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Title 19 Part 200
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(a)The Not-for-Profit Corporation Law may be cited herein as
N-PCL.
(b)The Division of Cemeteries of the Department of State may be referred to as the
division.
(c)The Director of the Division of Cemeteries of the Department of State may be referred to as the
director.
(d)For purposes of administration and reporting requirements, cemeteries shall be classified as follows:
(1)The term
small cemetery corporation means any cemetery corporation which had, at the end of the preceding calendar year, less than $1,000,000 in total financial assets.
(2)The term
medium cemetery corporation means any cemetery corporation which had, at the end of the preceding calendar year, at least $1,000,000 but less than $10,000,000 in total financial assets and which had under $1,000,000 in total receipts in the preceding calendar year.
(3)The term
large cemetery corporation means:
(i)any cemetery corporation which had, at the end of the preceding calendar year, $10,000,000 or more in total financial assets; or
(ii)any cemetery corporation which had $1,000,000 or more in total receipts in the preceding calendar year.
(4)The term
non-traditional cemetery corporation means any cemetery corporation which does not offer and has not in the past offered full body ground burials. A non-traditional cemetery corporation is excluded from the terms small, medium and large cemetery corporation.
(e)The term
total financial assets includes all general funds, permanent maintenance funds, perpetual care funds, special trust funds and other funds under the control of the cemetery, including both restricted and unrestricted funds, regardless of the form in which they are held.
19 NYCRR 200.2 - Applications for orders or determinations
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(a)All applications required to be made to the Cemetery Board for orders or determinations, except applications for approval of rates and charges or for authority to issue certificates of indebtedness, pursuant to sections 1509(a)-(e) and 1511(a) of the Not-for-Profit Corporation Law, shall be determined and the orders made by the director in the first instance.
(b)A party aggrieved, by an order or determination so made by the director, may file a protest with the Cemetery Board within 30 days after the effective date of such order or determination.
(c)If a protest be not filed with the Cemetery Board within 30 days after the effective date of the order or determination made by the director, said order or determination shall be considered the final order or determination of the Cemetery Board unless (1) the time to file a protest is, for good cause, extended by the Cemetery Board, or (2) the Cemetery Board, within 60 days after the effective date of the order or determination made by the director, shall upon its own action make an order or determination modifying, amending, supplementing or rescinding the order or determination of the director.
(d)The protest shall specify the objections to the subject order or determination. The board, in passing upon the protest, will consider only those objections so specified and may afford a hearing or limit the protestant to the filing of affidavits or memoranda.
(e)The filing and determination of a protest to the Cemetery Board shall be a prerequisite to obtaining judicial review of any order or determination made by the director under section 200.1 of this Part.
(f)Any protest not acted upon by the Cemetery Board within 60 days after the filing thereof shall be deemed to be denied in all respects.
(g)The director shall make a determination in respect of such matters as are authorized to be made by him under subdivision (a) of this section, within six months after the application is submitted to him in complete form. Should the director require additional information, time to render his decision is extended by the time required for the cemetery to comply with such request.
(h)
(1)A party aggrieved by an order or determination of the Cemetery Board, made pursuant to sections 1509(a)-(e) and 1511(a) of the Not-for-Profit Corporation Law, may file a protest with the Cemetery Board within 30 days after the effective date of such order or determination.
(2)The time to file a protest may be extended by the Cemetery Board for good cause shown, but solely in the discretion of the board.
(3)The protest shall specify the objections to the order or determination. The protest may include a request for a hearing, in which event the board shall grant a hearing to be held within a reasonable time thereafter.
(4)After formal proof is introduced at such a hearing by the party aggrieved, then at the request of such party, the official data and calculations on which the board's order or determination was based shall be made available to the applicant.
(5)At least 10 days' written notice of the time and place of a hearing shall be given by the Cemetery Board to the applicant requesting the same at its principal place of business. Such applicant may be represented by counsel at such hearing.
