Matter of French-Am. Aid for File Children, Inc. (Klebe)

Matter of French-Am. Aid for File Children, Inc. (Klebe) 2017 NY Slip Op 05324 Decided on June 29, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 29, 2017
Sweeny, J.P., Renwick, Andrias, Kapnick, Kahn, JJ.
4394 2312/15

[*1]In re French-American Aid for Children, Inc., et al., Petitioners-Respondents,

and

Joerg Klebe, Objectant-Appellant, Eric T. Schneiderman, Attorney General, Respondent-Respondent.

John A. Barone, Bronx, for appellant.

Greenfield Stein & Senior, LLP, New York (Gary B. Freidman of counsel), for French-American Aid for Children, Inc., respondent.

Eric T. Schneiderman, Attorney General, New York (Seth M. Rokosky of counsel), for Attorney General, respondent.

Decree, Surrogate's Court, New York County (Rita Mella, S.), entered June 9, 2016, inter alia, adjudging that petitioner's revocation of a trust of which objectant is a trustee was valid, unanimously affirmed, without costs.

Objectant's contention that petitioner did not properly revoke the trust because it used Estates, Powers and Trusts Law (EPTL) § 7-1.9(a) instead of § 8-1.1.(c)(2) is unavailing. Before 1985, cases held that a charitable trust could use the predecessor of EPTL 7-1.9(a) (see e.g. Hanover Bank v United Brethren's Church on Staten Is., 134 NYS2d 356, 361-362 [Sup Ct, NY County 1954]). In 1985, EPTL 7-1.9 was amended to add subsection c, which provided that "[a] trust . . . wholly benefitting one or more charitable beneficiaries may be terminated as provided for by" EPTL 8-1.1(c)(2) (emphasis added). Nothing in either the text of EPTL 7-1.9(c) or the legislative history thereof indicates that charitable trusts were restricted to EPTL 8-1.1(c)(2) after 1985 (see generally Allstate Ins. Co. v Belt Parkway Imaging, P.C., 78 AD3d 592 [1st Dept 2010]). Moreover, post-amendment cases indicate that charitable trusts may still use EPTL 7-1.9(a) (see e.g. Board of Trustees of Museum of Am. Indian, Heye Found. v Board of Trustees of Huntington Free Lib. & Reading Room, 197 AD2d 64, 85-86 [1st Dept 1994], lv denied 86 NY2d 702 [1995]; Matter of Forester, NYLJ, Dec. 3, 2001, at 17, col 3 [Sur Ct, NY County 2001]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 29, 2017

CLERK