This matter is before the Court by way of two competing petitions. On August 31, 2006 Rochester General Hospital (hereinafter referred to as RGH) filed a petition seeking an order of this Court directing the bequest made under Article Sixth (D) of the Will of Jean Frankenstein to Rochester General Hospital to be used for research and treatment of respiratory illnesses. The Mary Parkes Asthma and Pulmonary Center (hereinafter referred to as the Parkes Center) filed a petition with the Court on September 1, 2006 seeking an Order directing that RGH (or its Foundation) pay over the funds of the bequest to the Rochester Area Community Foundation so that the monies may used by the Parkes Center for research and treatment of respiratory illnesses. Both parties have submitted various memorandums of law and affidavits in support of their respective positions, and the Court deems it appropriate to entertain both petitions as a single proceeding. The Office of the Attorney General also appears in this proceeding, however, it does not take a position regarding the issues raised herein. [*2][*3]

Jean Frankenstein died February 2, 2000 as a domiciliary of Rochester and her Will was admitted to probate by a decree of this Court dated May 18, 2000. The distribution of a portion of the residuary estate is directed by Article Sixth (D) of the Will, which states in part:

"D. Forty percent (40%) thereof to the Genesee Hospital of the City of Rochester, New York, to be held as part of the funds of the Department of Medicine to be used for research relating to and for the treatment of respiratory illnesses. It is my hope and wish that the income derived from this legacy, together with the principal itself (if deemed appropriate), shall be used and expended pursuant to the direction of Dr. Alvin Ureles or his successor."

However, after the decedent passed away, but prior to the judicial settlement of the estate, Genesee Hospital closed its doors. The Executor of the estate sought to void the bequest and distribute pro rata the funds to the remaining residuary beneficiaries under the cy pres doctrine by alleging that the particular purpose of the gift had failed or was impossible or impractical to achieve due to the shuttering of Genesee Hospital. RGH appeared in that proceeding and argued that proper application of the cy pres doctrine required the bequest be distributed to RGH as it was an affiliate of the Genesee Hospital and engaged in the research and treatment of respiratory illnesses through the Parkes Center, which at the time was operating under the license of RGH. Of particular import to the Court, was the recommendation made Dr. Alvin Ureles in his affidavit dated July 24, 2001.

In its Decision and Order dated April 1, 2002 the Court applied the cy pres doctrine to effectuate the donative intent of the decedent and directed that the funds comprising of 40% of the residuary estate be made available to the Parkes Center and was paid over to RGH.

Since 2001, the Parkes Center has operated under three different hospital licenses and currently operates under the license of Strong Memorial Hospital. The funds from the Estate remain under the control of RGH.

The Parkes Center asserts that RGH is unable to effectuate the donative intent of the decedent as determined by this Court in its earlier decision and subsequent decree of judicial settlement. It further maintains that to carry out the wishes of the decedent, the funds from the estate should be transferred to the Rochester Area Community Foundation to establish an endowment solely for the Parkes Center, regardless of its current or future hospital affiliations.

RGH argues that it is in the best position to carry out the donative intent of the decedent [*4][*5]as it continues to be an affiliate of Genesee Hospital and continues to sustain a long history of research and treatment of respiratory illnesses. RGH's position is bolstered by the affidavit of Dr. Alvin Ureles, who once again recommends that the funds remain with RGH.

DECISION

At the outset, the Parkes Center argues that RGH is barred from this instant application by the doctrines of stare decisis and collateral estoppel.

Stare decisis is the doctrine of precedent that once a court has laid down a principle of law as applicable to a certain set of facts, it will adhere to that principle and apply it to future cases where the facts are substantially the same. However, the circumstances and facts from the initial cy pres proceeding have changed dramatically and warrant analysis by the Court. The argument that RGH is precluded from making its application by the doctrine of collateral estoppel is also unpersuasive.

