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No. SC 3132/08.

Decided: April 26, 2010

Renzulli Law Firm, LLP, by John V. Tait, Esq., White Plains, attorneys for plaintiff defendant on counterclaim. The Kelly Group, PC, by John Quinlan Kelly, Esq., New York, attorneys for defendant plaintiff on counterclaim.

Plaintiff has commenced this small claims action to recover damages resulting from the alleged wrongful exhumation and cremation of Dodo, a mixed breed dog who emigrated with plaintiff from China to the United States. Defendant has counterclaimed for damages resulting from plaintiff's alleged breach of an agreement to pay annual fees for the maintenance of Dodo's burial plot and general upkeep of the pet cemetery. Having weighed the evidence adduced at trial, and having had ample opportunity to observe the demeanor and assess the credibility of the witnesses, the Court makes the following findings of fact and conclusions of law.

Findings of Fact

On January 5, 2000, plaintiff and her husband went to the Hartsdale Pet Cemetery and Crematory (the “Cemetery”) for the purpose of discussing Dodo's burial. On this date, plaintiff and a Cemetery employee talked about various aspects of the burial process and options available. Among the topics discussed were the disposition of Dodo's remains, the location and size of a burial plot, the style and cost of a casket and monument, and the available fees associated with the maintenance and upkeep of the plot and Cemetery grounds. As a result of the discussion, plaintiff elected to have Dodo's remains placed in an oak casket costing four-hundred and ninety-five dollars. Plaintiff selected the option of an individual burial at a cost of one-hundred and ninety dollars and reserved a plot which was sufficient in size to also accommodate the eventual burial of plaintiff's second dog, Bobo. The monument chosen was heart-shaped, pink in color, engraved with Chinese lettering and provided a space for dual photographs of Dodo and Bobo. The cost of the monument was seven-hundred and eighty-three dollars.1

On the same date, plaintiff received and signed a Burial Right Certificate (the “Certificate”). The front of the Certificate provides in pertinent part as follows:

“This is to certify that the aforementioned individual has been granted to him/her and his/her heirs and devisees the exclusive use of the above stated plot as a burial place for deceased pet animals, under the terms, limitations and conditions declared and specified in a certain agreement dated May 14, 1914, and recorded in the office of the Register of the County of Westchester in Liber 2055 of Deeds, page 335; subject to the rules and regulations specifically enumerated on the reverse side of this Certificate. Said rules and regulations are incorporated therein and made part and parcel of this Certificate with the same force and effect as if fully rewritten and incorporated herein.”

The reverse side of the Certificate contains, in pertinent part, the following:

“Rules and Regulations of the Hartsdale Canine Cemetery:

(1) This Burial Right Certificate grants the plot-holder the privilege of burying deceased pet animals in the Hartsdale Canine Cemetery in the designated location set forth in this document. The Burial Right Certificate is not a deed, but merely grants the holder a burial right subject to certain conditions, stipulations and limitations as set forth below.

(2) All holders of burial rights are required to contribute his/her proportionate share toward the maintenance and general upkeep of the cemetery. This may be accomplished by assessing an annual charge payable in advance or by a single payment to the Perpetual Care Trust Fund.

(3) In the event the annual charge on any lot remains unpaid for three years after such charge becomes due and payable, this corporation shall have the right to serve a notice by ordinary mail addressed to the plot-holder of record at the address last known to this corporation. This notice will advise the holder that all rights, including the rights to any monuments affixed thereto, shall cease and terminate and will revert to this corporation if payment is not received within six months after the mailing of such notice. The Hartsdale Canine Cemetery, Incorporated is not responsible for any consequences resulting from the failure of mail to reach the plot-holder.

(9) This corporation may from time to time make such rules and regulations as its Board of Directors may deem requisite and proper to secure and promote the general objectives of the Cemetery.”

