A Meis Mitzvah, Cremated

Mr. Chesky Schonberger, owner and director of Evergreen, is not a professional askan but a caring Yid who spent months of his time and over thirty five thousand dollars to try to ensure that Martin would be buried as a Jew. The painful and exhausting court process consumed his emotions, energy and finances. In the end, although Mr. Schonberger was able to prove that Martin was interested in Jewish traditions and deeply desired a Jewish burial, the court ruled in the favor of Martin’s next of kin.

We spoke to Mr. Schonberger at length the day after Martin was cremated, his ashes FedExed to California to grace his brother’s coffee table.

Mr. Schonberger, having read about your determination and unceasing efforts to give Martin his final honor, we feel privileged to speak with you.

The privilege is mine.

After you heard the judge’s final verdict, which did not take the evidence into account, how did you feel?

How I felt is irrelevant. The main thing is to accomplish, to keep doing the right thing. The results are not in our hands, and never were in our hands.

My rov, Rav Hershel Rabinowitz, told me a very nice vort in the name of the Shinever Rebbe, the Divrei Yechezkel. He explained that when Avrohom Avinu davened for Sedom to be spared, he exerted much time and effort on his tefillah. However, when his tefillah was rejected, the posuk says, “Veavrohom shov lemekomo, And Avrohom returned to his place.” He had no tainos or comments on Hashem’s judgment.

In the end, though we tried everything, the decision was out of our hands. It wasn’t bashert for Martin to merit being brought to kever Yisroel. Still, for two months, while we fought it out in the courts, his body remained whole, which is also a zechus. Perhaps this story will serve as a warning for others whose relatives have left no clear instructions to ensure that they don’t go through a similar situation.

Do you think the case was skewed against burial to begin with?

Well, in New York the law heavily favors the next of kin. In addition, Martin’s brother Steven, who had intermarried, had a clear agenda. From the moment he heard that Martin passed on, that the medical examiner had declared him dead, Steven told the aides at Evergreen to immediately arrange for his cremation before the “Orthodox Jews” could get involved. He also rejected our generous offers for ten and later twenty thousand dollars to be given to a charity of his choice.

In addition, many of our plans went wrong at the last moment. For example, we were supposed to get a letter from an expert to give to the initial judge, but we never received it. The judge was scheduled to meet with us, but we were booted out of the courthouse due to red tape. One of Martin’s former roommates, an Orthodox Jew, was scheduled to testify on our behalf, but wasn’t feeling well.

Ultimately, if something is not bashert, no matter how much time and energy you invest, it won’t happen. Still, that doesn’t mean we are not obligated to try our best. The results were never in our control.

Can you give us a bit of background about this case and how it began?

I am the CEO of Evergreen Court, an adult care facility located in Spring Valley, New York. Our guests are Jewish and non-Jewish, but the entire facility is kosher. We also have a minyan and special services for yomim tovim, including blowing the shofar on Rosh Hashanah, menorah lighting on Chanukah, and a traditional seder on Pesach.

Mr. Martin Mendelsohn moved into our facility from Brooklyn in 2004. He was a former accountant for the city who never married and had no family. His mother had passed away when he was very young, and he lived alone for years. His only relative was a brother, Steven, who lives in California and visited sporadically. Steven was a lawyer who had put himself through law school although he is legally blind. He is also a very tough and determined man who will stop at nothing to promote his agenda.

Martin often reminisced about his departed parents, who had been traditional and sent him and his brother to Hebrew classes at the Yeshiva of Bensonhurst. In fact, when he first joined our facility, Martin paid an additional fee for religious services, including a personal seder plate at the seder, the chazan for the Yomim Noroim, and the special holiday meals, which were served later.

On the first day of Rosh Hashanah, Martin complained he wasn’t feeling well. Nevertheless, he got out of bed, eager to hear the shofar’s call. A young Lubavitch rabbi who lived in the area generously volunteered to blow the shofar for the residents. The head of recreation recalled that Martin had been first in the room, waiting for the rabbi to come.

That night, Martin went to bed, but he didn’t wake up in the morning. He was sixty-nine years old.

When did you hear of the tragic news?

I was notified as soon I came to the home on the morning of Tzom Gedaliah. Nancy, one of the supervisors, told me that Martin’s body had been taken to Hellman Memorial Chapel, and the next of kin had been informed.

I immediately contacted the funeral home to inform them that Martin was Jewish, and that I was prepared to pay for a full Jewish burial, including a plot, tachrichim, and a minyan to say kaddish at the gravesite. It was the least I could do for Martin, who had been a kind and caring resident at Evergreen for years.

