Weinstock v. Handler ( 1998 )

Order, Supreme Court, New York County (Ira Gammerman, J.), entered June 12, 1996, which denied plaintiffs motion for partial summary judgment pursuant to CPLR 3212 (e) and which granted the cross-motion of defendants Emmerich and Rita Handler for summary judgment, reversed, on the law, without costs or disbursements, plaintiffs motion for partial summary judgment granted and the matter remanded to the Supreme Court for further proceedings in accordance herewith.

Plaintiff owns an 8% interest in a limited partnership that owned a building located in Brooklyn. Plaintiff asserted that defendant Emmerich Handler represented to him that the building could be sold for $11,750,000. Based upon this representation, plaintiff and defendant arrived at a purchase price of $425,000 and, in February 1984, plaintiff and defendant entered into a letter agreement in which defendant agreed to purchase plaintiffs interest in the partnership for such sum. The agreement provided that $25,000 was to be paid upon execution of the contract, with the balance due at the closing, scheduled to take place on January 2, 1985.

In January 1985, prior to closing, plaintiff allegedly learned that defendant had in fact listed the building for a sum greatly in excess of that represented to plaintiff. Defendant allegedly had received offers between $18 million and $20 million for the building, and plaintiff alleged he would never have agreed to sell his interest in the partnership for merely $425,000 had he known of these facts. As a result, plaintiff demanded that defendant rescind the sale.

Thereafter, in January 1985, the parties entered into a second letter agreement in which defendant noted that there was no need for him to make a tender of $400,000 of the purchase price since plaintiff claimed the right to rescission. However, defendant also acknowledged that should it later be determined that plaintiff did not have the right to rescission or if plaintiff waived that claim, defendant would pay plaintiff $400,000 plus interest at 12% per annum from January 1, 1985 upon not less than 30 days written notice.

While the agreements are related, the complaint seeks to rescind the 1984 agreement, which is a contract for the sale of interest in a limited partnership. On the other hand, plaintiff’s motion for summary judgment seeks to enforce the 1985 agreement that required defendant to pay plaintiff $400,000 if plaintiff did not have a right to rescission or if plaintiff waived that claim.

While the general rule is that a party may not obtain summary judgment on an unpleaded cause of action (Cohen v City Co., 283 NY 112), it is also true that summary judgment may be awarded on an unpleaded cause of action if the proof supports such cause and if the opposing party has not been misled to its prejudice (Torrioni v Unisul, Inc., 214 AD2d 314, 315). As with a trial, the court may deem the pleadings amended to conform to the proof (Deborah Intl. Beauty v Quality King Distribs., 175 AD2d 791, 793).

In this case, the documentary evidence submitted on the motion for summary judgment supports plaintiff’s claim as to the 1985 agreement. Plaintiff described and annexed the 1985 agreement and asserted that he waived his rescission claim. As plaintiff contends, since defendant drafted the 1985 agreement, and solicited plaintiff’s agreement to its terms, it cannot be said that defendant has been misled to his prejudice (Torrioni v Unisul, Inc., supra, at 315). By its own terms, the January 1985 agreement expressly contemplated its enforcement at any time after execution merely upon plaintiffs waiver of his rescission claim. Thus, plaintiff established his entitlement to payment pursuant to the 1985 agreement and, in opposition, defendant did not dispute the merits of said motion and does not do so on appeal. Concur — Sullivan, J. P., Rosenberger, Nardelli and Saxe, JJ.