Manalapan funeral home that buried Lakewood woman in wrong cemetery fights lawsuit

FREEHOLD - As about 60 of Janet Kay's loved ones gathered at Mount Sinai Cemetery in Marlboro for the 82-year-old Lakewood woman's burial in October 2020, it became apparent something was terribly wrong.

First, there was a prolonged delay.

Then, the funeral director started asking the 85-year-old widower questions that indicated the body of his late wife had been lost.

It turned out the woman about to be buried in Kay's grave was not Kay, but was wearing Kay's clothing, jewelry and wedding ring.

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Upon that revelation, some of Kay's relatives screamed, one nonagenarian almost fainted, and the service was held without the decedent's body.

Meannwhile, Kay had been buried two days earlier in the wrong cemetery, wearing another woman's clothes, jewelry and wedding ring, next to a man she did not know.

Now, the funeral home that botched the arrangements, Manalapan-based Bloomfield-Cooper Jewish Chapels, is seeking to dismiss a lawsuit filed by the deceased's widower.

State Superior Court Judge Mara Zazzali-Hogan, sitting in Superior Court in Freehold, last year refused to throw out the suit.

But a panel of appellate judges on Tuesday reversed Zazzali-Hogan's decision and sent the case back to the lower-court judge to examine the circumstances under which the plaintiff, Leroy Kay, signed a document agreeing to forgo a lawsuit and instead settle any claims against the funeral director through arbitration.

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The mortuary service claims Leroy Kay signed a contract for the funeral services on Oct. 4, 2020, a day after his wife's death and two days before the mixup became apparent. The contract contained a provision that any dispute would be settled through arbitration.

Kay, meanwhile, has asserted he didn't sign anything until Oct. 8, 2020, after his wife's partially decomposed body was exhumed from the wrong grave in North Jersey and re-interred in Mount Sinai Cemetery in Marlboro. He said he entered into a verbal agreement for the services with the funeral director on Oct. 4, 2020.

Kay certified that on Oct. 8, 2020, he signed what he believed to be an "invoice" presented to him by one of the funeral directors who "claimed that it needed to be signed so that the funeral home could 'pick up the bill,'" court papers said.

"Plaintiff asserted he signed the contract 'on a podium … placed in front of (him) in the mausoleum' following his wife's funeral service 'after having seen (his) wife's partially decomposed body,'" the court papers said.

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Zazzali-Hogan held a hearing in March on the validity of the arbitration agreement.

Lawyers for the defendants argued then that the arbitration agreement should be enforced and the lawsuit thrown out.

Lawyers for the plaintiff argued the arbitration provision in the contract was unenforceable because it was presented to him simply as an invoice acknowledging receipt of funeral services.

Zazzali-Hogan found the agreement unenforceable on the basis of "unconscionability." She said the plaintiff's age, what could be construed as a sophisticated business term, the bargaining tactics and the setting in which the agreement was signed were all factors in her decision.

"Last but not least, it would not be in the public interest to enforce an arbitration clause under these circumstances," Zazzali-Hogan wrote.

The appellate judges, however, said further fact-finding into the circumstances under which Kay signed the agreement is needed.

"In reaching our conclusion, we recognize that generally, defendants do not dispute the circumstances leading to the agreement's execution, including the fact that the agreement was presented as an invoice for services already performed as well as the horrendous series of events leading to Janet's final funeral service at Mount Sinai Cemetery," Judges Greta Gooden Brown and Arnold L. Natali Jr. wrote in their decision.

Kay's lawsuit seeks unspecified damages. It alleges loss of the right to have the decedent laid to rest with dignity, breach of contract, violation of the Consumer Fraud Act, negligence, and negligent and intentional infliction of emotional stress.

Kathleen Hopkins, a reporter in New Jersey since 1985, covers crime, court cases, legal issues and just about every major murder trial to hit Monmouth and Ocean counties. Contact her at khopkins@app.com.

This article originally appeared on Asbury Park Press: Manalapan undertaker fights lawsuit over losing Lakewood woman's body