Responding to a federal class action lawsuit over its management of a large Queens cemetery, an Upper West Side congregation has filed papers asserting that the plaintiffs have no relationship with the synagogue or cemetery and can’t show that they have suffered any personal damage.
But the attorney for the plaintiffs — three grandchildren of Ruth and Harry Lucker, a couple buried in Bayside Cemetery — counter that the move to dismiss is “a thinly veiled effort to unnecessarily burden this Court with a frivolous motion and impose delay and unwarranted expense.”
John Lucker, Elizabeth Lucker and Nancy Rousseau filed suit against Congregation Shaare Zedek in mid-September alleging that the shul failed to maintain plots for which annual and perpetual care policies were sold, deliberately destroyed documents that identify perpetual care plots, and improperly diverted money from the perpetual care fund.
Shaare Zedek has long argued that it lacks the financial resources to properly care for Bayside Cemetery, which it owns, and it has also suggested that responsibility for the cemetery’s upkeep was originally supposed to be shared between the congregation and the many now-defunct burial societies that purchased plots there. Together with several Jewish agencies, including the Jewish Community Relations Council of Greater New York, Shaare Zedek is in the process of creating a nonprofit organization that is to be responsible for restoring and preserving the historic Ozone Park cemetery.
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Shaare Zedek’s Oct. 22 letter to Chief U.S. District Judge Raymond J. Dearie requests permission to file a motion to dismiss, a preliminary requirement to seeking summary judgment. The letter states that the congregation “does not deny that Bayside is an unfortunate state of disrepair,” but adds that “this lawsuit, however well-intentioned is not in the best interest of Bayside or those who are buried there.”
The congregation bases the request for dismissal on three grounds: plaintiffs have no contract or relationship with the cemetery or synagogue and cannot show “any personal injury arising from Defendants’ alleged actions;” plaintiffs do not appear to possess relevant contracts signed by the defendants, and causes of action alleged by plaintiffs “arise out of events that took place, and thus accrued, decades ago” and are “therefore barred by various New York statutes of limitations.”
In his Oct. 26 response, the plaintiffs’ attorney, Michael Buchman, called those three grounds “meritless.” Because the plaintiffs’ late father was primary executor of Ruth Lucker’s estate and John Lucker is the personal representative of his father’s estate, they have standing to sue in this case, the response argues. In addition, the plaintiffs have produced several copies of perpetual care contracts signed by Shaare Zedek officials, and while they do not have a copy of their grandmother’s perpetual care contract they have written confirmation from her burial society, Chebra Shebath Achim, that perpetual care was purchased.
Further, Buchman argues, the statute of limitations has not run out on the claims because Shaare Zedek continues to breach perpetual/annual care contracts, to “fraudulently sell” such contracts “or accept such monies knowing it will not perform contractual services and continues to “breach its fiduciary duties by concealing the true nature and extent of the theft” and by “refusing to conduct an independent accounting.”
According to attorneys for both sides, it is unclear when Dearie will respond to the letters, as he has no deadline for making a decision. However, the next step will be for the two sides’ lawyers to meet together with the judge, after which he will rule whether a dismissal motion is permitted or whether the case should proceed.
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