The manager of the funeral home replied, “I’m really sorry, sir, but the brother of the deceased, Steven Mendelsohn, called from California with instructions for his brother’s remains to be cremated. He wants us to ship them via FedEx to California so that Martin should not be alone.”

I was shocked. I knew that Martin had a brother, Steven, with whom he was in occasional contact, but I didn’t expect that his brother had cremation in mind. I immediately looked up Steven’s number and called to offer my condolences. I told him that I was very sorry for his loss, that Martin had been such a kind and caring soul, giving his morning paper to a 95 year old woman to read, and only then taking it for himself.

The brother was very cold and abrupt, not really interested in hearing from me. When I started talking about funeral arrangements and my offer to pay for the entire funeral and burial in a cemetery of his choice, he became very nasty. “I am not interested in your money,” he said firmly. “I just want my brother cremated, and his ashes near me. He never wanted to be alone, and now he will be next to me, in my living room.”

“Your brother was very interested in Jewish traditions,” I tried to reason with him. “He joined us for Rosh Hashanah services and the blowing of the shofar just a day before his passing. Why would you want to do something that will cause his soul pain and distress?”

It was like talking to a wall. Steven was completely uninterested in anything I had to say. He repeated that he wanted his brother cremated as soon as possible, and that myself and my ilk should mind our own business and mix out of the case.

I put down the phone, shaken and disturbed. Now I realized that this simply wasn’t a matter of finances, that Steven had an agenda and wanted to prove a point. However, I had no intention of simply allowing him to win. I felt that Martin deserved that I should fight to prevent his body from being desecrated.

Although Steven was determined to cremate his brother to make sure he was finally at peace, anyone who knows about how cremation works will agree that it is a brutal way to treat one’s loved ones. The body is burned in an oven at 1800 degrees and then the bones are pulverized.

What did you do next?

I immediately started doing research on Martin’s life, trying to obtain proof that he was interested in religion and would have desired a Jewish burial. I also called a Chabad rabbi from California who frequently deals with these issues and asked him to give Steven a call. Perhaps Steven would have some respect for a local rabbi who understood his mentality. The rabbi called back a half hour later, noticeably disturbed. “I never dealt with such a cold fish!” he declared.

The following day, the second day of Aseres Yemei Teshuvah, I contacted Isaac Lieder from Chesed Shel Emes, who would become an invaluable asset in this battle, and whose expertise and dedication knows no bounds. Together we would fight this case in court for over two months, during which we experienced numerous chasodim.

We hired a local attorney who specializes in wills and estate planning. Mark Kurzman Esq. explained that we were fighting an uphill battle, as the laws in New York State heavily favor the next of kin. Still, I refused to back down. Martin was our guest at Evergreen, and we would do everything we could to give him his final honor.

Our first goal was to find Jewish artifacts or religious items among Martin’s belongings. I called the front desk at Evergreen and asked the aides to go through his items. “I’m really sorry, but you are too late,” Nancy, who works at the front desk, told me. “Last night Steven called and ordered us to quickly dispose of all Martin’s belongings. He said, ‘I know the Jews are gonna come and try to fight me.’ The aides took his personal items to the trash, which was picked up this morning.”

I realized we were dealing with a savvy opponent who would stop at nothing to achieve his aims. Though I had everything to lose and nothing to gain personally, this wasn’t about me.

Did the staff at the home assist you in this?

They were very gracious and eager to help. During our conversation, Nancy said, “It’s funny that you’re talking about Martin’s Jewish belongings. On the day before he died, he was one of the first to join the group of men who heard the shofar blown. He made an effort to get dressed even though he wasn’t feeling well.”

I asked Nancy if she had been there, but she said she hadn’t. However Nicole, the Director of Recreation, had witnessed the scene. I spoke to Nicole, who mentioned that she had snapped a picture of the ‘man blowing the horn,’ and Martin was in the background. Now I had my first real piece of evidence.

We located the picture and had it enlarged, and I told Nicole I might need her as a witness. However, there was one issue: what if the court rejected the picture, saying that it didn’t prove he actually made the effort to hear the shofar? Perhaps he was in the dining room anyhow, to eat breakfast?

Nicole explained that the shofar blowing took place in the recreation room, and Martin had gone there deliberately. We reviewed CCTV footage from the first day of Rosh Hashanah and saw Martin, who was frail and weak, shuffling to the special room to hear the shofar blown.

Now that we had a small victory, we decided to expand our research.

Though legally we have to keep all paperwork for only seven years, I am not always so organized and haven’t disposed of all old documents. I still had Martin’s papers from 2004, when he was first admitted to Evergreen. In his paperwork I found the admission agreement he’d signed, witnessed by Rabbi Shalom Sperlin, then an officiating rabbi at Evergreen.

The paperwork confirmed that Martin had been interested in Jewish services and paid a separate $75 fee for a chazan for the Yomim Noroim and a later meal, as well as two seder services on the nights of Pesach. The aides recalled that he’d taken part in the menorah lighting ceremonies on Chanukah, shook the four species on Sukkos, and was involved in every aspect of Jewish tradition at Evergreen.

Based on this information, we sent a complaint to the court on Friday, erev Shabbos Shuvah, asking for a stay on the cremation.

We were told that the judge was waiting for us in Rockland County Supreme Court. The lawyer and I were ushered upstairs to see the judge, but then learned that we first needed to file a formal complaint.

We raced downstairs, paid the $300 fee, filed a formal complaint and filled out some forms. Then we hurried back upstairs to see the judge, who was waiting for us in his chambers. To our dismay, we were stopped by a court officer. It was after 5:00 p.m. and the court was closed for the day. They refused to allow us to see the judge after hours. We were both escorted out of the courthouse and told to come back on Monday.

This was a setback. Without a chance to talk to the judge to explain what our appeal was about, we had no chance of winning a stay. An hour later, at 6:00 p.m., we heard the claim was denied and the body would be cremated on Monday morning.

This must have been a tremendous disappointment. What motivated you to continue?

I wasn’t going to allow a momentary setback to keep us from our goal. This wasn’t personal or about our own agenda. This was our final favor to the neshomah of Mordechai ben Reuven.

After an anxious Shabbos, we quickly got to work on motzoei Shabbos and Sunday, trying to find a New York State Appellate judge to overrule the decision of the local judge. We were assisted in this matter by Rabbi Chaim Dovid Zwiebel of Agudath Israel, who is a prominent lay leader and expert in these matters.

We hired attorney Attorney Beth Finkelstein to represent us from this point onward. During the legal process, we would be dealing with four different lawyers, Mark Kurzman, Beth Finkelstein, Dennis Lynch, and Victoria Graffeo, each of whom excelled in their unique area of expertise. Rabbi Professor Aaron Twersky and the Honorary Judge Schmidt of Brooklyn were also invaluable sources of information and advice.

By Monday morning, we had an override from an Appellate Judge, and the papers were served to Hellman Memorial Chapel in the morning, preventing them from taking the body to New Jersey, where it would be cremated.

Still, we refused to back down. We sent an askan to discuss the matter with Rav Chaim Kanievsky, who ruled that the niftar had the status of a meis mitzvah, and that we should do everything in our power to prevent his desecration. Rav Yisroel Dovid Shlesinger, a prominent rov in Monsey, also urged us not to back down despite the obstacles.

Did more askonim join the case at this point?

Yes. In addition to the support and services of Agudath Israel, we had a team from Chesed Shel Emes, led by Rabbi Mendy Rosenberg and Rabbi Isaac Lieder, and chevra kadisha of Monsey, led by Rabbi Ephraim Pessin. Friends and supporters started a GoFundMe page to raise funds to help with our legal efforts.

In the meantime, Judge Victor Alfredi, the Rockland County Judge who had denied our stay, was very upset that we’d found another judge to overrule him, and wanted an explanation. We met with the judge, who is a religious Christian, and told him the whole story, trying to make him understand why were so adamant to prevent this.

We were busy with the paperwork and legal wrangling through erev Yom Kippur, only getting home a few minutes before the zman. The situation, taking place during such an intense time, was emotionally draining, sapping every bit of strength I had. Still, the thought of giving up repelled me. How could I allow Martin’s body to be burned and pulverized? He would never have agreed to such treatment had he been asked.

The law clearly states that the next of kin must accommodate the wishes of the deceased. This, in essence, was the driving force behind our arguments. We were trying to prove that Martin was interested in religion and that he would have wanted a Jewish burial, even though he never explicitly mentioned it in writing. And herein lies the tragedy. Had he written it, even once, this entire sad situation would never have occurred. Instead, he filled out a routine form asking about burial arrangements, and someone scribbled “family taking care.”

How did Steven respond to your continued efforts?

He was furious. He immediately booked two tickets and came with his wife to New York to continue the fight in person. He hired Richard Holwell, a former Federal Judge who had been nominated to the court by President Bush. At this point things were not looking very good for us, especially since the courts were heavily inclined to favor the family members.

