When Martin Mendelsohn died in September, his brother’s plans to have the remains cremated ran into some surprising opposition: The Hasidic owner of the dead man’s retirement home sued to have the body buried instead.
Philip Schonberger, who runs the Evergreen Court Home for Adults, in Spring Valley, New York, thought Mendelsohn’s brother, Steven, was making a terrible mistake by opting for cremation.
“Why would a person who loved Judaism and practiced to the best of his ability want to be cremated?” Schonberger said. Cremation is strictly banned under Orthodox law.
What followed was a bizarre court case in which odd details of Martin Mendelsohn’s spiritual life were picked apart — he lit Hanukkah candles but wasn’t averse to shrimp at a Red Lobster restaurant — as both sides sought to marshal religious arguments to back up secular legal strategies.
Complicating things, Martin Mendelsohn left no will. A straightforward reading of New York state law would give Steven Mendelsohn, as next of kin, the right to decide what happens to his brother’s remains.
Nonetheless, Schonberger filed papers days after Martin Mendelsohn’s September 15 death to block the cremation. He raised money to pay his legal expenses for the suit with an online advertisement that asked donors to “Act Now” to “Save a Fellow Jew From Cremation!”
The struggle ended on November 25, after Schonberger lost his final appeal and Martin Mendelsohn’s body, which had been in a funeral home refrigerator, was finally sent off for cremation.
For Steven Mendelsohn, the wait had been excruciating.
“Every passing day he cannot properly grieve his brother’s passing and memorialize his brother’s life,” said his attorney, Brendon DeMay, an associate at Holwell Shuster & Goldberg.
The lawsuit is part of a broader legal strategy pursued by the ultra-Orthodox umbrella group Agudath Israel of America, which advised Schonberger in his case.
The Agudah seeks to increase the deference given to the religious beliefs of people who can’t act for themselves in end-of-life situations. A subsidiary of the Agudah has filed suits to keep brain-dead patients on life support despite the opposition of their health care proxies.“One of the long-standing themes of the advocacy that we have done… [is] that the one who is going to be making the decision take into consideration the patients’ or decedents’ religious belief,” said Rabbi David Zwiebel, the Agudah’s executive vice president. New York State Public Health Law is clear about who gets to choose a body’s final rites: If the deceased left a will indicating who would be responsible for his or her body, the person indicated has top priority. If there is no will, the right to decide follows a clear order: spouse, domestic partner, adult children, parents, adult siblings and so on.
Martin Mendelsohn left no will, and had no spouse, domestic partner, children or living parents, and had no other siblings. The decision, therefore, became his brother’s to make.
Yet the same law requires that the person who handles the disposition of the body should do so “in a manner appropriate to the moral and individual beliefs and wishes” of the deceased person. Schonberger and his attorneys believed they could prove that Mendelsohn would have wanted to be buried and not cremated.
There, though, they had a problem. Mendelsohn had been a private, lonely man who belonged to no synagogue and who rarely discussed his religious beliefs. So Schonberger’s attorneys set out to draw together disparate incidents from Mendelsohn’s lifetime to prove he would not have wanted to be cremated.
The hearings at the Rockland County Courthouse devolved into a divination of Martin Mendelsohn’s beliefs based on odd facts about services he had attended, food he had eaten and the religious beliefs of a roommate.
A former employee of Schonberger’s retirement home, Rabbi Sholom Sperlin, testified about Mendelsohn’s religious habits. “Would Mr. Martin Mendelsohn… participate in [Hanukkah],” asked Beth Finkelstein, one of Schonberger’s attorneys.
“Yes, he used to light,” Sperlin responded, according to a 200-page transcript. “He used to light one of the menorahs.”
“And when he would light one of the menorahs, would he recite anything?” Finkelstein asked.
“Yes, in English, there was a prayer and he used to say that,” Sperlin said.
During the cross-examination, DeMay returned to the Hanukkah lightings. “And Reform Jews light Hanukkah candles; is that right?” he asked, alluding to Reform Judaism’s softer line against cremation.
“Yes,” Sperlin said.
Later, discussion turned to Martin Mendelsohn’s eating habits. While his retirement community was kosher, Steven Mendelsohn testified that he and his brother often ate together at non-kosher restaurants.
“He wanted to go to the Red Lobster,” Steven Mendelsohn said.
“And what would you get at the Red Lobster?” DeMay asked.
“Various things,” Mendelsohn responded. “On several occasions he would try a piece of whatever I had.”
“Including shrimp?” DeMay asked.
“Including shrimp,” Mendelsohn said.
Later, the trial judge, Victor J. Alfieri, suggested to Steven Mendelsohn that perhaps he should allow burial “as a religious insurance policy.”
“Maybe you’re right. Maybe you’re wrong. Maybe there’s a hereafter. Maybe there’s not,” Alfieri said to Mendelsohn. “What skin is it off your nose to bury instead of cremate?”
Mendelsohn, who lives in California, said he was sure that his brother “didn’t want to be alone.”
Despite Alfieri’s suggestion, he decided against Schonberger. In his opinion, issued October 28, the judge found that the evidence put forth by Schonberger’s side failed to demonstrate that Martin Mendelsohn’s beliefs required that his brother’s wish to cremate him be overruled.
“Evidence showed that Martin attended various services…. In one photo, the back of Martin’s uncovered head is depicted at a shofar ceremony,” the decision acknowledged. “There is no evidence that the decedent was a member of the synagogue or temple…. There was no evidence to show that Martin said Jewish prayers as required in the morning or at night…. Nor did Martin have a bar mitzvah ceremony.”
An appeal to an appellate court in Brooklyn was denied, as was a last-minute appeal for an emergency stay to the Court of Appeals in Albany, the state’s highest court.
For Schonberger, the effort was personal.
“I knew how this man lived,” he said. “Here there was no will. And I saw how this man lived. I lived with this man. He’s lived with my family’s facilities for over 15 years.”
Schonberger, whose family owns five assisted living facilities in New York State, acknowledged that he had never discussed Mendelsohn’s wishes for burial with him. “I’m not a social worker,” he said. “I’m just an owner. We talked about happy things… I don’t think such a man wanted to be cremated when it’s against Jewish law and tradition.”
Schonberger said that his legal bills had reached nearly $40,000. A fundraising campaign on the website GoFundMe, advertised with an image of a coffin being pushed into a fiery furnace, had raised nearly $30,000.
“My condolences to the family and all his friends,” Schonberger said shortly after learning that the Court of Appeals judge had refused to block the cremation. “We’re just hoping and praying for a miracle.”
Josh Nathan-Kazis is a staff writer for the Forward. He covers charities and politics, and writes investigations and longform.