S T A T E   O F   N E W   Y O R K
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                                  4324

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                             March 21, 2013
                               ___________

Introduced  by  Sen.  RANZENHOFER -- read twice and ordered printed, and
  when printed to be committed to the Committee on Corporations, Author-
  ities and Commissions

AN ACT to amend the not-for-profit corporation law, in relation to regu-
  lation of cemetery trust funds and finances by the cemetery board

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Paragraphs (a) and (i) of section 1506 of the not-for-pro-
fit corporation law, paragraph (a) as added by chapter 871 of  the  laws
of 1977 and paragraph (i) as amended by chapter 292 of the laws of 1999,
are amended to read as follows:
  (a)   Purchase of land; notice to CEMETERY board [and court approval].
No cemetery corporation, in purchasing real  property  hereafter,  shall
pay or agree to pay more than the fair and reasonable market value ther-
eof.   The terms of the purchase, including the price to be paid and the
method of payment,  shall  be  subject[,  upon  notice]  to  NOTICE  AND
APPROVAL  OF  the cemetery board[, to approval by the supreme court in a
district where any portion of the land is located].  In determining  the
fair  and  reasonable  market value, the [court] CEMETERY BOARD may take
into consideration the method by which the purchase price is to be paid.
  (i) Sale or disposition of cemetery lands. (1) No cemetery corporation
may sell or dispose of the fee of all or any part of its lands dedicated
to cemetery use, unless it  shall  prove  to  the  satisfaction  of  the
[supreme  court  in the district where any portion of the cemetery lands
is located] CEMETERY BOARD,  either:  (A)  that  all  bodies  have  been
removed  from  each and every part of the cemetery, that all the lots in
the entire cemetery have been reconveyed to the corporation and are  not
used  for  burial purposes, and that it has no debts and liabilities, or
(B) that the land to be sold or disposed of is not used or is not  phys-
ically  adaptable  for  burial purposes and that the sale or disposition
will benefit the cemetery corporation and the owners of plots and graves

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09952-01-3
              

S. 4324                             2

in the cemetery, and (C) that the sale or disposition is not to a funer-
al entity as defined in paragraph (c) of section fifteen  hundred  six-a
of  this  article.  (2)  If  the sale or disposition is made pursuant to
subparagraph  (A)  of  subdivision  one  of this paragraph, the cemetery
shall satisfy the [court] CEMETERY BOARD that it is in the public inter-
est to dispose of such cemetery land in the manner  proposed;  that  the
subject land is not suitable for cemetery purposes or is no longer need-
ed  by  the  community  for such cemetery uses or purposes; and that the
subject land is being sold for its current market value. (3) If the sale
or disposition of the land is  made  pursuant  to  subparagraph  (B)  of
subdivision  one  of  this  paragraph,  the [court] CEMETERY BOARD shall
order that the consideration received by the cemetery corporation,  less
the  necessary  expenses incurred, shall be deposited into the permanent
maintenance fund established by the  cemetery  corporation  pursuant  to
paragraph  (a)  of  section  fifteen  hundred seven of this article. (4)
Notice of any application hereunder shall be given IN  ADDITION  to  the
cemetery  board, to the holders of certificates of indebtedness and land
shares of the cemetery  corporation,  and  to  any  person  [interested]
HAVING  INFORMED THE CEMETERY BOARD BY PETITION OR NOTICE OF INTEREST in
the proceeding [pursuant to section five hundred eleven of this  chapter
(Petition for leave of court)].
  S 2. Subparagraph 2 of paragraph (a), paragraph (e) and subparagraph 2
of  paragraph  (e-1)  of  section 1507 of the not-for-profit corporation
law, subparagraph 2 of paragraph (a) as amended by chapter  679  of  the
laws  of 2004, paragraph (e) as added by chapter 871 of the laws of 1977
and subparagraph 2 of paragraph (e-1) as amended by chapter 111  of  the
laws of 2000, are amended to read as follows:
  (2)  The permanent maintenance fund is hereby declared to be and shall
be held by the corporation as a trust fund, for the purpose of maintain-
ing and preserving the cemetery, including  all  lots,  crypts,  niches,
plots,  and  parts thereof. The principal of such fund shall be invested
in such securities as are permitted for the investment of trust funds by
section 11-2.3 of the estates, powers and trusts law. The income in  the
form  of  interest and ordinary dividends therefrom shall be used solely
for the maintenance and preservation of the cemetery grounds.  In  addi-
tion, the governing board of the corporation may appropriate for expend-
iture  solely  for  the  maintenance  and  preservation  of the cemetery
grounds a portion of the net appreciation, realized (with respect to all
assets) and unrealized (with respect only to readily marketable assets),
in the fair market value of the principal of the trust in excess of  its
adjusted  historic  dollar value, as defined in this subparagraph, as is
prudent under the standard established by section seven  hundred  seven-
teen  of this chapter (duty of directors and officers) and as limited by
the maximum annual appropriation defined in this subparagraph.  For  the
purposes of this subparagraph, the adjusted historic dollar value of the
trust  principal  shall  be the market value of the principal three full
calendar years prior to the effective date of  the  amendments  made  to
this  subparagraph,  plus  all  subsequent  additions thereto, minus all
allowable deductions therefrom, adjusted by the  rate  of  inflation  as
measured  by  the  applicable  consumer  price index. The maximum annual
appropriation shall be sixty percent of the average of the net  appreci-
ation in the fund for the immediately preceding three years, but only to
the  extent  that it exceeds the adjusted historical dollar value of the
fund in the current year.  Cemetery  corporations  shall  keep  complete
records  of  the adjusted historic dollar value of the permanent mainte-
nance fund. In the event that a cemetery corporation seeks to  appropri-

