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

*1034unpleaded 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…