The Agreement dated May 14, 1914, and made part of the Certificate, provides, in relevant part, the following:

“And Whereas, the said Arthur S. Luria, Gustavus W. Rawson and Charles Bates Dana have constituted themselves a Committee to receive voluntary contributions from plot holders in the [Hartsdale Canine Pet Cemetery, Inc.] and others, for the upkeep and improvement of the burial plots and of said cemetery as it now exists, and the owner thereof desires that the cemetery as it now exists shall receive the benefit of the efforts of such Committee and its successors as aforesaid․

THIRD. The Owner covenants and agrees that each and every of the present and future plot holders, whether such under licenses, burial permits, or burial rights, by whatever name called, which have heretofore been issued by said Samuel K. Johnson [President], or which have been or may be hereafter issued by the said Owner, its successors or assigns, shall have and hold the exclusive use of the plot or plots designated in such license or permit, or burial rights, by whatever name called, as a burial ground for canines or other deceased pet animals, which exclusive use the Owner hereby grants and confirms to such plot holders, his or her heirs or devisees, in perpetuity; upon the condition, however, that such plot holder, his or her heirs or devisees shall hold such plot or plots as and for such burial place and shall maintain thereon some monument, fence or railing or otherwise care for the same, so that such plot or plots shall be kept in good order and upon the grounds be designated and identified as such burial place, and in case of failure so to do the said Owner shall have the right to serve a notice by mail addressed to said plot holder, his or her heirs or devisees last known to such Owner, at the address of either of such persons last known to it, and also to the Secretary and Treasurer of the heretofore mentioned Committee, last known to said Owner, at their address last known to it, stating that if he or she does not for six months after the mailing of such notice hold such plot or plots as and for a burial place and maintain thereon some monument, fence or railing, or otherwise care for the same so that such plot or plots shall be kept in good order and upon the grounds be designated and identified as such burial place, all the right, title and interest of such person in and to such plot and Cemetery in general under this agreement shall cease and determine and revert to said Owner, for the purpose of other burials․

SIXTH. The Owner covenants and agrees that it will not disturb nor consent to the disturbance of such plots nor any of them, nor will the said Owner disinter or permit any disinterment, without the consent in writing of the plot holder, except upon a reversion of such plot obtained in the manner hereinbefore provided in paragraph Third․

EIGHTH. The Owner covenants and agrees that this agreement shall form and be a part of all past, present and future licenses, permits or rights of burials, by whatever name called, whether issued by Samuel K. Johnson or the said Owner, its successors or assigns, the same as if incorporated therein at length, and each license, permit or burial right, by whatever name called, hereafter issued by the said Owner, its successors or assigns, shall refer to this agreement as a part thereof․

ELEVENTH. This agreement shall be binding upon the Owner, its successors and assigns, and upon the said Committee and its successors in office, and the covenants shall run to all present and future holders of burial plots in said Cemetery, whether such under licenses, permits or burial rights, by whatever name called, which have heretofore been issued by Samuel K. Johnson, or which may have been, or may be hereafter issued by said Owner, its successors or assigns.”

Consistent with ¶ 2 on the reverse side of the Certificate, defendant's employee provided plaintiff with the option of choosing either annual care or perpetual care for Dodo's plot. Plaintiff elected annual care. An invoice was generated which included, among the various costs indicated above, a charge of four-hundred and fifty dollars for the Certificate and concomitant right to bury Dodo in the Cemetery, along with a charge of thirty-one dollars for the annual care of Dodo's resting place. The invoice was paid in full on January 5, 2000. Notably, the invoice indicates that plaintiff provided a residential address which was located in Middle Village, New York.

Thereafter, plaintiff visited Dodo's plot biannually, leaving an apple and flowers in the summer and a pumpkin and flowers in the fall. Defendant continued to maintain Dodo's plot and the Cemetery grounds, which included, among other things, the remounting of Dodo's picture which had apparently dislodged from the face of Dodo's monument.

