*1 In this uncontested proceeding, the executor, the attorney/ drafter of the decedent’s will dated October 4, 2001 which was admitted to probate by decree dated March 31, 2010, filed a petition seeking, pursuant to SCPA 1420(1) and the cy pres doctrine (EPTL 8-1.1 [c]), to construe and reform Article FOURTH of the will to substitute two Jewish charities, OHEL Children’s Home and Family Services (OHEL) and Merkos L’lnyonei Chinuch, Inc. (Merkos) in the place and stead of the Graenum Berger Bronx Jewish Federation Service Center (Graenum Berger), a 50 percent residuary beneficiary which allegedly is defunct. Consents were filed for OHEL, Merkos and Diskin Orphan Home of Israel which is the remaining 50 percent residuary beneficiary. The Attorney General, on behalf of charitable beneficiaries, has no objection to the relief sought provided that the funds are to be used for needy individuals, food assistance and programs for Holocaust survivors, which services were formerly provided by Graenum*2
Berger.The decedent died testate on March 8, 2009 at the age of 92. She never married or had children. A consent was filed in the probate proceeding for her only distributee, a niece, who is not a testamentary beneficiary.In support of the application, the petitioner asserts that Graenum Berger is not listed on the Internal Revenue Service website for tax exempt organizations, an investigator from his office visited its last known address and could not locate it, and he annexes an internet article from UJA Federation dated December 2, 2010 announcing its closure. An Assistant Attorney General put the petitioner in touch with the former coordinator of social services at Graenum and its former director who confirmed that Graenum was closed, could not be “revived” and respectively recommended OHEL and Merkos as alternate charities performing like services.Under the cy pres doctrine, the court has authority to interpret or reform testamentary provisions to effectuate the testator’s charitable intent whenever literal compliance with the terms of a charitable bequest is impracticable or impossible (see EPTL 8-1.1 [c] [1]; Matter of Mayer, NYLJ, Aug. 30, 2013 at 31 [Sur Ct, Bronx County 2013]; Matter of Law, NYLJ, Sept. 5, 1995 at 21, col 1 [Sur Ct, NY County 1995]). Specifically, cy pres can be used to name or ascertain a beneficiary (see Matter of Carner, 67 AD2d 333 [4th Dept 1979], affd 50 NY2d 941 [1980]; Matter of Hynard, NYLJ, Oct 1, 1998 at 29, col 2 [Sur Ct, Suffolk County 1998]). Three conditions must be
