BOYLE v. MARSH McLENNAN COMPANIES INC USA (2008)

 Supreme Court properly denied defendants' motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment except with respect to that part of the cross motion seeking attorney's fees (see Wright v. Selle, 27 A.D.3d 1065, 1067, 811 N.Y.S.2d 525;  Clelland v. Lettro, 15 A.D.3d 874, 875, 789 N.Y.S.2d 795), and we therefore modify the order accordingly.  “It is well settled that summary judgment may be awarded on an unpleaded cause of action if the proof supports such cause [of action] and if the opposing party has not been misled to its prejudice” (Rubenstein v. Rosenthal, 140 A.D.2d 156, 158, 528 N.Y.S.2d 539;  see Weinstock v. Handler, 254 A.D.2d 165, 166, 679 N.Y.S.2d 48;  Home Sav. Bank of Am. v. Coconut Is. Props., 226 A.D.2d 1138, 641 N.Y.S.2d 481, lv. dismissed 90 N.Y.2d 935, 664 N.Y.S.2d 272, 686 N.E.2d 1367).   Here, plaintiff alleged sufficient facts in the complaint to place defendants on notice of a possible cause of action for breach of contract, and he raised that theory of liability in support of his cross motion.   Defendants had an opportunity to address the merits of the alleged new theory as well as the proof submitted in support thereof in response to plaintiff's cross motion and chose not to.   We thus reject the contention of defendants that they have been misled to their prejudice by plaintiff's cross motion for summary judgment on a breach of contract theory (see Torrioni v. Unisul, Inc., 214 A.D.2d 314, 315, 624 N.Y.S.2d 433;  Stiber v. Cotrone, 153 A.D.2d 1006, 1007, 545 N.Y.S.2d 625, lv. denied 75 N.Y.2d 703, 552 N.Y.S.2d 109, 551 N.E.2d 602).

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the cross motion in part and vacating the award of attorney's fees and as modified the order is affirmed without costs.

MEMORANDUM: