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KRAMER v. DANALIS

49 A.D.3d 263 (2008)

854 N.Y.S.2d 112

ARI KRAMER, as Administrator of the Estate of IRVING T. BUSH, Deceased, and as Executor of VIRGINIA CASEY BUSH, Deceased, Respondent, v. IOANNIS DANALIS, Appellant.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided March 4, 2008.

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 [1998]).

Here, the amended complaint does not even make reference to the operating...

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