Matter of Rosenthal

[*1] Matter of Rosenthal 2009 NY Slip Op 52802(U) Decided on February 18, 2009 Sur Ct, New York County Webber, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 18, 2009
Sur Ct, New York County

In the Matter of Alvin Rosenthal, David Panzirer, Walter Panzirer, Sandor Frankel and John Codey, as Trustees of the Leona M. and Harry B. Helmsley Charitable Trust Created by Leona M. Helmsley, deceased,



2968/2007

 

Attorneys for petitioners Alvin Rosenthal,David Panzirer and Walter Panzirer

Helen Gavaris, Esq.

Loeb & Loeb LLP

345 Park Avenue

New York, New York 10154

(212) 407-4000

Attorney for petitioner Sandor Frankel

Kim Baptiste, Esq.

Schulte Roth & Zabel LLP

919 Third Avenue

New York, New York 10022

(212) 756-2000

Attorney for petitioner John Codey

Jonathan Koslow, Esq.

Skadden, Arps, Slate, Meagher & Flom LLP

4 Times Square

New York, New York 10036

(212) 735-3000

Carl Distefano, Esq.

Office of the Attorney General of the

State of New York

120 Broadway, 3rd Floor

New York, New York 10271 (212) 416-6349

Troy K. Webber, J.

This is a proceeding by the trustees of The Leona M. and Harry B. Helmsley Charitable Trust established by Leona M. Helmsley on April 23, 1999, as amended and restated thereafter, asking the court to determine the scope of their discretion to apply trust funds for charitable purposes.

Settlor died on August 20, 2007. Her will was admitted to probate in this Court and petitioners were appointed executors. The trust at issue here is the sole residuary beneficiary under the will.

Among the several documents that settlor executed in connection with the trust was a 2004 Mission Statement, dated March 1, 2004, which revokes all prior Mission Statements and provides that the trustees are to make grants for "(1) purposes related to the provision of care for dogs; and (2) such other charitable activities as the Trustees shall determine." Petitioners contend that such document is an "amendment" to the trust agreement that was subsequently revoked by settlor's July 15, 2005 execution of the Amendment to the Leona M. and Harry B. Helmsley Charitable Trust Agreement dated April 23, 1999 as Amended and Restated May 11, 2004. Such instrument specifically revokes all prior "amendments" to the trust except for the May 11, 2004 amendment and restatement of the trust instrument.

As the Attorney General of the State of New York on behalf of the ultimate charitable beneficiaries correctly notes, however, whether or not the 2004 Mission Statement is operative is ultimately of no consequence because Paragraph B of Article Fourth of the May 11, 2004 amended and restated trust instrument makes clear that the trustees' discretion to apply trust funds for charitable purposes is not limited by any Mission Statement settlor may have executed. Such provision provides that the trustees "may establish and administer programs for the charitable purposes authorized by Paragraph (A) of this Article [which would include charitable purposes identified in a Mission Statement] or they may, in their sole discretion, distribute the net income and principal of the Trust Fund to and among such one or more Charitable Organizations and in such amounts or proportions as the Trustees, in their sole discretion, shall determine."

Based on the foregoing, the court finds that the trustees may apply trust funds for such charitable purposes and in such amounts

as they may, in their sole discretion, determine.

This decision constitutes the order of the court.

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S U R R O G A T E

Dated: February 18, 2009