Opinion
July 14, 1995
Appeal from the Supreme Court, Erie County, Rath, Jr., J.
Present — Pine, J.P., Fallon, Doerr and Davis, JJ.
Judgment unanimously affirmed without costs. Memorandum: We conclude that Supreme Court properly permitted plaintiff building contractor to change his theory of liability from breach of an express contract to breach of an implied contract with respect to the Salt Road project (see, CPLR 3025 [c]; Gonfiantini v Zino, 184 A.D.2d 368, 369). Defendants failed to show that they were prejudiced thereby and, indeed, presented their own proof of the reasonable value of plaintiff's services (see, Gonfiantini v Zino, supra, at 370; Rothstein v. City Univ., 148 Misc.2d 911, 914, affd 194 A.D.2d 533; cf., Donohue v. Minicucci, 174 A.D.2d 1013). Contrary to defendants' contention, the testimony of plaintiff's experts provided sufficient proof of the reasonable value of a general contractor's services on the Salt Road project. We further reject the contention of defendants that, because plaintiff cashed their check marked "payment in full to date for house and office", an accord and satisfaction resulted. While, "[a]s a general rule, acceptance of a check in full settlement of a disputed unliquidated claim operates as an accord and satisfaction discharging the claim" (Merrill Lynch Realty/Carll Burr, Inc. v Skinner, 63 N.Y.2d 590, 596, rearg denied 64 N.Y.2d 885), here, defendant James J. Moran testified that no dispute over payment had yet arisen when plaintiff cashed the check.