Opinion
570733/05.
Decided October 18, 2006.
Defendants appeal from (1) an order of the Civil Court, New York County (Joan M. Kenney, J.), dated September 19, 2005, which denied their motion for partial summary judgment and to compel discovery, and granted plaintiff's cross motion to amend the complaint, and (2) that portion of an order (same court and Judge), dated August 29, 2005, which granted plaintiff's motion for discovery.
Order (Joan M. Kenney, J.), dated September 19, 2005, modified to grant defendants' motion to dismiss the breach of contract claim covering the durational term of the consent agreement and the claim founded upon the New York Civil Rights Law relating to any activities which occurred outside New York State, and as modified, affirmed, without costs. Order (Joan M. Kenney, J.), dated August 29, 2005, affirmed, without costs.
PRESENT: DAVIS, J.P., GANGEL-JACOB, J.
Defendants' motion for partial summary judgment with respect to plaintiffs' claim pursuant to the New York Civil Rights Law for activities outside New York is granted since, as conceded by plaintiffs, a party may "recover for trade or commercial use of one's own likeness only to the extent that the use occurs in New York" ( Cuccioli v. Jekyll Hyde Neue Metropol Breman Theater Producktion Gmbh Co., 150 F Supp 566, 575). Defendants' motion to dismiss the breach of contract claim covering the durational term of the parties' consent agreement is granted, since plaintiffs have consistently maintained that the complaint was not based on a breach of contract during such time period. Finally, the motion court providently exercised its discretion in granting plaintiffs' motion for leave to amend the complaint to add a claim of unjust enrichment ( see Edenwald Construction Co., Inc. v. City of New York, 60 NY2d 957). In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted ( see CPLR 3025[b] ; Inwood Tower, Inc. v. Fireman's Fund Ins. Co., 290 AD2d 252, 252-253), and defendants sustained no prejudice or undue surprise ( see Van Kipnis v. Van Kipnis, 8 AD3d 94). Contrary to defendants' contention, the unjust enrichment claim is not barred since the recovery sought is limited to the period following the expiration of the consent agreement ( see Clark-Fitzpatrick, Inc v. Long Island R.R. Co., 70 NY2d 382 ; compare Oil Heat Institute of Long Island Ins. Trust v. RMTS Associates, LLC., 4 AD3d 290).
This constitutes the decision and order of the court.
I concur.