Bill Text: NY A10638 | 2019-2020 | General Assembly | Introduced

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Bill Title: Relates to moving the division of cemeteries from the department of state to the department of health.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2020-06-10 - referred to corporations, authorities and commissions [A10638 Detail]

Download: New_York-2019-A10638-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          10638

                   IN ASSEMBLY

                                      June 10, 2020
                                       ___________

        Introduced  by  COMMITTEE ON RULES -- (at request of M. of A. Sayegh) --
          read once and referred to the Committee on  Corporations,  Authorities
          and Commissions

        AN  ACT  to amend the not-for-profit corporation law, the executive law,
          the state finance law and the general municipal law,  in  relation  to
          moving  the division of cemeteries from the department of state to the
          department of health

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1. Paragraph (a) of section 1504 of the not-for-profit corpo-
     2  ration law, as added by chapter 871 of the laws of 1977, is  amended  to
     3  read as follows:
     4    (a)    A cemetery board is hereby created within the division of ceme-
     5  teries in the department of [state] health,  subject  to  the  following
     6  requirements:   (1)  The members of such board shall be the commissioner
     7  of health, the secretary of state[,] and the attorney general  [and  the
     8  commissioner  of  health],  who  shall  serve without additional compen-
     9  sation.  (2)  The commissioner of health, the secretary of state[,]  and
    10  the  attorney general [and commissioner of health] may each, by official
    11  order filed in the office of his or her respective department and in the
    12  office of the board, designate a deputy or other representative  in  his
    13  or her department to perform any or all of the duties under this section
    14  of  the  department  head making such designation, as may be provided in
    15  such order.  Such designation shall be deemed temporary only  and  shall
    16  not  affect  the  civil  service  or  retirement rights of any person so
    17  designated.  Such designees shall serve without additional compensation.
    18  (3)  The [secretary of state] commissioner of health shall be [chairman]
    19  chairperson of such board, provided that in his or her  absence  at  any
    20  meeting  of the board the secretary of state or the attorney general [or
    21  the commissioner of health], in such order, if either or both  be  pres-
    22  ent,  shall act as [chairman] chairperson.  When designees of such offi-
    23  cers, in the absence of all such officers, are present at any meeting of
    24  the board, the designee of the  [secretary  of  state]  commissioner  of
    25  health, if present, and in his or her absence one of the other designees

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD16274-01-0
        A. 10638                            2

     1  present,  in  the  same  order of preference as provided for the officer
     2  appointing him or her, shall act as [chairman] chairperson. (4)  Techni-
     3  cal, legal or other services shall be performed in so far as practicable
     4  by personnel of the departments of [state, law and health] health, state
     5  and  law  without  additional  compensation but the board may employ and
     6  compensate within appropriations available therefor such assistants  and
     7  employees  as  may  be  necessary  to  carry  out the provisions of this
     8  section and may prescribe their powers and duties.  (5)  Two members  of
     9  the  board  shall  constitute  a  quorum to transact the business of the
    10  board at both regular and special meetings.  (6) The board shall meet at
    11  least once a month, shall keep a record of all its proceedings and shall
    12  determine the rules of its own proceedings.  (7)   Special meetings  may
    13  be  called by the [chairman] chairperson upon his or her initiative, and
    14  must be called by him or her upon receipt of a written request  therefor
    15  signed  by  another member of the board.  Written notice of the time and
    16  place of such special meeting shall be delivered to the office  of  each
    17  member  of the board.  (8)  The board shall have the duty of administer-
    18  ing the provisions of this chapter which deal with cemetery corporations
    19  other than  the  cemeteries  and  cemetery  corporations  enumerated  in
    20  section  fifteen  hundred  three  of this article and shall have all the
    21  powers herein provided and such other powers and duties as may be other-
    22  wise prescribed by law.
    23    § 2. Paragraph (b) of section 1401 of the  not-for-profit  corporation
    24  law,  as  amended  by section 34 of part AA of chapter 56 of the laws of
    25  2019, is amended to read as follows:
    26    (b) Removal of remains from private cemeteries  to  other  cemeteries.
    27  The  supervisor of any town containing a private cemetery may remove any
    28  body interred in such cemetery to any other cemetery within the town, if
    29  the owners of such cemeteries and  the  next  of  kin  of  the  deceased
    30  consent to such removal. The owners of a private cemetery may remove the
    31  bodies  interred  therein  to any other cemetery within such town, or to
    32  any cemetery designated by the next of kin of the  deceased.  Notice  of
    33  such  removal  shall  be  given  within  twenty days before such removal
    34  personally or by certified mail to the next of kin of  the  deceased  if
    35  known  and  to  the clerk and historian of the county in which such real
    36  property is situated and notice shall be given to  the  New  York  state
    37  department  of  [state]  health,  division  of cemeteries. If any of the
    38  deceased are known to be veterans, the  owners  shall  also  notify  the
    39  division  of  veterans' services. In the absence of the next of kin, the
    40  county clerk, county historian or the division of veterans' services may
    41  act as a guardian to ensure proper reburial.
    42    § 3. Paragraph (c) of section 1502 of the  not-for-profit  corporation
    43  law,  as added by chapter 871 of the laws of 1977, is amended to read as
    44  follows:
    45    (c) The term "cemetery board" means the cemetery board in the division
    46  of cemeteries in the department of [state] health.
    47    § 4. Subparagraphs 1, 4, 5 and 6 of paragraph (h) of section  1507  of
    48  the  not-for-profit corporation law, subparagraphs 1, 5 and 6 as amended
    49  by chapter 380 of the laws of 2000 and  subparagraph  4  as  amended  by
    50  chapter 363 of the laws of 2009, are amended to read as follows:
    51    (1)  Cemeteries  incorporated under this article shall contribute to a
    52  fund created pursuant to section ninety-seven-r of the state finance law
    53  for the maintenance of abandoned cemeteries, including the  construction
    54  of  cemetery  fences,  placement  of  cemetery lights and replacement of
    55  cemetery doors and locks, for the restoration  of  property  damaged  by
    56  acts  of  vandalism, and for the repair or removal of monuments or other
        A. 10638                            3

