Kramer v. Danalis

There was no basis for the court to consider summary judgment on plaintiffs 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 AD2d 165, 166 [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…