
    Ben Mendelsohn, Petitioner, v Philip L. Toia, as Commissioner of Social Services, et al., Respondents.
    Supreme Court, Westchester County,
    September 14, 1977
    APPEARANCES OF COUNSEL
    
      David Brainin, County Attorney, for Charles W. Bates, respondent. Louis J. Lefkowitz, Attorney-General, for Philip L. Toia, respondent. Gerald Norlander for petitioner.
   OPINION OF THE COURT

Anthony J. Ferraro, J.

Respondent Bates makes a motion to dismiss the petition upon the ground that Park West Memorial Chapel, Inc. should have been made a party to this proceeding. The proceeding is maintained to reverse the determination of respondents which denied payment of burial expenses for petitioner’s wife.

Respondents have refused to make any payment toward burial expenses because the cost exceeded $650. It is the established policy of respondents to deny any payment if the burial expenses exceed $650.

The obvious purpose of the above policy is to penalize undertakers who charge more than the amount deemed reasonable by the respondents for burial of welfare recipients. Although respondents may be within their right in paying only reasonable burial expenses their refusal to pay anything because the bill exceeds what they consider fair and reasonable is clearly discriminatory and arbitrary. The policy adopted by respondents not only deprives the funeral director of $650, the amount which is concededly fair and reasonable, but also in effect penalizes the welfare recipient who has to absorb even the amount deemed reasonable by respondents.

Man does not live on bread alone. Peace of mind, tranquility of soul, satisfaction of conscience and the need to perform the duty of providing a decent burial and comfortable resting place for the mate of a lifetime are just as essential to survival on earth as food itself. Proof of this fact is borne out in this very case by petitioner who has scrimped from his meager welfare allowance to make monthly payments to the undertaker.

Although respondent Bates claims that Park West Memorial Chapel Inc. is an aggrieved party, the opposite is true by its own standard because Park West Memorial Chapel, Inc. (Chapel) has already received more than the $650 which respondent considers fair and reasonable for burial. In respondent’s eyes, the Chapel is not aggrieved and has more than adequately been paid. Respondent may not close its eyes to its own rules and obtain a dismissal in violation thereof. The only person truly aggrieved is the petitioner who has laid out the $650 and more. The motion to dismiss the petition is therefore denied.

Respondent Bates seeks leave to serve an answer if the motion to dismiss is denied. The petition is deemed denied for the purposes of considering the validity of respondents’ policy to deny any payment if the bill of the undertaker exceeds $650. This issue raises a purely legal question which the court resolves in petitioner’s favor. The respondents are therefore directed to pay to petitioner the sum of $650 for burial expenses.

Respondent may serve an answer to the petition within 20 days and a note of issue may thereafter be filed by either party for a determination of any remaining issues by the Justice presiding at Special Term Part I.  