Defendant mailed invoices to plaintiff at her Middle Village, New York address in 2001, 2002, 2003 and 2004, each invoice requesting payment for the annual care of Dodo's plot and Cemetery grounds. No payments were received from plaintiff. More specifically, invoices which billed for both 2001 and 2002 annual care of Dodo's plot were mailed to plaintiff. These invoices were never returned as undeliverable. The invoice which billed for 2003 annual care was mailed in late December 2002 and was returned as undeliverable. In late 2003 defendant sent a notice and final invoice by certified mail to plaintiff at her Middle Village, New York address advising of the outstanding charges for annual care covering the period 2001-2004 and warning that failure to pay the charges due would result in the disinterment of Dodo's remains, removal of the monument and reversion of the plot to the Cemetery. The total amount due for annual care, including the cost due for the upcoming year of 2004, was one-hundred and forty-five dollars. The notice and invoice were returned to defendant with a post office indication of “attempted not known.” As a result, plaintiff's right to the burial plot was terminated in 2004. Dodo was exhumed and cremated-the ashes spread over the Cemetery grounds.

Conclusions of Law

Article 35-C of the General Business Law (GBL) regulates the conduct of pet cemeteries and pet crematoriums operating in the State of New York. GBL § 750, entitled “Declaration of Policy,” provides as follows:

“The legislature hereby finds and declares that the relationships that humans develop with other members of the animal kingdom that are taken into our homes and kept as pets are unique and special. These relationships can enrich our lives and increase our happiness. Even after the death of a pet, human attachment to the memory of the pet often remains very strong and many people feel the need to memorialize their love for their animal by burying their pet in a pet cemetery. Pet cemeteries, their managers and owners have a special responsibility to their customers who have entrusted their pets' remains with them. These pet cemeteries have a duty to act in an ethical and lawful manner to prevent grieving pet owners from experiencing further any emotional pain or financial manipulation. Perpetrations of fraud against grieving pet owners are unconscionable.

The legislature further finds and declares that the people of this State have a vital interest in the establishment, maintenance and preservation of pet cemeteries and pet crematoriums and the proper operation of the businesses and individuals which own and manage same. This article is determined an exercise of the police powers of this State to protect the well-being of our citizens, to promote the public welfare, to promote the health of the public and to prevent pet cemeteries and pet crematoriums from falling into disrepair and dilapidation and becoming a burden on the community” (Added L.1992, c. 526, § 1).

A contemporaneous legislative declaration or finding contained in a statute may best be defined as an interpretation placed upon the statute at the time of its passage and also the stated reasons for its enactment (Koch v. Dyson, 85 A.D.2d 346, 380 [2d Dept.1982][concurring opinion] ). The declaration of legislative intent enables an interpretation and application of the statute(s) most favorable for its intended beneficiary (see e.g. Orange County Publications, Division of Ottaway Newspapers, Inc. v. Council of City of Newburgh, 60 A.D.2d 409, 416 [2d Dept.1978] ). In this case, it is evident from the legislative declaration that the enactment of Article 35-C was intended to protect pet owners and, as such, this law will be interpreted most favorable in this case for its intended beneficiary, the plaintiff.

Further support for the conclusion that Article 35-C of the General Business Law was intended as consumer protection legislation can be gleaned from a review of the bill jacket (see generally Erie County v. City of Buffalo, 4 N.Y.2d 96 [1958]; DeVille v. Continental Assur. Co., 10 A.D.2d 386 [4th Dept.1960] aff'd. 8 N.Y.2d 1080 [1960] [the contents of a bill jacket are not conclusive, but they may aid in ascertaining the legislative intent] ). Various portions of the memoranda in support make clear that it was the intent of the Legislature to establish a statewide regulatory process which would impose fiscal and operational standards upon a pet cemetery in order to protect the public. Apparently, the deceptive business practices of the Long Island Pet Cemetery in the early nineteen-nineties were the precipitating event which compelled Legislative action. After accepting money from pet owners to have their deceased pets either buried or cremated, the Long Island Pet Cemetery instead illegally dumped deceased pets in mass graves. Some news articles contained in the bill jacket report that over two-hundred and fifty thousand pets may have been illegally dumped.