S. 4324                             3

ate  any percentage of its net appreciation in its permanent maintenance
fund in accordance with  this  subparagraph,  the  cemetery  corporation
shall  send a notice of such proposed appropriation by certified mail to
the cemetery board, setting forth the amount of funds to be appropriated
for  such  expenditure and its effect on the permanent maintenance fund,
and certifying that such amount  does  not  exceed  the  maximum  annual
appropriation  defined in this subparagraph. Such proposed appropriation
shall become effective sixty days after receipt of such  notice,  unless
the  cemetery  board  within such sixty-day period notifies the cemetery
corporation that  the  board  objects  to  the  proposed  appropriation.
Notwithstanding the foregoing provisions of this subparagraph, all prin-
cipal  of  the permanent maintenance fund shall remain inviolate, except
that, upon application to the [supreme  court  in  a  district  where  a
portion  of  the cemetery grounds is located, the court] CEMETERY BOARD,
THE CEMETERY BOARD may make an order permitting the principal or a  part
thereof  to be used for the purpose of current maintenance and preserva-
tion of the cemetery or otherwise. Such application may be made  by  the
cemetery  board  on  notice  to the corporation or by the corporation on
notice to the cemetery board. Unless the  cemetery  can  clearly  demon-
strate  that  it  lacks sufficient future revenue to make repayment, any
such allowance from the permanent maintenance fund shall be in the  form
of  a  loan,  and  the court shall determine the method for repayment of
such a loan by the cemetery to the fund. Any  loan  from  the  permanent
maintenance  fund  shall  be  ignored  for  the purpose of computing the
adjusted dollar value of the fund. In the event that the  [court]  CEME-
TERY  BOARD  determines  that  an  outright  grant of principal from the
permanent maintenance fund is necessary, the amount of such grant  shall
be deducted from the adjusted historic dollar value of the trust princi-
pal for the purposes of this subparagraph.
  (e)  Designation  of fiduciary corporation by directors or trustees of
cemetery corporation to act as custodians of funds. Notwithstanding  the
provisions  of  any  other  law,  the  directors or trustees of cemetery
corporations are hereby authorized to designate a bank or trust  company
to act as custodian and trustee of any or all of the respective funds of
such  cemetery corporation received by it for the perpetual care of lots
in the cemetery thereof pursuant to [subdivision] PARAGRAPH (b), of this
section, the permanent maintenance of such cemetery pursuant to  [subdi-
vision] PARAGRAPH (a) of this section, and for special purposes pursuant
to  [subdivision]  PARAGRAPH (f) of this section. Such corporate trustee
shall be designated by a resolution duly adopted by the board of  direc-
tors  or trustees [and approved by a justice of the supreme court of the
judicial district in which the cemetery of said corporation is located];
and the directors or trustees of such cemetery  corporation  may[,  with
the  approval  of  the justice of the supreme court,] revoke such trust,
and either take over such trust fund or name another trustee  to  handle
the  same, but if not so revoked, such trust shall be perpetual.  NOTICE
OF SUCH A CHANGE IN DESIGNATION SHALL BE PROVIDED TO THE CEMETERY  BOARD
WITHIN SIXTY DAYS OF SUCH DESIGNATION BY THE BOARD OF DIRECTORS OR TRUS-
TEES  OF  THE  CEMETERY CORPORATION. Any bank or trust company accepting
any such cemetery fund shall keep  the  same  separate  from  all  other
funds,  except  that  it may, irrespective of any provision contained in
this article invest the same in a legal common trust fund or  in  shares
of  a  mutual  trust investment company organized under the banking law,
and shall pay over the net income to the directors or  trustees  of  the
cemetery  corporation  by  whom  it shall be expended and applied to the
purpose for which such trust fund was paid to the cemetery  corporations

