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Although Superior Court Judge Robert Contillo upheld the firing of Paul Desbiens from Maple Grove Cemetery in Hackensack, he didn’t support the reasoning.
Now, Contillo says, the cemetery may end up in bankruptcy.
The judge largely rejected arguments by the board and President Barbara Kirby that Desbiens stole large amounts of money from the cemetery, paid personal expenses for himself, his daughter and his pet dog, and applied an over-generous compensation formula.
“None of the proffered justifications … provide any basis for termination or rescission, or for any claim for damages for tortious conduct or breach of contract,” Contillo wrote in his Dec. 30 decision.
The judge cited the potential consequences of his ruling for the graveyard’s future and Desbiens’ ability to collect the award:
“The downside of a substantial monetary award against the [d]efendant Maple Grove is two-fold: This venerable institution which has served the public for over one hundred and fifty years will likely be forced into bankruptcy.
“Rendering this not-for-profit corporation insolvent has ramifications for the entity and the cemetery itself, and for the families whose loved ones are there. It also affects Desbiens Group owing to the potential impact on the collectability of any such judgment.”
Desbiens, who with his wife owns Mount Rest Cemetery in Butler and previously owned Laurel Grove Cemetery in Totowa, asked the judge to reinstate him at Maple Grove.
Contillo refused.
“Courts are strongly disinclined either to force the service contractor to perform (involuntary servitude being unlawful) or to force the entity that does not want the service contractor to nevertheless accept the service,” the judge found.
“Particularly when we are talking about a management contract with over a decade remaining to its term, and where the atmosphere between the principals is poisonous, the concept of forcing Maple Grove to accept the reinstallation of Desbiens Group as its manager, which it vigorously opposes, is an unattractive option. The court can foresee perpetual rounds of litigation,” he wrote.
Contillo awarded Desbiens the $1,234,064 instead — representing profits he would have earned to date and in the future under a 20-year contract that began in 2005.
He also rejected the board’s claims that Desbiens:
· forged the signature of Barbara Kirby on ninety-seven checks totaling $271,000;
· used $125,000 of Maple Grove funds to pay entities like “Merendino Cemetery Care” to whom Maple Grove was not indebted;
· concealed the books and records of Maple Grove from the Board of Trustees and failed to provide the board proper accounting.
However, Contillo emphasized that there was a “paucity of actual evidence in support of [the Board’s] allegations of financial impropriety against Desbiens Group.”
One of the key points of contention was a provision of Desbiens’ contract that stipulated how sales and revenues would be split.
Desbiens provided a signed copy of a pact granting him 80%.
Kirby and the board, in turn, gave Contillo a contract that stipulated a 50-50 split with the cemetery.
They also produced an expert witness who testified that the contract Desbiens gave the judge was altered. Kirby testified that she believed he deliberately substituted pages, giving himself the more generous compensation, and made copies of it at home.
The judge dimissed the argument, saying it made no sense given there was a copier right there in the cemetery office. Desbiens had been paid 80% from the beginning of the contract in 2005 and everyone was aware of it, Contillo found.
As for the 97 checks signed with Kirby’s name, the judge deemed them a convenience in managing the cemetery’s affairs and not forgeries. As in the case of the contract split, everyone knew it was being done, Contillo said.
“The signatures are readily seen in their odd disparity from her known signature, a fact blatantly obvious to the court, and to Barbara Kirby, to whom they were always readily available, and to her loyal bookkeeper and her longtime and loyal accountant.
“There was nothing hidden about these checks. To the contrary, they were readily available and contemporaneously inspected by the cemetery’s own bookkeeper and accountant, who saw nothing wrong. To seize on them now as a grounds for termination is mere pre-text and entirely unjustified.”
In addition to the financial award to Desbiens, the judge dismissed interference claims against Kirby. He also found no liability by any of the trustees and dismissed their counterclaims against Desbiens.
Desbiens filed the suit shortly after he was terminated in October 2012.
STORY / PHOTO: Mary K. Miraglia, CLIFFVIEW PILOT Courthouse Reporter
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