KRAMER v. DANALIS (2008)

Judgment, Supreme Court, New York County (Rosalyn Richter, J.), entered July 17, 2006, granting the motion of plaintiff's decedent Virginia Casey Bush for partial summary judgment, declaring that she had the exclusive right to manage the subject property pursuant to an operating agreement, unanimously reversed, on the law, without costs, the judgment vacated, the motion denied, and the matter remanded to Supreme Court for further proceedings.

 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 A.D.2d 165, 166, 679 N.Y.S.2d 48 [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in finding that a February 2002 interest holders' agreement between defendant and plaintiff's decedent Irving Bush was superseded by a subsequent operating agreement dated October 4, 2002, which was neither the subject of negotiation between defendant and Irving nor pertained to precisely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 unavailing.