filing and objections in point of law "are shameful, blatantly false fabrications, without any basis in fact, intended to mislead the Court." 

The subcommittee—Marty Van Lith, Richard Thomas, and John Deitz then met with Regina Seltzer for over four hours on Sunday afternoon, drafting the reply to the Town's specific objections in point of law.  This document was then filed with the Supreme Court of the State of New York at Central Islip on January 25, 2010 (Index No. 09-28006).

The Summary Motion and Argument section of this filing is found in the first link (#1).  This version, a pdf file, is identical to the court filing except that a few typographical errors have been corrected. Since it is based on the original word processing document, it is considerable smaller than the scanned versions.  The Short Summary link, prepared by Richard Thomas, distills the basic arguments into a few paragraphs.

At a luncheon meeting of the Fire Place History Club on Tuesday, January 26, 2010, Regina Seltzer discussed the suit with club members.  It should be noted, Regina is doing this work pro bono.  She is also a former Town of Brookhaven councilwoman.

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L-R:  Jeb Barry (head split), George Koch, Bob Brown, Betty Bundy, Richard Thomas, John Deitz, Diane Martens, Marty Van Lith, Regina Seltzer, Ron Kinsella, Eben Ludlow, Faith McCutcheon, and Anita Cohen

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March 6, 2010

The Town of Brookhaven responded to our 45-point reply to their first response, in which they had denied owning the cemeteries, claiming that they are privately owned and thus the Town is not responsible. They also denied responsibility for maintenance and care of abandoned cemeteries. They did not address one single point of the 45 points we made demonstrating that the Town is mandated by NYS law to maintain these cemeteries. Instead, they continued pursuing their contention that these are private cemeteries and none of their business.

We answered this second Town response by reiterating our first response and saying that it's irrelevant anyway since the law requires the Town to maintain abandoned cemeteries by "whomsoever owned" in any town.

While it was originally thought that the case would be settled by this Tuesday, March 9, it turns out that's the date on which all final paperwork is due in court. The decision will be made whenever Justice Tanebaum gets around to it, which our attorney Reggie Seltzer doesn't think will be anytime soon. So, we are still in limbo and may have to cancel some of the work we have grant money for Hollis to do.

 

Page revised:  29 September 2011