Kramer v. DanalisKramer v. Danalis
There was no basis for the court to consider summary judgment on plaintiff‘s unpleaded claim for enforcement of the operating agreement. Summary judgment may be awarded on an unpleaded cause of action only if the proof supports such a claim and if the opposing party has not been misled to its prejudice (Weinstock v Handler, 254 AD2d 165, 166 [1998]).
Here, the amended complaint does not even make reference to the operating agreement, and in fact seeks to have all the agreements declared void, which is contradictory to the relief actually granted. Furthermore, even if it were appropriate to consider the unpleaded claim, summary judgment would not lie. The court erred in finding that a February 2002 interest holders’ agreement between defendant and plaintiff‘s decedent Irving Bush was superseded by a subsequent operating agreement dated October 4, 2002, which was neither the subject of negotiation between defendant and Irving nor pertained to precisely the same subject matter.
We have considered defendant‘s remaining arguments and find them
Concur—Mazzarelli, J.P., Williams, Sweeny, Catterson and Moskowitz, JJ.