Creary v. Davie

Order unanimously affirmed without costs. Memorandum: In this contract action, plaintiffs contend that they are entitled to summary judgment because defendant’s only opposition to their motion was based on the unpleaded defense that decedent had released him from the debt arising from the contract. Defendant’s assertion of this 1034 unpleaded defense neither surprised nor prejudiced plaintiffs, and therefore it was properly considered by Supreme Court (see, Olean Urban Renewal Agency v Herman, 101 AD2d 712, 713). Because factual questions exist whether this purported release or covenant not to sue was signed by decedent, or whether decedent intended the debt arising from the contract to be embraced within the fair import of its terms (see, Farnham v Farnham, 204 App Div 573), plaintiffs’ motion and defendant’s cross motion for summary judgment were properly denied (see generally, Starr v Johnsen, 143 AD2d 130, 132; TLC Med. Transp. Servs. v Syracuse City School Dist., 133 AD2d 529). (Appeals from Order of Supreme Court, Monroe County, Stander, J. — Summary Judgment.) Present — Denman, P. J., Green, Lawton, Fallon and Doerr, JJ.