Opinion
April 6, 1998
Appeal from the Supreme Court, Dutchess County (Hillery, J.).
Ordered that the order is affirmed insofar as appealed and cross appealed from, without costs or disbursements.
The background facts to this dispute may be found in the companion case of Millbrook Hunt v. Smith ( 249 A.D.2d 281 [decided herewith]).
That branch of the motion of the defendant Edgar O. Smith which was for a declaration that the subject "Lease and Easement Agreement" had been terminated by virtue of the purportedly unlawful activities of Millbrook Hunt, Inc. (hereinafter the Hunt), should not have been denied on the ground that Smith's pleading neither contained that defense nor raised it as a counterclaim. As a general rule, a defendant's motion for summary judgment will be denied where it is predicated on a ground not pleaded as a defense in the answer (see, Contelmo's Sand Gravel v. J. J. Milano, Inc., 96 A.D.2d 1090). However, "a court may grant summary judgment based upon an unpleaded defense where reliance upon that defense neither surprises nor prejudices the plaintiff" (Olean Urban Renewal Agency v. Herman, 101 A.D.2d 712, 713; see also, ATN Marts v. Ireland, 195 A.D.2d 959; Williams Corp. v. Roma Fragrances Cosmetics, 121 A.D.2d 278; Igbara Realty Corp. v. New York Prop. Ins. Underwriting Assn., 104 A.D.2d 258; Contelmo's Sand Gravel v. J. J. Milano, Inc., supra). Here, Smith's motion papers completely apprised the Hunt of Smith's claim, the Hunt was clearly aware of all the facts underlying the claim, and the Hunt fully availed itself of the opportunity to respond. Nevertheless, summary judgment cannot be granted to the defendant on his claim that the easement has terminated, as there is nothing in the Agreement which provides for its termination on the basis of any of the activities complained of
In addition, the Supreme Court properly determined that the activities undertaken by Smith were "improvements" which triggered his modification rights under the Agreement, but that he did not establish his entitlement as a matter of law to a declaration that he was entitled to redirect the Hunt's activities in any manner including one that would effectively eliminate the Hunt's rights under the agreement.
We have examined the parties' remaining contentions and find them to be without merit.
Santucci, J.P., Joy, Friedmann and McGinity, JJ., concur.