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A funeral service contractor had a terrible mishap and swapped two deceased people, causing a Jewish woman to be buried in the wrong cemetery.

But that's not the only mishap that occurred.

A ruling just released from the New Jersey Appellate Division highlights the importance of reading before signing - even when you're signing papers at a funeral.

Janet Kay died in her sleep at their home on October 3, 2020. Leroy Kay, her 85 year old husband, arranged with SCI New Jersey Funeral Services, LLC, d/b/a Bloomfield-Cooper Jewish Chapels to provide a Jewish burial at Mount Sinai Cemetery in Morganville.

The first disastrous mishap occurred when the staff of the funeral service mishandled two dead bodies and Janet was buried in the wrong cemetery next to a deceased man she did not know.

The following day, Janet's body was exhumed and disinterred from incorrect burial site.

While many extended family and friends gathered in for the original funeral, which was cancelled while the staff figured out where the missing body went, the ultimate funeral ended up being done as a much smaller event with just the immediate family.

The next part of the fiasco occurred after the funeral. The funeral service managers gave Leroy a contract without giving him much explanation or the opportunity to review the document. Instead, they told him that by him signing the documents "they [would] handle everything."

Unknown to Leroy, these papers were an arbitration provision that expressly waived his right to adjudicate any claims in a court of law.

Nearly two years later, Leroy filed a lawsuit in New Jersey Superior Court in Monmouth County against the funeral service and its managers.

The complaint asserted that he and his wife, were "of the Jewish faith" and wished to be buried in accordance with its tenets. As a result, he contacted this funeral service because they held themselves out as "specializing in Jewish mortuary services."

In the complaint, plaintiff asserted the following causes of action: (1) loss of right to interment; (2) breach of contract; (3) violation of the New Jersey Consumer Fraud Act; (4) negligent infliction of emotional distress; (5) intentional infliction of emotional distress; and (6) negligence. Attached to the complaint was a copy of the contract, showing an unpaid balance of $13,241.12.

The funeral service filed a motion to dismiss the complaint and compel arbitration on the basis that Leroy had signed the arbitration provision.

Leroy, who was shocked to learn what he was duped into signing, opposed the motion, asserting 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." Leroy certified he "was instructed to . . . sign what [he] believed to be an invoice presented by Anthony Gerahty," one of the funeral directors. According to Leroy, Gerahty "claimed that it needed to be signed so that the funeral home could 'pick up the bill.'" Leroy stated "[a]t no point [has he] ever been asked to . . . nor . . . paid . . . for the services and arrangements for [his] wife's funeral" and "at no time prior to the funeral, did [he] ever discuss an arbitration agreement with . . . the funeral service."

The Superior Court judge weighed the matter very heavily, noting that there was a signed arbitration agreement that could legally be enforced.

Nevertheless, based on the totality of the circumstances, the judge tossed the arbitration agreement.

Relying on Moore v. Woman to Woman Obstetrics & Gynecology, which stated that "courts may decline to enforce when well-established principles addressing the absence of a consensual agreement and unfairness in contracting and the agreement warrant relief," the judge declined to enforce the agreement to arbitrate on the ground of "unconscionability."

The judge explained: 

[I]t's presently disputed as to when plaintiff signed the subject contract, and the circumstances surrounding the signature. The [c]ourt finds that his age, regarding what could be a sophisticated business term, that the bargaining tactics, and more importantly, the particular setting, all weigh in favor of a finding of procedural unconscionability under Muhammad v. County Bank of Rehoboth Beach.

The fact that he was told it was just an invoice he needed to sign off on also weighs against finding otherwise.

The judge noted further, if the paper contract was not presented to plaintiff until after the funeral, plaintiff would have been in a position where he essentially had to accept the terms of [the] contract, which would indicate lack of . . . consent, especially in reviewing how the services were rendered, which would make it more of an adhesion contract. 

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

The funeral service appealed this decision.

In a written ruling just released, Appellate Division Judges Gooden Brown and Natali agreed and partially reversed the lower court's ruling.

We acknowledge that the written contract included an integration clause stating it "replaced all other discussions and agreements, whether oral or written, relating to the goods and services." We also note, however, that the written agreement was a contract of adhesion, presented to plaintiff for signature on a take-it-or-leave-it basis, after the funeral services had already been rendered and leaving nothing for plaintiff to negotiate.

Defendants claim that without limited discovery, invalidating the arbitration provision on unconscionability grounds was not supported by adequate, substantial, and credible evidence. We agree that the facts in the record are insufficient to permit a full and proper consideration of the Rudbart factors and a remand is appropriate to permit further discovery and factual findings on those factors. 

Specifically, after reviewing plaintiff's certification, questions remain regarding his level of sophistication, his capacity to review and understand the agreement, and whether he was unduly influenced by other factors. 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. Nevertheless, we remain convinced that discovery limited to the issues of arbitrability and unconscionability is necessary and appropriate as critical unresolved facts relevant to unconscionability are within plaintiff's knowledge and control.

The appellate judges remanded the matter back to the Superior Court for limited discovery in accordance with their ruling. This means that the parties will go through yet another round of litigation in Superior Court to review the arbitrability of the matter.

Arbitration provisions are very prevalent in the frum community.

Prior to entering into a business deal, a rental lease, or a divorce proceeding, many members of our community enter into agreements which set forth the terms of their transactions and contain arbitration clauses that in case of a dispute, in lieu of going to court, the parties will adjudicate their claims in Bais Din.

This ruling highlights the importance for parties to commercial contracts to closely review precise terms of arbitration clauses with experienced Toanim and Lawyers to ensure; a) that there are no confusions as to what is being agreed to; and b) that the agreement will be enforceable in court if necessary.

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