It is really difficult to understand what motivated him. He claimed that he wanted his brother next to him, but we were willing to pay for burial in any cemetery close to his home! During our discussion in court, Steven admitted under oath that his parents had been given traditional Jewish burials after their deaths, and that his brother Martin had fought with him about this. Steven wanted cremation and Martin was determined to have them buried kehalachah. Why shouldn’t his own remains merit the same treatment, we argued.

Although Steven said this to the judge and did not dispute our clear evidence that Martin was interested in religious rituals, he still claimed that as the next of kin, he gets to decide what happens. Although we repeatedly offered to pay for all the costs and to make a ten thousand dollar donation to the charity of his choice, Steven rebuffed our offers.

The case was postponed until after Sukkos. On October 8, we had a full day of testimony, where we were grilled in court by Steven’s lawyers.

Rabbi Benjamin Kelsen, a prominent rabbi and attorney from Teaneck who lectures extensively about halachah vs. American law, was hired to be a professional witness on religious matters. He explained to the court how spiritually damaging cremation is to the soul of the departed.

How did the judge react to the new evidence?

Judge Victor Alfredi was very sympathetic and asked Rabbi Kelsen if he felt that Martin would have wanted to be cremated. “One hundred percent not!” Rabbi Kelsen declared.

Judge Alfredi, a Bible scholar, asked a lot of questions about Jewish law and religion. He asked if every Jew knows about life after death, and if these things are openly discussed in Judaism. Rabbi Kelsen explained that it is discussed at length in our prayers and is an integral part of our faith.

He then turned to Steven and said, “Mr. Mendelsohn, you see that the Jewish community has come out to challenge you because they care about your brother. You heard in the testimony that he lived a traditional Jewish life. Why do you want to have him cremated? Don’t cut off your nose to spite your face. Maybe there is a G-d in this world. Would you want to destroy your brother’s chances in the World to Come?”

Still, Steven remained obstinate and refused to capitulate. Since New York State heavily favors next of kin, and a legal “friend” has never yet challenged next of kin in burial matters and won, it appeared that we were fighting a losing battle.

On the night before the judge’s final decision, I went to the Ribnitzer Rebbe’s kever with the legal papers and said to the tzaddik, “We did everything we could. Now it’s up to you to intercede with the Heavenly Courts.”

At this point we hired our fourth lawyer, former New York State Appellate Judge Victoria A. Graffeo of Harris Beach Attorneys at Law. Ms. Graffeo, who dealt with the Kiryas Yoel Public School lawsuit, has many years of experience in matters of Jewish law and her opinion is very influential.

What happened next?

It was midnight on the night of November 10, and I was about to go to sleep, when I told my wife that it seemed like we were losing. What did us in, I told her, was the document that said, “burial arrangements: family will take care.”

“Wait a minute!” my wife said. “Doesn’t burial arrangements mean that the deceased must be buried?” We looked it up in the dictionary, and indeed, the definition of burial is “internment in the ground.”

Though it was late at night, I woke up Rabbi Zwiebel, who is a real tzaddik and was available day and night to help us. Rabbi Zwiebel agreed that the word “burial” seems to imply that the deceased should be buried. Next, we woke up our lawyer and she agreed to draft a last minute extension. It was delivered the next morning to the chapel, and not a moment too soon. The body was already out of the refrigerator, being prepared to be placed on the hearse and taken to be cremated!

At this point, the legal wrangling had taken over two months, but it appeared that our mazel was still holding. Until the last minute, we hoped and davened that the judge would issue a stay and allow the arguments to proceed.

Sadly, it was not meant to be. On the morning of Tuesday, November 24, we lost our final appeal and the order was given for the deceased to be cremated. Though we doubled our charitable offer in a letter to Steven, offering a $20,000 donation to the charity of his choice, he was not interested. The niftar’s body was tragically cremated, yet his neshomah still lives on in the heavenly spheres.

It is still difficult for me to talk about this. We invested so much time, effort, money and emotion into trying to preserve the dignity of the niftar. Yet we hope that this story will serve as a cautionary tale. It is vital to clearly specify funeral arrangements for the elderly and those in care facilities. After their passing it may be too late.

One final message: Even if it seems like one is fighting a losing battle, one should never give up. Although it wasn’t bashert for this battle to be won, the fact that so many of our brothers joined in achdus and harmony to preserve the kedushah of the departed was a tremendous zechus. This was truly Klal Yisroel’s battle.

We would like to thank those who davened for the niftar, helped financially with the legal battle, and learned in the memory of the neshomah of Mordechai ben Reuven, may it have an aliyah.