Wide support was filed in connection with the enactment of Article 35-C. Each of the following supported passage of the bill: Executive Chamber, Executive Deputy Secretary of State, New York State Association of Pet Cemeteries, American Society for the Prevention of Cruelty to Animals, State Consumer Protection Board, Bide-A-Wee Home Association, The Hartsdale Canine Cemetery, Inc. (defendant herein), and the New York State Veterinary Medical Society (Bill Jacket, L 1992, ch. 526).

General Business Law § 750-q (2) provides as follows: “In lieu of a permanent maintenance endowment fee, the operator of a pet cemetery and a pet owner may enter into a contract for care of the pet cemetery on an annual basis. The pet owner then shall be charged an annual maintenance fee which shall be paid in the manner described below. However, only one contract for annual maintenance shall be entered into per gravesite and shall state specifically the amount of the annual maintenance fee to be paid each year” (Added L .1992, c. 526, § 1).

General Business Law § 750-v provides as follows: “All pet cemetery owners and operators shall have the following duties: (3) to clearly inform customers of the option of paying maintenance fees for care of pet graves, including costs and benefits for permanent care for pet graves and annual care for pet graves” (added L.1992, c. 526, § 1).

It is plaintiff's contention that defendant has violated GBL §§ 750-q (2) and 750-v by failing to clearly inform her of the option to choose either perpetual care or annual care of Dodo's plot and the attendant costs/benefits each form of care offers. Before analyzing this issue, the Court must first determine the nature of the parties' agreement and whether same contains all the material terms necessary for an enforceable contract.

In evaluating whether the nature of a contract is predominantly for the rendition of services or for the sale of goods, a court must view the transaction, in its entirety, in order to determine the main object sought to be accomplished (Perlmutter v. Beth David Hospital, 308 N.Y. 100 [1954] ). In this case, the Court concludes that the parties' agreement was predominantly for the rendition of services, that is, the interment of Dodo and continuing maintenance of the Cemetery, of which the purchase of a plot, headstone and casket were incidental and adjunct to the services performed (see e.g. Gibralter Management Co., Inc. v. Grand Entrance Gates, 46 AD3d 747 [2d Dept.2007][contract was predominantly for the performance of labor and services related to the construction of an entrance way on real property and the fabrication/installation of electronically-operated gates was an incidental part]; compare AP Propane, Inc. v. Sperbeck, 157 A.D.2d 27 [3d Dept.1990] [contract to install gas tanks and related equipment which also contained an agreement to purchase liquid propane gas for a three-year period was a contract for the sale of goods]; Levin v. Hoffman Fuel Co., 94 A.D.2d 640 [1st Dept.1983][contract to supply heating oil on an automatic basis was essentially an agreement for the sale of goods, and service aspect of agreement was incidental] ).

Having concluded that the parties' agreement is for the performance of labor and services, it must next be determined whether the contract satisfies any applicable statute of frauds. By its terms, the contract cannot be completed within one year. As such, the contract must satisfy the requirements of General Obligations Law § 5-701 (see generally Cron v. Hargo Fabrics, 91 N.Y.2d 362 [1998] ).

As a general rule, an agreement for services governed by General Obligations Law § 5-701 must contain expressly or by reasonable implication all the material terms of the agreement (Dorman v. Cohen, 66 A.D.2d 411 [1st Dept.1979] ) and price is a material term of every contract for services (Tufano v. Morris, 286 A.D.2d 531 [3d Dept.2001]; Cooper Square Realty, Inc. v. A.R.S. Management, Ltd., 181 A.D.2d 551 [1st Dept.1992]; compare AP Propane, Inc. v. Sperbeck, 157 A.D.2d 27 [3d Dept.1990][a contract for the sale of goods for the price of $500 or more must be in writing (Uniform Commercial Code § 2-201[1] ) and such a writing will be enforceable despite any deficiency in stating the price of the goods] ). Defendant argues that the signed Certificate and invoice(s), when considered together, constitute a contract which satisfies General Obligations Law § 5-701. The Court agrees.

