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Michael Tomaszewski

July 30, 2020 - 9:45am
posted by Howard B. Owens in Michael Tomaszewski, crime, news, batavia, notify.

Families who may have been defrauded by Michael S. Tomaszewski when they purchased prepaid funeral arrangements may want to consult with an attorney who is an expert in bankruptcy if they wish to recover any lost funds, according to a law school professor from the University at Buffalo.

S. Todd Brown is the vice dean for Academic Affairs for the UB School of Law and teaches bankruptcy law at the school.

"They would need to talk with someone to make sure their interests can be protected in the bankruptcy," Brown said. "I suspect there are lawyers who have been going around talking to different people, some people have probably already reached out to an attorney. This is an incredibly complex area of law."

Tomaszewski, both personally, and his company Acme Holdings of N.Y. filed for bankruptcy in Federal Court Feb. 5. Combined, Tomaszewski lists $1,094,346 in assets against $3,242,390 in liabilities. 

That doesn't include any restitution he may be ordered to pay if convicted of the nearly 200 criminal charges he faces locally.

The 48-year-old funeral director is charged with 91 counts of failure to deposit monies paid in advance in connection with agreements for funeral merchandise or services. He also charged with 61 counts of third-degree grand larceny, 29 counts of fourth-degree grand larceny, 4th, and three counts of petit larceny.

According to the Sheriff's Office arrest report from July 23, Tomaszewski received deposits form customers ranging from $350 to $15,500. His customers allegedly suffered a combined loss of more than $525,000.

That is a sum of money that people might expect a criminal court judge be repaid to victims once the defendant is convicted but it doesn't necessarily work that way, Brown said, when the criminal defendant has also filed for bankruptcy.

In general, bankruptcy allows an individual to discharge debts and get a fresh start. For businesses, Chapter 11 is a chance to reorganize debts. The judge may help the creditors and debtors work out a repayment plan that lowers the debt burden or if assets are liquidated, the bankruptcy judge will issue an order on how cash obtained during the liquidation is divided among creditors.

Creditors who provided secured loans -- meaning collateral for the money borrowed -- are top priority for repayment. If there is any money left over after secured loans have been paid off, the administrative creditors -- people handing the bankruptcy proceedings, such as attorneys -- are paid. Last in line are unsecured creditors. That is people or entities that are owed money but did not secure the debt with collateral.

The exception to this pecking order, Brown said, is when fraud can be proven.

A common example is if a person or business borrowed money under false pretenses, such as claiming assets that didn't exist or using the money for purposes other than promised.

For a funeral director, Brown used the example of borrowing money on the promise to build a new cemetery but then spending the cash on a new Ferrari or a monthlong trip to Las Vegas.

A funeral home director who accepts prepaid deposits for funeral arrangements could be considered a fiduciary (a person legally responsible for ensuring the money is handled only in the way specified by the contract and in the best interest of the person who owns the money). In order to determine whether Tomaszewski had a fiduciary responsibility to his clients, a lawyer would need to review any specific agreement along with applicable state and federal law.

A fiduciary who converts money to some other users cannot discharge the resulting debt in bankruptcy.

Using pre-need funds for other expenses in violation of the pre-need contract may also be considered fraud and fraud can't be discharged.

In either case, a bankruptcy court judge would need to make the determination on the debtor's obligation based on the case presented by an attorney representing such victims.

"This is really important," Brown said. "If they think they've been defrauded by this individual, they need someone who knows how the process works guiding them through it."

He added, "I tell my students when they enter my Intro to Bankruptcy class, I tell them, most of what we cover is general bankruptcy law. Unless you're working under the guidance of a talented and experienced bankruptcy attorney for at least two or three years, you're to commit malpractice if you go out and practice on your own right away because this is a very technical and complicated area of law. The importance of that story is to stress how easy it is for trained attorneys to mess up if they aren't practicing bankruptcy law regularly."

Brown also noted that a person who filed for bankruptcy can't make any payments on debt without the judge's authorization, even to creditors not listed in the bankruptcy. That rule applies for all debts paid for 90 days prior to filing for bankruptcy and until the bankruptcy case is resolved. The bankruptcy trustee has the option to recover any unauthorized payments from the creditors who received them.

Asked if a County Court judge to order restitution paid first, Brown gave an emphatic, "no."

"In terms of who gets paid when that's entirely the role of the bankruptcy court," Brown said.

For anybody who allegedly lost money to Tomaszewski through means other than fraud -- consider the petit theft charges he's facing -- any potential restitution there will be considered unsecured debt, meaning those possible victims will be among the last to get repaid, Brown said.