The Cemetery Board or any member of the board, or deputy or other person duly authorized by the board, may hold and conduct such hearing, and shall have the power to administer oaths and take testimony.
(6)Hearings shall be held at such place or places as the board may designate.
(7)A full record of the proceedings of every hearing shall be taken. Such record, together with the recommendations of the hearing officer, if the hearing is not conducted by the board, shall be referred as soon as practicable to the board for review and decision, all of which shall be deemed a part of such record. The cost of the stenographic record of such hearing shall be borne by the applicant.
(8)Within a reasonable time after the conclusion of a hearing held pursuant to this section, the board shall make its final order or determination in the matter. A copy thereof shall be mailed to the applicant and to its counsel, if any.
(i)An application made to the Cemetery Board pursuant to section 1509(a)-(e) of the Not- for-Profit Corporation Law shall be determined by the board within six months after the application is submitted in complete form, except that should the board request additional information, the time to render its decision is extended by the time required for a cemetery to comply with such request.
19 NYCRR 200.3 - Filing of financial reports by cemeteries
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(a)Every cemetery corporation shall file an annual financial report with the division within 90 days following the close of the cemetery's fiscal year. The annual report shall be filed or submitted in the form and manner prescribed by the division, whether by mail, electronically, or otherwise.
(b)The annual report shall be signed by at least two officers or directors of the cemetery corporation, shall include a completed division financial report, DOS-415, and shall include any Federal Form 990 filed by the cemetery for the preceding calendar or fiscal year. The Form 990 shall be filed or submitted in the manner prescribed by the division, whether by mail, electronically or otherwise.
(c)In addition, every medium, large and non-traditional cemetery corporation and any cemetery directed to do so pursuant to section 200.4(d) of this Part shall also file a CPA financial report.
19 NYCRR 200.4 - CPA financial reports
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(a)Every medium cemetery corporation shall file a CPA financial review with the division within 90 days following the close of the cemetery's fiscal year. The review shall be conducted by an independent certified public accountant or an independent enrolled public accountant. It shall be supplemented by the following data:
(1)a description of the extent of the physical examination of the cash and investments;
(2)a statement concerning the internal controls for safeguarding the cash and investments;
(3)a statement concerning compliance with N-PCL section 1507(c) and (d) indicating whether separate accounts are maintained for each perpetual care endowment reflecting the principal amount, the income apportioned for the year, the cost of care charged for the year, and the excess of income credited to such account to be used in future years;
(4)a statement concerning the accountability for the permanent maintenance fund, indicating whether the cemetery's records separately identify cumulative principal reflecting allocations from the proceeds of the sales of lots and from supplemental sources, cumulative capital gains or losses from investments, and the retained income available for the maintenance and preservation of the cemetery; and
(5)a statement concerning the accountability for the perpetual care fund, indicating whether the cemetery's records separately identify cumulative principal for endowment, cumulative capital gains or losses, and the cumulative income retained for use in future years.
(b)Every large and non-traditional cemetery corporation shall file a CPA financial audit with the division within 90 days following the close of the cemetery’s fiscal year. The audit shall be conducted by an independent certified public accountant or an independent enrolled public accountant expressing an opinion in connection with the financial statement filed with the division. The opinion shall be supplemented by the following data if applicable to the filing cemetery:
(1)a description of the extent of the physical examination of the cash and investments;
(2)a statement concerning the internal controls for safeguarding the cash and investments;
(3)a statement concerning compliance with N-PCL section 1507(c) and (d) indicating whether separate accounts are maintained for each perpetual care endowment, reflecting the principal amount, the income apportioned for the year, the cost of care charged for the year, and the excess of income credited to such account to be used in future years;
(4)a statement concerning the accountability for the permanent maintenance fund, indicating whether the cemetery's records separately identify cumulative principal reflecting allocations from the proceeds of the sales of lots and from supplemental sources, cumulative capital gains or losses from investments, and the retained income available for the maintenance and preservation of the cemetery; and
(5)a statement concerning the accountability for the perpetual care fund, indicating whether the cemetery's records separately identify cumulative principal for endowment, cumulative capital gains or losses, and the cumulative income retained for use in future years.