It is well settled that an integration of several documents satisfies the Statute of Frauds (General Obligations Law § 5-701[a] ) where the writings refer to the same subject matter, together contain all the material terms, and at least one of which is signed or prepared by the party to be charged (see Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48 [1953]; see e.g. American Linen Supply Co., Inc. v. Penn Yan Marine Mfg. Corp., 172 A.D.2d 1007 [4th Dept.1991][original agreement signed by the party to be charged, sizing slips, invoices, check in payments of invoices and corroborating testimony of parties satisfied the Statute of Frauds]; see also Royal Air Maroc v. Servair, Inc., 603 F.Supp. 836 [S.D.NY 1985]; compare Maula v. Milford Management Corp., 559 F.Supp. 1000 [S.D.NY 1983][court rejects argument that lease, checks and written notices satisfied the Statute of Frauds] ). The fact that the documents were not prepared with the intention of evidencing a contract, or that the documents came into existence subsequent to its execution, is immaterial (see Lalonde v. Modern Album & Finishing Co., 38 A.D.2d 960 [2d Dept.1972] ).

In this case, the signed Certificate and the January 5, 2000 invoice contain all the material terms of an enforceable contract. Both the signed Certificate and invoice were delivered to plaintiff on the same day and refer to the same subject matter. The parties to the agreement are clearly identified, the relative rights and obligations of the parties are adequately set forth, and the cost of the items purchased and services to be provided are indicated in sufficient detail.

Alternatively, where an agreement fails to comply with General Obligations Law § 5-701(a) the doctrine of part performance can nonetheless create an enforceable oral agreement where the parties' part performance is unequivocally referable to that oral agreement (see Singh v. Kur, 64 AD3d 697 [2d Dept.2009]; EDP Hosp. Computer Systems, Inc. v. Bronx-Lebanon Hosp. Center, 63 AD3d 665 [2d Dept.2009]; Durante Bros. Const. Corp. v. College Point Sports Ass'n, Inc., 207 A.D.2d 379 [2d Dept.1994]; Carey & Associates v. Ernst, 27 AD3d 261 [1st Dept.2006]; Signature Brokerage Inc. v. Group Health Inc., 5 AD3d 196 [1st Dept.2004]; Travis v. Fallani and Cohn, 292 A.D.2d 242 [1st Dept.2002]; Steele v. Delverde S.R.L., 242 A.D.2d 414 [1st Dept.1997]; Onbank & Trust Co. v. James P. Burr Enterprises Inc., 235 A.D.2d 799 [3d Dept.1997]; but compare Messner Vetere Berger McNamee Schmetterer Euro RSCG Inc. v. Aegis Group PLC, 93 N.Y.2d 229, 235, fn.1 [1999]; Stainless Broadcasting Co. v. Clear Channel Broadcasting Licenses, L.P., 58 AD3d 1010 [3d Dept.2009]; Stephen Pevner, Inc. v. Ensler, 309 A.D.2d 722 [1st Dept.2003]; Valentino v. Davis, 270 A.D.2d 635 [3d Dept.2000]; Farash v. Sykes Datatronics, Inc., 90 A.D.2d 965 [4th Dept.1982] ).

The credible evidence shows that plaintiff selected and paid for various items and services associated with the interment of Dodo. Further, defendant undertook the necessary steps to bury Dodo and maintain the subject plot. To the extent that part performance can be considered in the context of this dispute, the parties' evinced an intent to be bound and their conduct was unequivocally referable to an oral agreement, which therefore is not barred by the Statute of Frauds (see e.g Travis, supra ).

Pivotal to the outcome of this matter is whether defendant complied with the statutory requirement that plaintiff be clearly informed of the option to choose either perpetual care or annual care for Dodo's plot and whether plaintiff was specifically advised of the attendant costs/benefits each form of care offers (GBL §§ 750-q [2] and 750-v). Plaintiff and her husband both testified that they were never advised, either orally or in writing, of the option to choose either perpetual or annual care. Similarly, plaintiff testified that defendant never indicated that choosing annual care for Dodo's plot would require yearly payment for the service.