"People who have been defrauded need to have someone who is expert in bankruptcy law who is keeping a close on out for their interest in this case," Brown said but also acknowledge that for many people in a case such as this, they haven't lost enough money to interest an attorney taking on their case.

Previously:

July 28, 2020 - 8:00am
posted by Howard B. Owens in crime, batavia, Michael Tomaszewski, news, video, notify.
Video Sponsor

To this day, Zachariah and Danielle Young, of Darien Center, really don't know what happened to the remains of their stillborn daughter, Evangeline Elsie.

evacremationrecord.png

A photo of the document       Michael Tomaszewski reportedly produced showing
Zach Young authorized the 
cremation of his daughter.
Legally, we are told, a verbal
authorization is not permitted.

They have a box of ashes but the don't feel assured that the box contains the ashes of the little girl they still call Eva.

"The paperwork had the date that literally was a scribble on it," Zach said. "We have absolutely no answers as to when she was actually cremated."

The Youngs said they didn't want Eva cremated, at least not at the time the baby may have been cremated. And, as they remember, when Michael Tomaszewski Funeral and Cremation Chapel received the remains of the baby from Rochester Regional Hospital, he said he wouldn't do it.

As Zach remembers it, Tomaszewski, or "Tom," as they knew him, said "something doesn't look right" and so he agreed to hold onto the remains while the Youngs researched the circumstances of their daughter's death. 

The baby was born at UMMC. She had seemed healthy

just days before when doctors detected a strong heartbeat.

On Feb. 22, when Zach and Danielle arrived at the hospital,

the couple was told Eva's heart had stopped beating.

After hours of labor, Danielle gave birth to a lifeless body.

"It was devastating," Zach said.

"A mother knows their baby already before they're born," Danielle said. "A mother already has that bond. It's like having somebody rip that away and be careless with her remains is just insane. I don't understand it."

Genesee County Coronor Karen Lang confirmed that Eva was born Feb. 22 at UMMC and her body was sent to Rochester Regional for an autopsy. Eva's little body was then sent by courier to Tomaszewski. Tomaszewski has acknowledged receiving the body.

But what happened next is muddled by the funeral director's contradictory stories to the Youngs and to Lang.

On Thursday, the Sheriff's Office announced the arrest of Tomaszewski on about 200 charges. Most of the charges are related to allegations that he misappropriated fund families had prepaid for funeral services. He is also accused of failing to fulfill contracts to purchase headstones and gravesites.

What he hasn't been charged with yet -- and it's unclear if there will be charges -- is how he handled the remains of some deceased people. Chief Deputy Joseph Graff, Sheriff's Office, has confirmed, the department is looking into multiple reports of Tomaszewski mishandling the remains of people who died. The two cases Graff has confirmed involved a veteran who should have been interred at the Bath National Cemetary -- for free -- and the remains of Evangeline Elsie Young.

Lang said she became involved in the Young case after talking with the parents last November. At that point, she learned the Youngs still did not have the remains of Eva nor Eva's autopsy report. 

Both Tomaszewski and Rochester Regional Health were offered an opportunity to comment on this story. Neither responded with a comment.

Tomaszewski has provided both the Youngs and Lang with multiple stories about what happened with Eva's remains. He told the Youngs in June that he hadn't delivered the remains to the crematorium and then a short time later said she had been cremated.  

In November, he told Coroner Jeff McIntyre, who was assisting Lang with the case while she was on vacation, that he cremated Eva when he first received the remains; however, Tomaszewski couldn't produce documentation. He later told Lang he cremated the baby in June.

Most people don't understand, Lang said, that most funeral homes don't have the facilities to store the remains of deceased people for long periods of time.

When Lang asked Tomaszewski, who also operates a catering facility, what he did with Eva's body from February until June, Lang said Tomaszewski told her that he kept the body in a cooler in his prep room.

Tomaszewski eventually produced documentation on the cremation of Eva but neither of the Youngs signed it -- which Lang said is required by law.  Instead, the document says the Youngs gave permission over the phone for the cremation. 

Based on their conversation with county officials -- which includes an interview the Sheriff's Office -- the Youngs suspect the box of ashes they received is too light to contain the remains of a once nine-pound baby. So they feel in limbo. Their church -- High Point in Pembroke -- held a service  for Eva but they didn't have her ashes then and they don't know if what they have now are really her ashes.

They would just like answers.

