Emma v. Emma

Opinion

Emma v Emma

2026 NY Slip Op 04839

August 5, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Frank P. Emma, Jr., et al., appellants,

v

Karen Emma, etc., respondent.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 5, 2026

2025-02419, 2025-02788, (Index No. 508982/21)

Francesca E. Connolly, J.P.

Barry E. Warhit

Helen Voutsinas

Donna-Marie E. Golia, JJ.

Abrams Fensterman, LLP, Brooklyn, NY (Mark J. Caruso and Holly E. Peck of counsel), for appellants.

Karen M. Emma, named herein as Karen Emma, Brooklyn, NY, respondent pro se.

[*1]

DECISION & ORDER

In an action, inter alia, for a judgment declaring that a certain limited power of appointment exercised pursuant to the Frank P. Emma and Eleanor Emma Asset Management Trust is invalid, the plaintiffs appeal from two orders of the Supreme Court, Kings County (Rupert V. Barry, J.), both dated January 7, 2025. The first order denied the plaintiffs' motion for leave to amend the complaint. The second order granted the defendant's cross-motion for summary judgment dismissing the complaint and, in effect, declaring that the limited power of appointment is valid, and to cancel a notice of pendency filed against the subject property.

ORDERED that the orders are affirmed, with one bill of costs, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment, inter alia, declaring that the limited power of appointment is valid.

The plaintiffs and the defendant are siblings and the sole children of Frank P. Emma, Sr. (hereinafter Frank Sr.), and Eleanor Emma (hereinafter Eleanor and, together with Frank Sr., the Emmas). In May 2010, the Emmas created the Frank P. Emma and Eleanor Emma Asset Management Trust, the sole asset of which was certain real property the Emmas owned in Brooklyn. A trust agreement expressly provided for a limited power of appointment, which allowed each grantor to appoint one half of the trust estate upon such grantor's death to any one or more members of a class consisting of such grantor's issue.

In January 2019, Frank Sr. exercised a limited power of appointment to assign his half of the trust estate to the defendant upon his death. In October 2019, Frank Sr., as Eleanor's agent pursuant to a power of attorney, exercised Eleanor's limited power of appointment to assign her half of the trust estate to the defendant upon Eleanor's death. The Emmas both died in April 2020. In October 2020, the defendant allegedly executed a deed (hereinafter the October 2020 deed) transferring the subject property to herself as "trustee and sole remainder beneficiary."

In March 2021, the plaintiffs commenced this action, inter alia, for a judgment declaring that the limited power of appointment Frank Sr. executed on behalf of Eleanor is invalid and to void the October 2020 deed. In May 2024, following the completion of discovery, the [*2]plaintiffs moved for leave to amend the complaint. The defendant opposed the motion and cross-moved for summary judgment dismissing the complaint and, in effect, declaring that the limited power of appointment Frank Sr. executed is valid, and to cancel a notice of pendency filed against the property. The Supreme Court denied the plaintiffs' motion and granted the defendant's cross-motion. The plaintiffs appeal.

The Supreme Court properly granted the defendant's cross-motion for summary judgment dismissing the complaint and, in effect, declaring that the limited power of appointment Frank Sr. executed is valid, and to cancel the notice of pendency filed against the property. "A trust instrument is to be construed as written, and the grantors' intention is to be determined solely from the unambiguous language of the instrument itself" (Matter of Arline J. [James J.—Falasco], 174 AD3d 604, 606; see Mercury Bay Boating Club v San Diego Yacht Club, 76 NY2d 256, 267). Here, the defendant established her prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting, among other things, the trust agreement, which expressly authorized the grantors to exercise their limited powers of appointment to assign the property to one or more of the grantors' issue. The defendant also demonstrated, prima facie, that Frank Sr. was authorized to exercise the limited power of appointment on behalf of Eleanor as her agent pursuant to a power of attorney. In opposition, the plaintiffs failed to raise a triable issue of fact (see Matter of Austin, 242 AD3d 739, 741).

The Supreme Court also properly denied the plaintiffs' motion for leave to amend the complaint. "Although leave to amend a pleading should be freely given in the absence of prejudice or surprise to the opposing party (see CPLR 3025[b]), the motion should be denied where the proposed amendment is palpably insufficient or patently devoid of merit" (Jacob Post, Inc. v Samuel Hampton, LLC, 216 AD3d 625, 626; see Davydov v Youssefi, 205 AD3d 881, 883). Here, the proposed amendment was patently devoid of merit (see Jacob Post, Inc. v Samuel Hampton, LLC, 216 AD3d at 626).

The plaintiffs' remaining contentions are without merit.

Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Kings County, for the entry of a judgment, inter alia, declaring that the limited power of appointment Frank Sr. executed is valid.

CONNOLLY, J.P., WARHIT, VOUTSINAS and GOLIA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court