It is well settled that a person who signs a contract is presumed to know its contents and to assent to the terms therein (Golden Stone Trading, Inc. v. Wayne Electro Systems, Inc., 67 AD3d 731 [2d Dept.2009] ); British West Indies Guar. Trust Co., Ltd. v. Banque Internationale a Luxembourg, 172 A.D.2d 234 [1st Dept.1991] ). In this case, plaintiff executed the Certificate on January 5, 2000. As indicated above, ¶ 2 of the Certificate unequivocally states that “[a]ll holders of burial rights are required to contribute his/her proportionate share toward the maintenance and general upkeep of the cemetery. This may be accomplished by assessing an annual charge payable in advance or by a single payment to the Perpetual Care Trust Fund.” The plain language of this paragraph comports with the statutory requirement that a pet owner be informed of their option to choose either perpetual care or annual care. Further, the January 5, 2000 invoice, which was paid in full by plaintiff on that same date, contains a line item for “annual general care” with a corresponding charge of thirty-one dollars. This proof evinces that plaintiff was well aware of the cost for the care that she selected.

In addition, over the repeated objection of plaintiff's counsel, the Court allowed defendant's principal to testify regarding defendant's practice of advising all prospective customers of the care options, benefits and costs associated with the burial of a pet. It was counsel's contention that defendant's principal lacked personal knowledge of the events which occurred and thus was unable to offer relevant and admissible proof.

In New York, proof of a business, professional or other institutional practice or custom is admissible to show that the practice or custom was or would have been followed under the same set of circumstances on a specific occasion (Soltis v. State, 188 A.D.2d 201 [3d Dept.1993] ). In other words, evidence of a routine practice is admissible as circumstantial evidence that an individual acted in conformity with his routine practice on the date in question (Rigie v. Goldman, 148 A.D.2d 23 [2d Dept.1989] ). As recognized by the Court of Appeals, “․ circumstantial proof is, of course, as probative as direct evidence and may be even more persuasive” (New York State Ass'n of Counties v. Axelrod, 78 N.Y.2d 158 [1991]; citing 1A Wigmore, Evidence § 26 at 957, 961 [Tillers rev.1983] ). Further, the admissibility of business, professional or other institutional custom or practice is not limited to instances where the witness is to testify solely to a personal habit or custom and was in total control of the circumstances. Rather, an employee may testify to the custom and practice of his organization as probative evidence of the conduct of other employees of the organization on a given occasion (Soltis v. State, supra ).

Defendant's principal testified that it was customary for all pet owners to receive a price list and other information regarding the comparative costs and benefits of perpetual care and annual care. Although defendant's principal was unable to testify with conviction that he actually spoke to either plaintiff or her husband, his testimony was nonetheless credible and probative on the issue raised. Notably, this witness has been defendant's president for thirty-five years and was possessed of sufficient knowledge and experience to testify as to defendant's business practices.

Plaintiff asserts that by simply maintaining a monument on Dodo's plot defendant had no right to terminate the parties' contract, exhume Dodo and cremate his remains. This contention finds some support in paragraph THIRD of the Agreement dated May 14, 1914 which grants a plot holder exclusive use of the plot in perpetuity upon the condition that the plot holder “shall maintain thereon some monument, fence or railing or otherwise care for same, so that such plot ․ shall be kept in good order․” However, ¶ 9 of the Certificate permits defendant to make “such rules and regulations as its Board of Directors may deem requisite and proper to secure and promote the general objectives of the Cemetery.” The Court finds that the rule established in ¶ 2 of the Certificate which requires a plot holder to “․ contribute his/her proportionate share towards the maintenance and general upkeep of the Cemetery ․“ is required for the proper maintenance of defendant's business and therefore promotes the general objectives of the Cemetery. Reading the paragraphs in the Agreement and Certificate together, plaintiff's argument that the mere presence of a monument on the plot prevented defendant from terminating the parties' contract is unpersuasive.