"I think to make it up, he would have to really admit to his wrongs and not just for me, but for a lot of people," Danielle said. "Losing somebody as it is, is something traumatic to have to deal with. And for us to trust you with our dead loved one..."

"It would be nice to at least know what happened because we got three different stories from him," Zach interjected.

"We don't really have answers," Danielle said. "To be honest -- to be honest with anybody -- would be good. The trauma of losing our daughter was bad enough and then to have to worry about her remains -- that wasn't professional."

Previously:

July 25, 2020 - 5:47pm
posted by Howard B. Owens in Michael Tomaszewski, crime, batavia, news, notify.
tomaszewskimugjuly2020.jpg
     Michael Tomaszewski

It isn't just headstones Michael Tomaszewski is suspected of not delivering to cemeteries but bodies, too, including the remains of a stillborn baby.

Chief Deputy Joseph Graff, Sheriff's Office, said that investigators are looking into multiple incidences of mishandling remains at Tomaszewski's facilities on West Main Street Road, Batavia.

Graff wouldn't elaborate other than to confirm the investigation into the remains of a baby and a veteran.

The investigation into remains being stored at the Michael S. Tomaszewski Funeral Home & Cremation Chapel, and possibly at Tomaszewski's adjoining properties, began in January 2019.

That's when Genesee County Coroner Jeff McIntyre received a call from the estranged stepdaughter of Peter Vandetta, a 20-year Army veteran, who died in April 2018.

Ronda Grabowski said she wasn't notified of Vandetta's death immediately, but became suspicious after reviewing his death certificate.

She contacted Coroner McIntyre and asked him to find out where her stepfather's body was buried.

McIntyre found the death certificate and discovered Vandetta's passing was one of his cases, so he tried contacting the Bath (NY) National Cemetary, where Vandetta was supposed to be interred, to find out if he was buried there. McIntyre said he made a few calls, each time being told there was no record of Peter Vandetta at the cemetery.

He followed up with Tomaszewski and McIntyre said the funeral director assured him he had taken Vandetta's remains to Bath and he could provide him with the grave coordinates.

After being told by officials at Bath once again that Vandetta was not lain to rest at the national cemetery, McIntyre asked Tomaszewski to provide him with the grave coordinates. But, when pressed, Tomaszewski couldn't do it, he said.

At that point, McIntyre turned the investigation over to the Genesee County Sheriff's Office.

A short time later, McIntyre received a call from an investigator and was told that the remains of an adult male at been located in the garage at the Tomaszewski funeral home.

McIntyre ordered the remains delivered to the Monroe County Medical Examiner's office for positive identification. That ME's office did confirm the remains were Vandetta's.

Grabowski told 13WHAM, The Batavian's news partner, that she confronted Tomaszewski about the situation. She said he told her the cousin who was supposed to handle arrangements never contacted him with instructions on how to proceed.

After the ID was confirmed, a cousin apparently authorized the return of the remains of Vandetta to Tomaszewski, who published Vandetta's obituary on Aug. 6, 2019, with services to be held at the funeral home on Aug. 11. Vandetta is now interred at Bath National Cemetary.

Asked for his thoughts on the case, McIntyre, himself a military veteran, said, "You know, I can’t even tell you what my thoughts are. I don’t even understand. I don't know. I hope the system works and we’re able to find out what happened and what went wrong."

Graff said there has been an active investigation into the Vandetta case since January 2019, and he also confirmed that the Sheriff's Office has been contacted about the possible inappropriate handling of other human remains. Graff declined to say how many complaints there might be but did confirm that one involves a stillborn baby.  

District Attorney Lawrence Friedman said he has been aware of the investigation but has not been handed a case yet by the Sheriff's Office so couldn't comment further on possible charges.

Chief deputy Graff also said he and other investigators were kept busy fielding calls from more possible victims of Tomaszewski.

On Thursday, the Sheriff's Office announced the arrest of the funeral director on about 200 charges involving the alleged misuse of prepaid funeral arrangement funds and Tomaszewski's possible failure to purchase headstones and gravesites as paid for and promised to clients.

It's alleged that in the initial set of charges, Tomaszewski may have misused about $525,000 in funeral funds he deposited.

Earlier this year, Tomaszewski and his company, Acme Holdings of N.Y. Inc., filed for Chapter 11 bankruptcy. He lists $1,094,346 in assets against $3,242,390 in liabilities.

If convicted, Tomaszewski will certainly be ordered to pay restitution to victims. Restitution cannot be discharged, like other debts, in bankruptcy court.