S. 4324                             4

and accounted for in accordance with such [subdivisions] PARAGRAPHS (a),
(b) and (f) of this section.
  (2)  The principal of the fund shall be invested in securities permit-
ted for the investment of trust funds by sections 11-2.2 and  11-2.3  of
the  estates,  powers  and  trusts law. The principal of such fund shall
remain inviolate, except that upon application to the [supreme court  in
a  district  where  a  portion  of  the cemetery grounds is located, the
court] CEMETERY BOARD, WHICH may make an order permitting the  principal
or  a  part  thereof  to  be used for the purpose of restoring monuments
damaged or defaced by an act of vandalism. The income arising from  such
investment  shall  be  used  solely for the costs and expenses resulting
from an act of vandalism against monuments in such cemetery.
  S 3. Paragraph (c) of section 1513 of the  not-for-profit  corporation
law,  as added by chapter 871 of the laws of 1977, is amended to read as
follows:
  (c) Resale by lot owner. Before any burial shall have been made in any
such lot, plot or part thereof, or, if all the bodies therein have  been
lawfully  removed,  the  lot  owner may sell or convey such lot, plot or
part thereof [subject to the prior approval of the cemetery board.  Such
approval  shall not be granted unless] UPON NOTICE TO THE CEMETERY. SUCH
SALE SHALL ONLY OCCUR IN THOSE INSTANCES WHERE the owner  of  such  lot,
plot  or  part thereof shall have offered it to the cemetery corporation
within [two years] ONE YEAR prior to the [application for such approval]
SALE, in writing by registered or certified  mail,  at  the  price  paid
therefor by said lot owner, together with simple interest at the rate of
four  per  centum  per  annum,  and  the cemetery corporation shall have
failed to accept such offer within thirty days after the making thereof.
[In the event the lot owner shall have acquired the lot,  plot  or  part
thereof  other  than  by purchase, and provided the cemetery corporation
and the lot owner cannot agree upon a price, the  cemetery  board  shall
fix  a price therefor. In arriving at the price the cemetery board shall
take into consideration the original price for which the cemetery corpo-
ration sold the lot, plot or part thereof, and any  other  circumstances
or  factor  which equitably relates to the price. The] SUBSEQUENT TO THE
RECEIPT OF NOTICE OF SALE OF SUCH LOT, PLOT OR PART THEREOF, THE  secre-
tary  of the cemetery corporation shall file and record in its books all
instruments of transfer. An owner may convey or  devise  to  the  corpo-
ration his right and title in and to any such lot, plot or part thereof.
  S 4. This act shall take effect immediately.