Boyle v. Marsh & McLennan Co.

1588 Appeal from an order of the Supreme Court, Onondaga County (John C. Cherundolo, A.J.), entered May 11, 2007. The order denied defendants’ motion for summary judgment dismissing the complaint and granted plaintiffs cross motion for summary judgment. 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: Supreme Court properly denied defendants’ motion for summary judgment dismissing the complaint and granted plaintiffs cross motion for summary judgment except with respect to that part of the cross motion seeking attorney’s fees (see Wright v Selle, 27 AD3d 1065, 1067 [2006]; Clelland v Lettro, 15 AD3d 874, 875 [2005]), 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 AD2d 156, 158 [1988]; see Weinstock v Handler, 254 AD2d 165, 166 [1998]; Home Sav. Bank of Am. v Coconut Is. Props., 226 AD2d 1138 [1996], lv dismissed 90 NY2d 935 [1997]). 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 plaintiffs cross motion for summary judgment on a breach of contract theory (see Torrioni v Unisul, Inc., 214 AD2d 314, 315 [1995]; Stiber v Cotrone, 153 AD2d 1006, 1007 [1989], lv denied 75 NY2d 703 [1990]). Present—Scudder, P.J., Hurlbutt, Centra, Green and Gorski, JJ.