Previously: Local funeral director charged with stealing money from customers

July 23, 2020 - 6:12pm
posted by Howard B. Owens in Michael Tomaszewski, H.E. Turner, news, batavia.

Press release:

In recent days, Michael S. Tomaszewski Funeral and Cremation Chapel LLC in Batavia has been accused of pre-need theft. During this unfortunate time, we would like to first and foremost like to extend our sincerest condolences to all those affected.

As a family-owned business since 1900, we consider the opportunity to serve the communities of Genesee County an absolute privilege. Our staff works diligently to provide you and your loved ones with the utmost respect and care and are humbled when we are granted the honor of doing so.

With that said, if you or a loved one held pre-need funeral arrangements with Michael S. Tomaszewski Funeral and Cremation Chapel LLC we want to help! We will assist in possible recovery of funds and can help to determine if you and your family qualify for donation of service from our funeral homes.

As lifelong residents of Genesee County, our family of funeral homes will continue to provide the highest standards for our community and we are dedicated to restoring the dignity your family deserves.

Please don’t hesitate to call – (585) 344-4295. Our lines are open 24/7 and as your neighbors, we’re here to support you through this difficult time. lease, allow us to earn your trust.

Sincerely,
Justin D. Calarco-Smith, Joshua J. Smith, Steven L. Johnson, Randy W. McIntire, James F. Smith
The Bohm-Calarco-Smith, H.E. Turner & Co. Inc., and Burdett & Sanford Family

July 23, 2020 - 4:54pm
posted by Howard B. Owens in Michael Tomaszewski, batavia, news, notify.

Local funeral director Michael S. Tomaszewski, 48, is being charged with 91 counts of failure to deposit monies paid in advance in connection with agreements for funeral merchandise or services.

He has been arrested following an investigation by the Genesee County Sheriff's Office.

The Sheriff's Office opened an investigation into Tomaszewski after a client of the Office of the Aging received a complaint from a customer of the Michael S. Tomaszewski Funeral Home & Cremation Chapel. The client expressed concern regarding a deposit made for prepaid funeral arrangements. 

The investigation led authorities to conclude that Tomaszewski had received prepayments from 91 customers for which trust accounts were never opened.  

Reached this afternoon, Tomaszewski declined to comment.

When a funeral director receives prepayment for funeral services, the director is required under NYS law to place the money in a trust account within 10 days.  

Investigators believe no such accounts were ever opened. 

Additionally, Tomaszewski is accused of receiving payment for two headstones, and gravesites that were never purchased.

The deposits ranged from $350 to $15,500. It's alleged that Tomaszewski's customers sustained a total loss of approximately $525,000.

In February, Tomaszewski filed for bankruptcy under Chapter 11 in Federal Court.

Tomaszewski is charged with 61 counts of third-degree grand larceny, 29 counts of fourth-degree grand larceny 4th, and three counts of petit larceny.

He is also charged with five counts of falsifying business records in the first degree. He is accused of creating fake business documents reflecting nonexistent account information for trust accounts.

The longtime funeral director, who also owns the Dibble Family Center, is also accused of knowingly sending fake documentation to the Department of Social Services and is charged with offering a false instrument for filing in the first degree.

There are also two counts of scheme to defraud filed against Tomaszewski. He is accused of engaging in a scheme constituting a systematic course of conduct with intent to defraud at least 10 people by making false promises to obtain money. He is also accused of defrauding a vulnerable elderly person as defined by state law.

Today, Tomaszewski was arraigned in Genesee County Court by Judge Charles Zambito via Skype. He was released on his own recognizance and is scheduled to appear in Batavia Town Court at 10 a.m., Sept. 17.

The investigation is ongoing and further charges are expected, according to the Sheriff's Office. Anybody who wishes to check the status of any prepaid account can call (800) 577-3752 to verify the existence of a preplan account. Anybody who believes they are a victim is asked to call the Sheriff's Office at (585) 343-5000.

In his personal bankruptcy, Tomaszewski lists $409,896 in assets, including a home on Edgewood Drive valued at $396,549. He claims to owe $1,570,682 to 25 creditors, including more than $25,000 to the IRS along with back taxes owed to the State of New York.

Tomaszewski is the owner of Acme Holdings of NY Inc. Acme owns the building that houses his funeral home, and adjacent property, including the Dibble Center. Acme has also filed for bankruptcy. In the Acme bankruptcy filing, Tomaszewski lists $684,450 in assets and $1,671,708 in debts.

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