Kramer v. Danalis

Appellate Division of the Supreme Court of New York

Kramer v. Danalis

49 A.D.3d 263, 854 N.Y.2d 112

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 4, 2008

StatusPublished

Cited by6 cases

This text of 49 A.D.3d 263 (Kramer v. Danalis) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kramer v. Danalis, 49 A.D.3d 263, 854 N.Y.2d 112 (N.Y. Ct. App. 2008).

Pincite

Opinion

There was no basis for the court to consider summary judgment on plaintiffs 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in finding that a February 2002 interest holders’ agreement between defendant and plaintiffs decedent Irving Bush was superseded by a subsequent operating agreement dated October 4, 2002, which swas neither the subject of negotiation between defendant and Irving nor pertained to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 unavailing. Concur-Mazzarelli, J.P., Williams, Sweeny, Catterson and Moskowitz, JJ.

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There was no basis for the court to consider summary judgment on plaintiffs 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 plaintiffs decedent Irving Bush was superseded by a subsequent operating agreement dated October 4, 2002, which swas 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 unavailing. Concur-Mazzarelli, J.P., Williams, Sweeny, Catterson and Moskowitz, JJ.

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Bluebook (online)

49 A.D.3d 263, 854 N.Y.2d 112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kramer-v-danalis-nyappdiv-2008.

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