Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the May 30, 2014 mailing of "Constructive Notice":

Statutory Title to Town Cemetery

An unusual fact pattern provided the Appellate Division an opportunity to clarify when title to a cemetery shall be deemed to be vested in such town pursuant to Town Law §291(1). Town of Sidney v. Scutt, 2014 NY Slip Op 03318 (3rd Dept., May 8, 2014).

The seemingly uncontroverted facts that the parcel had been used as a burial ground for more than 14 years, that a Civil War veteran is buried there, and that it contains seven or eight gravestones and at least two fenced burial plots were insufficient to establish the statutory predicate. The Town Law explicitly requires the cemetery be used by the inhabitants of the town, and the panel determined that the proffered evidence did not support a finding that the use was made by the inhabitants of Sidney. Summary judgment was therefore denied.


The opinion makes passing reference to the defendants claim of interest and use of the disputed parcel without going into further detail. Due to the Courts reasoning, the defendants assertion (and trial courts finding) of disputed facts was not reviewed on appeal. It seems that an expert analysis concerning the pre-death residency status of those interred might have saved the Town the additional time and expense of a failed motion and appeal. The Constructive Notice Newsletter will track this case for additional developments.