אטורני דזשענעראל שפיטצער ראטוועט ביה"ח

Graves dispute intensifies
By KEN VALENTI
THE JOURNAL NEWS


Two days before a mystery over graves relocated from the Costco-Home Depot development in Yonkers comes to court, the state Attorney General's Office filed new legal papers yesterday underscoring the role the shopping center's developer played in the case.

The seven-page filing bolsters the accusation that Morris Industrial Builders played a role in relocating bodies in 1989 before acquiring the half-acre Orthodox Jewish cemetery near the New York State Thruway as the company sought to build the stores.

A lawyer for Morris has said the company's role in the relocation was to pay the bill to have the work done by Plaza Memorial Chapel, which he called the vendor for the defunct Congregation People of Righteousness. The congregation owned the cemetery.

Court oversight of the sale of the cemetery was required under state law. Fraser Seitel, a spokesman for Morris, said the company had properly carried out the task under the order of a judge.

"As far as the builders were concerned, they did everything, respectfully, that the courts agreed should be done," Seitel said.

But the attorney general's new papers assert that Morris dealt directly with the families of those buried in the graveyard even before hiring Plaza. In one case, the papers say, Morris paid a New Jersey brother and sister $20,000 to file an affidavit consenting to the moving of several of their relatives. Seitel said he did not know about any such payment.

Questions about the fate of those buried in the cemetery emerged when New York Attorney General Eliot Spitzer filed an affidavit in state Supreme Court questioning whether the relocation effort was properly executed. That affidavit alleged the contractor in charge of relocating the bodies could have misled the public, and that the company may never have removed about 130 children's remains from the site.

A lawyer for Plaza — now called Plaza Community Chapel — raised doubts yesterday that those children ever really existed.

Attorney Stephen Axinn said Michael McFadden of Plaza searched diligently for three weeks, always accompanied by at least one rabbi, to find all remains in the cemetery. "Everything humans could have done to obtain the remains of every body buried in that cemetery was done, and done to the satisfaction of the supervising Orthodox rabbis," Axinn said.

Most of the remains were moved to Eretz HaChaim Cemetery near Jerusalem. Gary Brown, the assistant attorney general in charge of the case, acknowledged it is difficult to say whether any bodies were buried in the children's section.

"We don't know yet," he said. "We know that the bodies were not moved. Whether they were ever there in the first place remains unclear."

He added, however, that if McFadden had reported his findings in 1989 to the court overseeing the sale of the cemetery, it would have been easy to check. Axinn said McFadden was following his contract when he reported that "all human remains" were moved.

A hearing on the matter will be held before Justice Joan B. Lefkowitz in White Plains tomorrow. The central question in the case is whether Morris Industrial Builders misrepresented its expenses in moving the remains when seeking a judge's approval of the purchase. State law requires a judge's approval when a nonprofit organization — in this case, the congregation — sells property.

The law is meant to ensure the purchaser pays an adequate amount. In this case, Morris' payment to the cemetery was the moving of the graves. If it cost less, then the judge may have given the approval based on false information.

But the more emotional aspect of the ordeal has been the mystery of what happened to the children's remains. One key is a map that gives the impression that 147 children and 94 adults were buried at the site. In particular, it shows one area with many smaller graves marked with X's meant to represent children. But the remains of only 65 adults and about 12 children were found by the Attorney General's Office in Eretz HaChaim. An additional 20 were moved to other cemeteries with the families' approvals.

The children's bodies are buried two to a grave in Israel — a fact that was not given to the court, according to the papers.

The X-marked graves on the map, however, may have shown plots meant to be set aside for children in the future, not actual graves, Axinn said.

The area designated for children was rocky, overgrown and contained no grave markers or foundations for monuments, he said. It can't be checked now because it no longer exists, given the development at the site now, which includes Costco, The Home Depot and, higher along the hill, a Stew Leonard's supermarket. Axinn said McFadden worked hard to account for everyone there, in one case calling the family of a man whose artificial hip he found buried at the site.

When he did not find the children's bodies, he followed the rabbis' advice and sent two bags of dirt to the Israeli cemetery. Brown had said that McFadden reported finding no children's bodies, a claim contradicted by the discovery of some children's remains believed to be from the Yonkers site at the cemetery in Israel.

Axinn said McFadden did not remember making any such claim. The attorney said some of the children's bodies that were discovered were in another section set aside for them — an area that still had room for more bodies, and where graves were marked. The other children were found buried with their families, Axinn said.

Estimates obtained by the attorney general placed the cost of transferring the remains between about $275,000 and $600,000. Morris agreed to pay Plaza no more than $213,668 — and that presumed relocating 147 children, according to court papers. Also, Morris did not disclose to the court that it had received a $300,000 tax credit from the Westchester Industrial Development Agency.



Reach Ken Valenti at [email protected] or 914-637-2243. Reach Ken Valenti at [email protected] or 914-637-2243.