     1  markers not owned by the cemetery  corporation  that  have  fallen  into
     2  disrepair  or  dilapidation  so as to create a dangerous condition. Such
     3  fund shall be administered by a  board  of  trustees  comprised  of  the
     4  commissioner  of  health,  the  secretary  of  state[,] and the attorney
     5  general [and the commissioner of health], or their designees, who  shall
     6  serve without additional compensation.
     7    (4) Authorization for payments by the fund for maintenance of an aban-
     8  doned cemetery shall be made by the [secretary of state] commissioner of
     9  health  only  upon approval by the cemetery board of an application by a
    10  municipality or other solvent not-for-profit  cemetery  corporation  for
    11  fair  and reasonable expenses required to be made by the municipality or
    12  other solvent not-for-profit cemetery corporation for maintenance of  an
    13  abandoned cemetery; provided, however, that the cemetery board shall not
    14  approve  any  such  application unless the municipality or other solvent
    15  not-for-profit cemetery corporation acknowledges that the responsibility
    16  for restoration and future care, preservation, and maintenance  of  such
    17  cemetery  has been assumed by the municipality or other solvent not-for-
    18  profit cemetery corporation. For the purposes of  this  paragraph,  such
    19  cemetery shall always be deemed an abandoned cemetery.
    20    (5) Authorization for payments by the fund for the repair of vandalism
    21  damage  shall be made by the [secretary of state] commissioner of health
    22  only on approval by the New York state cemetery board which shall deter-
    23  mine:
    24    (i) that an act of vandalism to the extent described by  the  cemetery
    25  corporation did take place;
    26    (ii)  that either a written report of the vandalism was filed with the
    27  local police or  sheriff's  department,  or,  that  the  cemetery,  upon
    28  consent  of  the  division,  made a determination not to file the report
    29  because the publicity generated by filing the report would have  adverse
    30  consequences for the cemetery;
    31    (iii) that the cost of repairs is fair and reasonable; and
    32    (iv)  that  the  cemetery  corporation has been unable to obtain funds
    33  from the lot owner, his spouse, devisees or descendants within a reason-
    34  able period of time nor are there adequate funds in the cemetery  corpo-
    35  rations  monument  maintenance fund, if such a fund has been established
    36  by the cemetery.
    37    (6) Authorization for payments by the fund for the repair  or  removal
    38  of  monuments  or  other  markers  not owned by the cemetery corporation
    39  shall be made by the [secretary of state] commissioner of health only on
    40  approval by the New York state cemetery  board  on  application  by  the
    41  cemetery corporation showing:
    42    (i)  that the monuments or markers are so badly out of repair or dila-
    43  pidated as to create a dangerous condition;
    44    (ii) that the cost of remedying the condition is fair and reasonable;
    45    (iii) that the cemetery corporation has given not less than sixty days
    46  notice to the last known owner to repair or remove the monument or other
    47  marker and the said owner has failed to do so within the time prescribed
    48  in said notice.
    49    § 5. Paragraph (b) of section 1507-a of the not-for-profit corporation
    50  law, as added by chapter 895 of the laws of 1990, is amended to read  as
    51  follows:
    52    (b)  The  advisory council shall be composed of a member designated by
    53  the commissioner of health, a member  designated  by  the  secretary  of
    54  state, a member designated by the attorney general, [a member designated
    55  by  the  commissioner of health,] a member designated by the comptroller
    56  and a member designated by the commissioner of taxation and finance. The
        A. 10638                            4

