In Majka v Haskell, 301 NY 206 (1950), although the municipality was found to have discharged its duty by closing to pedestrians an area of damaged sidewalk on a viaduct, it failed in its duty to post warnings to pedestrians at the entrances to the viaduct about the condition, resulting in the plaintiff entering and crossing the viaduct on foot and stepping into traffic at the damaged area where he was struck by a vehicle. In Ramos v Triborough Bridge & Tunnel Auth., 179 AD2d 471 (1st Dept 1992), also cited by plaintiff, the Bridge and Tunnel Authority (TBTA) and its employee, a tow truck driver, were sued on the theory that the employee was negligent when he stopped his truck on a bridge lane to aid a disabled vehicle but did not illuminate his truck's directional arrow and did not know to set out cones behind the truck, resulting in the plaintiff's vehicle colliding with the truck. The jury found the TBTA 65 percent negligent for plaintiff's injuries.
In Ramos v Triborough Bridge Tunnel Auth. ( 179 AD2d 471 [1st Dept 1992]), also cited by plaintiff, the Bridge and Tunnel Authority (TBTA) and its employee, a tow truck driver, were sued on the theory that the employee was negligent when he stopped his truck on a bridge lane to aid a disabled vehicle but did not illuminate his truck's directional arrow and did not know to set out cones behind the truck, resulting in the plaintiffs vehicle colliding with the truck. The jury found the TBTA 65% negligent for plaintiffs injuries.
The jury's findings of negligence against defendant was based upon "`conjecture and speculation which is no substitute for proof'" (Grillias v D'Arrigo Bros. Co., 144 A.D.2d 638, 639). We note that Ramos v Triborough Bridge Tunnel Auth. ( 179 A.D.2d 471), heavily relied upon by plaintiff, is distinguishable from the case at bar, since, in that case, neither the truck's flashers nor arrow board was operating and the tow truck had been stationary for a substantially longer period prior to the accident and, according to that plaintiff's expert, defendant's failure to place cones was inappropriate since the truck was stopped for more than four minutes. We have considered plaintiff's remaining arguments, and find them to be meritless.
To the extent that the pleadings may have been inadequate, any defect in pleading was cured by the proof at trial, which clearly established the rights and obligations that the parties requested be declared. Supreme Court should have considered the pleadings amended to conform to the proof (see, CPLR 3025 [c]; Ramos v Triborough Bridge Tunnel Auth., 179 A.D.2d 471, 473). Thus, we modify the court's judgment to declare that defendant is obligated to provide plaintiff with an office and secretary in furtherance of plaintiff's duties under the employment contract; that defendant is obligated to provide plaintiff with two leased vehicles, to be replaced no more than every five years with new leased vehicles of a make and model of defendant's choice; and that the non-competition covenant precludes plaintiff from engaging in any real estate development activities except as an employee of defendant.
Moreover, the misnomer may easily be corrected by amending the complaint. Accordingly, the branch of Bono's motion which is to dismiss the complaint for lack of standing is denied, and the complaint is amended sua sponte (see, Rossignol v Silvernail, 185 AD2d 497, 499; Ramos v Triborough Bridge & Tunnel Auth., 179 AD2d 471, 473; Connors, Practice Commentaries McKinney's Cons Laws of NY, Book 7B CPLR C3025:17 at 109-110). The plaintiff is directed to serve and file an amended complaint correcting the name of the plaintiff in the caption within 30 days after the date of entry of this order.