Plaintiff also argues that the phrase “annual general care” does not, standing alone, mean that plaintiff was required to tender a yearly payment for the maintenance of Dodo's plot and upkeep of the Cemetery. Apparently, it is plaintiff's contention that she was only required to make one payment of thirty-one dollars under the January 5, 2000 invoice and receive, in return, care of Dodo's plot in perpetuity. Defendant contends that the language “annual general care” is plain and that plaintiff understood it to mean the obligation of yearly payments.

The threshold decision on whether a contract term is ambiguous is within the exclusive province of the court (Sutton v. East River Savings Bank, 55 N.Y.2d 550, 554 [1982] ). Once the court makes its threshold determination that a contract term is ambiguous, the construction of the ambiguous term is an issue to be resolved by the fact-finder, with the parties' intent at the time of contracting ascertained either from within the four corners of the document, if possible, or, as a last resort, by passing on the credibility of extrinsic evidence and whatever reasonable inferences can be drawn therefrom (Id.; see also Bjerke v. Bjerke, 69 AD3d 1042 [3d Dept.2010]; 333 East 43 Owners Corp. v. Boylan, 22 Misc.3d 135[A][App. Term 1st Dept.2009] ).

Where a contract fails to define terminology susceptible to varying reasonable interpretations, resulting ambiguities must be construed against the drafter and in favor of the party who had no voice in the selection of its language (Guardian Life Insurance Co. of America, Inc. v. Schaefer, 70 N.Y.2d 888 [1987]; 67 Wall St. Co. v. Franklin National Bank, 37 N.Y.2d 245 [1975] ). Notwithstanding this rule of law, it is nonetheless true that where a particular interpretation would lead to an absurd result, the court can reject such a construction in favor of one which would better accord with the reasonable expectations of the parties (Reape v. New York News, Inc., 122 A.D.2d 29 [2d Dept.1986]; White/Tishman East, Inc. v. Banko, 171 A.D.2d 401 [1st Dept.1991]; Samuels v. Thomas Crimmins Contracting Company, 1993 WL 36168 [S.D.NY 1993] ). In fact, “there is a canon of construction which cogently argues that a rationale, sensible and practical construction of a ․ contract should be preferred to one which is unreasonable, absurd or impracticable” (Public Service Commission, Second Dist. v. New York Central Railroad Co., 193 AD 615 [3d Dept.1920] ). Last, while ambiguities in a contract are generally to be resolved against the drafter of the contract, the terms of a contract are nevertheless to be construed reasonably (Emery v. Fishmarket Inn of Granite Springs, Inc., 173 A.D.2d 765 [2d Dept.1991] ).

Nowhere does the documentary evidence define the term “annual.” Black's Law Dictionary defines “annual” as follows: “Of or pertaining to a year; returning every year; coming or happening yearly. Occurring or recurring once in a year; continuing for the period of a year; accruing within the space of a year; relating to or covering the events or affairs of a year” (Black's Law Dictionary, 6th ed.). Based upon the foregoing definition, the term “annual” is susceptible to varying reasonable interpretations. The term “annual” arguably could pertain to a single year or refer to an event or obligation that occurs yearly. Thus, the term “annual” is ambiguous and the Court will consider the credible extrinsic evidence of the parties' intent at the time of contracting and whatever reasonable inferences can be drawn therefrom.