     1  appointees to the advisory council shall not be employees of the depart-
     2  ment of health, department of state, department of law,  [department  of
     3  health,]  department  of audit and control or department of taxation and
     4  finance.    Each  of  the  members  shall serve for a term of two years,
     5  provided, however, that the first appointments by  the  comptroller  and
     6  commissioner  of  taxation  and  finance   shall serve for a term of one
     7  year. Vacancies occurring other than by  expiration  of  term  shall  be
     8  filled  in  the same manner as the original appointments for the balance
     9  of the unexpired term. Persons designated or appointed to  the  advisory
    10  council  shall have demonstrated a long-standing interest, knowledge and
    11  experience in the care and preservation of gravesites. One member  shall
    12  be  elected [chairman] chairperson of the advisory council by a majority
    13  vote of the members of such council.
    14    § 6. Paragraph (l) of section 1510 of the  not-for-profit  corporation
    15  law,  as added by chapter 821 of the laws of 1992, is amended to read as
    16  follows:
    17    (l) Removal of monument. No person  or  organization  shall  remove  a
    18  monument without authorization in the form of a court order from a court
    19  of  competent  jurisdiction, or without the written authorization of the
    20  owner of a burial plot, or the lineal descendants of  the  deceased,  if
    21  such  owner or lineal descendants are known, and without obtaining writ-
    22  ten approval from a duly incorporated cemetery association, which  asso-
    23  ciation  shall  keep  a  record  of  all  such  written  approvals.  The
    24  provisions of this section shall not prohibit the removal, in accordance
    25  with rules and regulations  promulgated  by  the  [secretary  of  state]
    26  commissioner of health, of a monument for the purpose of repair, nonpay-
    27  ment  or  adding inscriptions as authorized by a cemetery association or
    28  as permitted in this article. A violation of any provision of this para-
    29  graph shall be punishable by a fine not to exceed five hundred dollars.
    30    § 7. The opening paragraphs of paragraphs (a) and (b) of subdivision 2
    31  of section 365 of the executive law, as amended by section 11 of part AA
    32  of chapter 56 of the laws of 2019, are amended to read as follows:
    33    The division, in cooperation with  the  United  States  department  of
    34  veterans  affairs, and in consultation with, and upon the support of the
    35  department of [state] health division of cemeteries, is hereby  directed
    36  to  conduct  an investigation and study on the issue of the construction
    37  and establishment of the first New York state veterans'  cemetery.  Such
    38  investigation and study shall include, but not be limited to:
    39    Prior  to  the commencement of the investigation and study pursuant to
    40  paragraph (a) of this subdivision,  the  director  of  the  division  of
    41  veterans'  services,  the  director  of  the division of the budget, the
    42  director of the department of [state's] health's division of cemeteries,
    43  and the office of the state comptroller must certify  to  the  governor,
    44  the  temporary president of the senate, the speaker of the assembly, the
    45  chair of the senate finance committee and the chair of the assembly ways
    46  and means committee that the veterans remembrance and  cemetery  mainte-
    47  nance  and operation fund, created pursuant to section ninety-seven-mmmm
    48  of the state  finance  law,  contains  moneys  sufficient,  adjusted  to
    49  reflect  projected  future inflation, to fund the operation, maintenance
    50  and the provision of perpetual care of a state veterans' cemetery for  a
    51  period  of  not less than fifteen years, provided that such amount shall
    52  not include any amount that shall be reimbursed or  contributed  to  the
    53  cemetery  from  the  government  of the United States or any amount that
    54  would be recoverable by the cemetery pursuant to a charge of fee for the
    55  provision of a grave site for a non-veteran spouse or family member.  In
    56  making  such  a certification, the director of the division of veterans'
        A. 10638                            5

     1  services, the director of the division of the budget,  the  director  of
     2  the  department  of  [state's]  health's division of cemeteries, and the
     3  office of the state comptroller shall consider, but are not limited  to,
     4  the following factors:
     5    §  8. Subdivision 3 of section 97-r of the state finance law, as added
     6  by chapter 495 of the laws of 1988, is amended to read as follows:
     7    3. Moneys of the fund may be expended for  the  purposes  provided  in
     8  subparagraph  three of paragraph (h) of section fifteen hundred seven of
     9  the not-for-profit corporation law according to the requirements of such
    10  paragraph (h). Moneys shall be paid out of the fund  on  the  audit  and
    11  warrant  of  the  state comptroller on vouchers certified or approved by
    12  the [secretary of state] commissioner of health.
    13    § 9. Subdivision 2 of section 165 of the  general  municipal  law,  as
    14  added by chapter 363 of the laws of 1996, is amended to read as follows:
    15    2. The cemetery division of the department of [state] health is hereby
    16  authorized  and  directed  to  assist  any  municipal corporation in the
    17  organization, implementation and administration of a volunteer  cemetery
    18  maintenance  and cleanup program at the request of such municipal corpo-
    19  ration. The department  of  [state]  health  is  hereby  authorized  and
    20  directed  to  promulgate  rules and regulations setting forth the manner
    21  and form of such assistance and request.
    22    § 10. This act shall take effect one year after it shall have become a
    23  law. Effective immediately, the addition, amendment and/or repeal of any
    24  rule or regulation necessary for the implementation of this act  on  its
    25  effective date are authorized to be made and completed on or before such
    26  effective date.