(c)For any non-traditional cemetery, the opinion shall also be supplemented by the following data if applicable to the filing cemetery:
(1)a statement indicating whether funds, accounts, assets, and liabilities of the cemetery corporation are kept separate and distinct from the funds, accounts, assets, and liabilities of any related for-profit entity;
(2)a statement indicating whether the income and expenses of the cemetery corporation are kept separate and distinct from the income and expenses of any related for-profit entity; and
(3)a statement indicating whether any transaction between the cemetery corporation and any related for-profit entity are arm’s length, fair and reasonable.
(d)The division may, upon application by a medium or large cemetery, modify the reporting requirements for such cemetery if the cemetery demonstrates to the satisfaction of the division that the requirements of this section and the cost of compliance are onerous and unreasonable and may, upon evidence of possible financial irregularity or non-compliance, order a small or medium cemetery to comply with the requirements of subdivision (b) of this section.
19 NYCRR 200.5 - Additional information and reports
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Nothing herein limits or impairs the power and authority of the cemetery board pursuant to N-PCL section 1508(b) and other provisions of article 15 of the N-PCL.
19 NYCRR 200.6 - Commercial crime insurance coverage
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(a)Every cemetery corporation shall carry commercial crime insurance or similar insurance coverage for the acts or omissions of cemetery directors, officers, and employees as well as volunteers who handle money, accounts or securities for the cemetery.
(b)The annual financial report filed with the division shall set forth the amount of commercial crime coverage, the classes of persons included, the name of the carrier/issuer, the policy number, and the expiration date of coverage.
(c)The amount of coverage required is $15,000 or 10 percent of total financial assets, whichever is greater, up to a maximum of $500,000. Notwithstanding the foregoing:
(1)the division may, at its discretion, order a cemetery to obtain commercial crime coverage in excess of $500,000 if it determines that an increase in coverage is appropriate and that such coverage is readily available in the marketplace. A cemetery subject to such order may file a protest with the Cemetery Board pursuant to section 200.2(b) of this Part; and
(2)upon application as prescribed by the division showing good cause for such relief, a cemetery may request that the division reduce, waive or modify the requirements under this section. Good cause may include proof that the cemetery is unable to obtain commercial crime insurance or similar coverage despite diligent effort, or that the cost of such coverage at the level required by this section is onerous and unreasonable.
19 NYCRR 200.7 - Location of offices
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(a)The principal office of the State Cemetery Board is located at 123 William Street, New York, NY 10038-3804.
(b)All communications, papers, maps or copies thereof, reports or documents shall be addressed to or filed in the principal office of the State Cemetery Board unless otherwise directed by the division.
(c)Orders by the State Cemetery Board may be filed in its principal office or its Albany, New York branch.
(d)There are branch offices at One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231-0001; State Office Building, 207 Genesee Street, Utica, NY 13501-3744; Hughes State Office Building, 333 E. Washington Street, Syracuse, NY 13202-1418; 44 Hawley Street, Binghamton, NY 13901; and 65 Court Street, Buffalo, NY 14202-3471.
19 NYCRR 200.8 - [Repealed]
Repealed or removed in compiled source
The compiled source records this section as repealed. We hold the witnessed tombstone record; see the source for details.
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19 NYCRR 200.9 - Application for extension of time
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An application for extension of time within which to file any annual or periodic report with the State Cemetery Board or the division shall be filed before the expiration of the period prescribed and shall set forth in detail:
(a)the effort made by the applicant to prepare such report; and
(b)the further period of time required to file such report.
19 NYCRR 200.11 - State cemetery vandalism restoration, monument repair or removal and administration fund
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(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.