It is evident from the credible testimony that plaintiff understood the term “annual” to require a payment each year for the general maintenance of the plot and Cemetery. In fact, on cross examination, plaintiff readily admits that the word “annual” means “every year.” Moreover, adopting plaintiff's interpretation of the term “annual” would lead to the absurd result of a one-time payment of thirty-one dollars covering the cost of general maintenance of the burial plot and Cemetery's common grounds in perpetuity. Accordingly, the Court concludes that a single payment of thirty-one dollars for the care of Dodo's plot and the Cemetery grounds in perpetuity was not an intended result of the parties' agreement. Indeed, this conclusion is manifestly equitable to both parties and avoids giving plaintiff an unfair and unreasonable advantage over defendant, that is, perpetual care of Dodo's plot and the Cemetery grounds for a mere single and nominal payment of thirty-one dollars (Heller v. Kalisch, 141 AD 205 [1st Dept.1910][court will endeavor to give the construction most equitable to both parties instead of the construction which will give one of them an unfair and unreasonable advantage over the other] ).

While plaintiff contends that she moved to New Jersey in April 2002 and that the Cemetery was advised of a change in her address sometime in October 2001, the evidence on this point is unpersuasive. More specifically, plaintiff was unable to identify an individual in defendant's employ who actually received the alleged change of address and whether it was plaintiff's husband or a Cemetery employee who wrote down the change of address information on a “post-it note.” In addition, although defendant's testimony established the business practice of utilizing an “address change authorization form,” no such document was ever completed by plaintiff.

It is also noteworthy that ¶ 3 of the Certificate states as follows: “The Hartsdale Canine Cemetery, Incorporated is not responsible for any consequences resulting from the failure of mail to reach the plot-holder.” With respect to this type of disclaimer, the law generally enforces contractual provisions absolving a party from its own negligence. Conversely, public policy forbids a party from contractually shielding itself from damages occasioned by grossly negligent conduct (see Colnaghi, U.S.A., Ltd. v. Jewelers Protection Services, Ltd., 81 N.Y.2d 821 [1993] ). There is no evidence in this case to suggest that defendant was either negligent or grossly negligent with respect to the record keeping of plaintiff's address and the mailing of invoices or notices to plaintiff. As such, the disclaimer of responsibility for mail which did not reach plaintiff is an enforceable provision of the contract.

Furthermore, both the documentary evidence and testimony regarding defendant's standard office procedure establish a presumption that plaintiff received the subject invoices mailed in 2001 and 2002. (see generally Ford v. Dowling, 213 A.D.2d 402 [2d Dept.1995]; City of Yonkers v. G.H. Clark & Son, Inc., 159 A.D.2d 535 [2d Dept.1990]; Dilon Medical Supply Corp. v. Progressive Casualty Insurance Co., 12 Misc.3d 127[A][App. Term 2nd & 11th Jud. Dists.2006] ). Plaintiff has failed to offer credible evidence which rebuts the presumption of delivery.

Accordingly, the Court concludes that plaintiff has failed to establish her case against the defendant by a preponderance of the evidence (see Naclerio v. Adjunct Faculty Ass'n. (AFA) Nassau Community College, 1 Misc.3d 135[A][App. Term 9th & 10th Jud. Dists.2003] [even in the relatively relaxed and informal atmosphere of the small claims forum, plaintiff still bears the burden of establishing her case by a preponderance of the evidence] ). Plaintiff received all the protections afforded under GBL §§ 750-q (2) and 750-v. She breached her agreement to pay an annual fee each year for the care and upkeep of Dodo's resting place. Defendant mailed out the requisite notice to plaintiff and upon plaintiff's failure to respond, the plot properly reverted back to defendant. Plaintiff's case is therefore dismissed.2

In contrast, defendant has established by a preponderance of the evidence the existence of an enforceable agreement to pay a yearly charge for the annual care of Dodo's plot and plaintiff's breach thereof. Judgment awarded on defendant's counterclaim in the sum of one-hundred and forty-five dollars, this amount representing unpaid fees for annual care between 2001-2004.



1.  Plaintiff's affection for Dodo and her commitment to spend money for the care and well-being of her dog was further shown by proof that in the past she had expended ten-thousand dollars for the surgical implant of a pacemaker inside Dodo.

2.  At the close of plaintiff's case, defendant's CPLR 4401 motion for judgment dismissing the case as against defendant Edward C. Martin was granted based upon insufficient evidence of personal liability.


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