Decree by Honorable Orazio R. Bellantoni

Justice of the New York State Supreme Court, Dated April 25, 2005

(the decree has been retyped for clarity: click here for a pdf copy)

WHEREAS, this Court has considered the pleadings, petition, written motion and submissions, exhibits, and other evidence including any oral arguments submitted by the respective parties and the Attorney General of the State of New York, and has had due deliberation thereon;

Now therefore, it is hereby

ORDERED ADJUDGED AND DECREED, that on consent of all parties, the CPLR Article 78 proceeding entitled In the Matter of an Article 78 Proceeding Richard Cantor v. Mamaroneck Union Free School District and The Board of Education of the Mamaroneck Union Free School District, bearing Westchester County Index Number 10481/04, is hereby consolidated with the related action entitled The Board of Education of the Mamaroneck Union Free School District v. Attorney General of the State of New York, as the Statutory Representative of the Ultimate Charitable Beneficiaries, bearing Westchester County Index No. 09681/04; and it is further

ORDERED, ADJUDGED AND DECREED, that the Petitioner, Richard Cantor, the grandson of Adolph and Helen Kemper, the original Donors of the Kemper Memorial Park, and as a representative of the Donors’ estate, may enforce the terms of the gift; and it is further

ORDERED, ADJUDGED AND DECREED, that the Deeds at issue, conveying the Kemper Memorial Park contain restrictive covenants which require the land to “be held and maintained in perpetuity for public and school uses as a memorial to (the Donors’ son.) the late Lt. Richard (M.) Kemper, and the other students and former students of Union Free School District No. 1, Town of Mamaroneck, N.Y., who gave their lives in the service of the United State of America in WWII; all of said parcels to be collectively known as “Richard Kemper Park,” and it is further

ADJUDGED AND DECREED, that in connection with said gift, the Kempers underwrote virtually all costs to construct and beautify the Memorial Park, including the landscaping, and purchase of the granite monument and granite benches; and it is further

ADJUDGED AND DECREED, that Respondents, Mamaroneck Union Free School District and the Baord of Education of the Mamaroneck Union Free School District, are not fulfilling their part of the bargain pursuant to the covenants contained in the Deeds, and it is further

ADJUDGED AND DECREED, that the Project, which includes plans to scale back the size of the Kemper Memorial Park and create a “buffer” between same and the soccer field with “newly dedicated land”, regardless of how “tasteful, visually appealing, and more visible to drivers and pedestrians on Boston Post Road, “does not significantly honor the sacrifice of those soldiers who gave their lives in service of their country, and violates the specific covenants, quoted above: and itis further

ORDERED, ADJUDGED AND DECREED, that no general charitable objective is manifest in the said Deeds and, therefore, the doctrine of Cy Pres is not applicable; and it is further

ORDERED, ADJUDGED AND DECREED, that respondents are prohibited from implementing the Project; and it is further

ORDERED, ADJUDGED AND DECREED, that all other requested relief is denied.

Dated: April 25, 2005

Honorable Orazio R. Bellantoni
Justice of the New York State Supreme Court