Surrogate Anderson Matter of FREDERIC J. FULLER, Jr., (01-3283/A) Grantor — This is an uncontested application for cy pres relief commenced by The Catholic Communal Fund of the Archdiocese of New York, Inc. (“CCF”) as the current trustee of a charitable remainder trust established by Frederick J. Fuller as grantor. For the reasons stated below, the petition is granted. Grantor created the trust in 1990 for the lifetime benefit of himself and his sister. At the death of the survivor of them, the trust remainder was distributable to CCF to hold for the perpetual benefit of six named charities (the “Fuller Trust”). Under the terms of the trust instrument, five per cent of the net income of the Fuller Trust was distributable annually to Sisters of Charity of St. Vincent de Paul of New York (“Congregation”) in memory of Mother Mary Fuller (Grantor’s aunt) “to be used for the Convent of Mary the Queen.” The Convent, located in Yonkers, New York, was a residence and an infirmary to serve aging and infirm members of the Congregation. However, the Convent closed in 2015 due, in part, to the prohibitive costs of renovating and maintaining the building. The Congregation continues to care for its members by providing funds for housing and medical services in various facilities located in the community. Petitioner seeks leave to distribute the Congregation’s share of the Fuller Trust to the “Sisters of Charity of St. Vincent de Paul of New York in memory of Mother Mary Fuller for the care of aging and infirm Sisters of Charity.” The equitable doctrine of cy pres, codified in EPTL 8-1.1(c) (1), authorizes the court, upon application of a fiduciary, to modify a charitable disposition “whenever circumstances have so changed since the execution of an instrument… as to render impracticable or impossible a literal compliance with the terms of such disposition.” If, as here, such a change has occurred, the court must determine whether the grantor’s charitable purpose is broad enough to preclude a lapse of the disposition and to ensure that the requested relief under modified terms serves the grantor’s original charitable intent as nearly as possible (Matter of Hummel, 9 Misc3d 996 [Sup Ct, Albany County 2005], affirmed, 30 AD3d 802 [3rd Dept 2006]; Matter of Mirjanian, NYLJ, June 14, 2005, at 23, col.6 [Sur Ct, NY County] ) . The record makes clear that grantor, who was directly involved in the planning and financing of the Convent, knew that it was built to care for the Congregation’s most vulnerable members. Accordingly, there can be no question that the proposed exercise of the court’s cy pres power would satisfy grantor’s ultimate intent, i.e., to support the Congregation’s ability to meet the needs of its aged and infirm members. Accordingly, the relief sought in the petition is granted. Decree signed. Dated: December , 2019
Surrogate Mella Will of ANTHONY J. WALTON, (19-683/D) Deceased — At the call of the calendar on October 18, 2019, the court ordered a continuance, pursuant to CPLR 3212(f), of a partial summary judgment motion by the preliminary executor of the estate of decedent Anthony Walton. The motion was made in an SCP A 2103 proceeding commenced by the preliminary executor and sought an order directing respondent Jennifer Gao, decedent’s surviving spouse, to vacate a Manhattan townhouse and dismissing a counterclaim for undue influence interposed by Gao. Decedent died on January 18, 2019, at age 76, survived by Gao and two adult sons from a prior relationship. At issue in the SCP A 2103 proceeding is whether an “operative event” occurred under the September 11, 2008 prenuptial agreement that Gao executed with decedent, prior to their marriage on December 23,2008. Upon the occurrence of an operative event, Gao’s rights to participate in and receive assets from decedent’s estate are foreclosed and she loses a lifetime interest, via a trust, in their marital residence, the townhouse which Gao continues to occupy and from which decedent’s preliminary executor seeks her removal. Two occurrences are stated by petitioner to have been “operative events.” One is decedent’s sending of an acknowledged letter dated December 18, 2017, expressing his intention to live separate and apart from Gao. The other is the commencement of an action for divorce on or about October 5, 2018, in Supreme Court, New York County. Gao’s counterclaim in the turnover proceeding asserts that these alleged “operative events” under the prenuptial agreement were the product not of decedent’s wishes but instead of the undue influence of decedent’s sons. Prior to any discovery and shortly after issue was joined, the preliminary executor filed the instant motion for summary dismissal of this counterclaim and the ouster of Gao from the townhouse. This motion is premature, as Gao, in opposition, provided a basis for going forward with discovery (see Aurora Loan Services, LLC v. LaMattina & Assoc., Inc., 59 AD3d 578 [2d Dept 2009]). On the record, on October 18, 2019, the court adjourned the partial summary judgment motion to the court’s April 7, 2020 calendar, called at 10 a.m. (CPLR 3212[f]). All discovery regarding the questions of whether the December 18, 2017 letter or the October 2018 ·. commencement ofthe divorce action was the product of undue influence shall be demanded and noticed promptly, but in any event made no later than December 6, 2019. Examinations should be scheduled as soon as possible. All discovery shall conclude no later than February 26, 2020. Further submissions in support of summary judgment shall be filed and served no later than March 11, 2020; further submissions in opposition shall be filed and served no later than March 25, 2020; and further submissions in reply shall be filed and served no later than April 1, 2020. Deadlines set forth in this decision may be extended on the stipulation of all parties, filed, prior to the expiration of a deadline, provided that such stipulation shall require the last reply submissions to be filed no later than five business days prior to any date the adjourned motion is returnable before the court, or by further order of the court. Also before the court on October 18, 2019, was the motion of the preliminary executor to vacate the discovery demands of Gao in the separate proceeding to probate an August 27, 2018, instrument as decedent’s will. This motion essentially sought an order striking Gao’s appearance in the probate matter due to her lack of standing based on the occurrence of an “operative event” under the prenuptial agreement. Because that issue will be determined in the turnover proceeding, the court held the probate proceeding in abeyance pending the resolution of the question of the occurrence of an “operative event” under the prenuptial agreement or further order of the court. This decision, together with the transcript of the October 18, 2019 proceedings, constitutes the order of the court. Dated: December 4, 2019
