Kramer v. Danalis
Cases that cite this one
6 later published cases cite this decision.
- John A. Mansour v. Morgan Stanley (District Court, E.D. Texas 2025)
- Case transferred to the Southern District of New YorkJohn A. Mansour v. Morgan Stanley (District Court, E.D. Texas 2025)
- Diamond Roofing Co., Inc. v. PCL Props., LLC (Appellate Division of the Supreme Court of New York 2017)
- Mendoza v. Manila Bar & Restaurant Corp. (Appellate Division of the Supreme Court of New York 2016)
- Roddy v. Nederlander Producing Co. of America, Inc. (Appellate Division of the Supreme Court of New York 2012)
- Fofana v. 41 West 34th Street, LLC (Appellate Division of the Supreme Court of New York 2009)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion of the Court
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 consider the unpleaded claim, summary judgment would not lie. The court erred in finding that a February 2002 interest holders’ agreement between defendant and plaintiffs decedent Irving Bush was superseded by a subsequent operating agreement dated October 4, 2002, which swas neither the subject of negotiation between defendant and Irving nor pertained to precisely the same subject matter.
We have considered defendant’s remaining arguments and find them unavailing. Concur-Mazzarelli, J.P., Williams, Sweeny, Catterson and Moskowitz, JJ.
Case-law data current through September 30, 2026. Source: CourtListener bulk data.