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 5, 2019