In order for the doctrine of collateral estoppel to apply, there must be an identity of issues necessarily decided in the prior proceeding and to be decided in the instant proceeding. Kret v. Brookdale Hospital, 61 NY2d 861 (1984). The Parkes Center was not a party in the original cy pres proceeding, and the issues are different in the present application before this Court.

The issue before the Court in the previous cy pres proceeding was whether to void the residuary gift to Genesee Hospital. In this application, the issue is not validity of the bequest, but whether it should remain at RGH or given to the Parkes Center. The facts of the case have also changed since the last application as the Parkes Center is no longer licensed under RGH, but rather with Strong Memorial Hospital. Accordingly, the court declines to find that the conditions for applying doctrine of collateral estoppel to this cy pres application. See Matter of Polytechnic University, 12 Misc 3d 414 (Sur. Ct. King's Co., 2006).

The doctrine of cy pres allows the Court to direct a charitable disposition to be administered and applied in such a manner that will most effectively accomplish its general purposes, whenever it appears that the circumstances have changed such as to render the charitable disposition as impracticable or impossible to effectuate. EPTL §8-1.1; Matter of Willson, 59 NY2d 461 (1983).

There are three conditions to be met before applying the cy pres doctrine: the gift must be charitable in nature; the donor must have demonstrated a general, rather than specific charitable intent; that the circumstances have changed subsequent to the gift that render literal compliance impossible or impractical. EPTL §8-1.1; Matter of Post, 2 AD3d 1091 (3rd Dept. 2003). In its previous decision relating to the Will of the deceased, this Court determined all three elements of a cy pres proceeding were present and the bequest made in Article Sixth of the Will was directed to the Parkes Center at RGH. As then, all three elements are present in the application currently before the Court. [*6][*7]

Two factors which had a significant impact in its earlier decision compel the Court to direct that the funds remain at Rochester General Hospital as opposed to the Parkes Center. The first consideration is that at the time of the initial cy pres proceeding, the Parkes Center was operating under the license of RGH, a former affiliate of the Genesee Hospital. The Court designated the Parkes Center as the appropriate recipient of the bequest because of its association with the Genesee Hospital through RGH. Absent this affiliation, the Parkes Center would not have received the funds in the first instance. Indeed, without the efforts of RGH in the initial cy pres proceeding, the bequest under the Will would been distributed to other charities.

The second consideration is the affidavit of Dr. Ureles. In the first cy pres proceeding, the Court gave great weight to the sworn statement of Dr. Ureles, who was the decedent's physician. It would be incongruous for the Court to ignore the input of the gentlemen for whom the gift was made in the first instance, who parenthetically is employed as a laboratory director at Strong Memorial Hospital. As the decedent declared in the her Will, the residuary bequest to Genesee Hospital was ". . . made as a memorial to my sister, Marjorie Frankenstein, and in appreciation of the care given to her and to me by our physician, Dr. Alvin Ureles." As such, his statement is relevant to this proceeding. The statement is not offered for the truth of the matter asserted, it merely expresses the decedent's state of mind and her deep dissatisfaction as to the care she received while a patient at Strong Memorial Hospital and that she would not have wanted any of her estate to benefit that particular institution. Loetsch v. NY City Omnibus, 291 NY 308 (1943 ). It is through the recent affidavit of Dr. Ureles that the Court is able to approximate and carry out, as nearly as may be, the intention of the donor in a consistent manner. Lutheran Hosp. Of Manhattan v. Goldstein, 182 Misc. 913 (1944). By keeping the bequest at RGH, the decedent's donative intent is preserved as RGH has a well-established respiratory illness research and treatment clinic.

For the reasons set forth above, the bequest made under Article Sixth (D) of the Will of Jean Frankenstein shall be directed to the Rochester General Hospital, to be used exclusively for research relating to and treatment of respiratory illness.

This Decision shall constitute an Order of this Court.

Dated: February 27, 2007

Rochester, New YorkEdmund A. Calvaruso

ENTERHonorable Edmund A. Calvaruso