DECISION and ORDER Incident to this uncontested accounting, Petitioner, the Public Administrator of the County of New York in her capacity as Administrator c.t.a. of the estate of Joan S. Klein, asks the court to exercise its cy pres power (see EPTL 8-1.1[c][1]) with regard to a disposition of one-sixth of the residuary estate to Schepens Retina Associates Foundation (the Foundation), a charity that was established to support and promote retinal research. Because the Foundation no longer exists, Petitioner requests that the bequest be paid instead to Massachusetts Eye & Ear Infirmary (MEEI) to be applied to the Schepens Retina Associates Fund, which supports retinal research at MEEI. The Attorney General for the State of New York does not object to the relief requested. Cy pres relief can be granted only if “(1) the gift is charitable in nature, (2) the donor has demonstrated a general rather than a specific charitable intent, and (3) the particular purpose which the gift was intended to serve has failed or has become impossible or impracticable to achieve due to [a] change of circumstances” (Matter of Yuckman, NYLJ, July 10, 2019, at 22 col 5 [Sur Ct, NY County]; see EPTL 8-1.1[c][1]; Matter of Othmer, 185 Misc 2d 122, 126 [Sur Ct, Kings County 2000]). In general, “[a]ny gift or bequest for the promotion or advancement of health or medicine has always been recognized as a charitable gift” and where a donor “shows an inclination to benefit a variety of charities, a court is likely to conclude that the donor had a general charitable intent” (Othmer, 185 Misc 2d at 126-127). Additionally, “the proposed modification must closely approximate the intent of the testator” (Matter of Reiss, NYLJ, Mar. 8, 2018, at 22, col 6 [Sur Ct, Bronx County]). All conditions are satisfied here. The bequest to the Foundation was charitable in nature. Decedent had a general charitable intent, as evidenced by the fact that in addition to the Foundation, five other charities supporting a variety of causes received bequests under the terms of decedent’s will. Moreover, there is no dispute that the Foundation is now dissolved, thereby rendering the bequest impossible (see Matter of Ehrenreich, NYLJ, Nov. 3, 2017, at 22, col 4 [Sur Ct, NY County] [cy pres relief granted redirecting disposition intended for dissolved charity]). Lastly, the proposed distribution to MEEI, to be applied to the Schepens Retina Associates Fund, closely approximates the intent of the testator because the funds will be used to support retinal research. Accordingly, Petitioner’s application for cy pres relief is granted. The account being otherwise proper, Petitioner shall supplement it by affidavit and, as so supplemented, the account is settled. Settle decree. Dated: December 3, 2024
