Opinion
No. 2009-03738.
February 23, 2010.
In an action for an accounting, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated March 4, 2009, which granted the defendant's motion, in effect, to preclude it from amending its complaint to add a cause of action to recover damages for fraud and/or fraudulent transfer of property.
Long, Tuminello, Besso, Seligman, Werner, Johnston Sullivan, LLP, Bay Shore, N.Y. (Kevin R. Johnston of counsel), for appellant.
Scott Lockwood, North Babylon, N.Y., for respondent.
Before: Santucci, J.P., Dickerson, Chambers and Sgroi, JJ., concur.
Ordered that the order affirmed, with costs.
The Supreme Court providently exercised its discretion in limiting the plaintiffs proof at trial to the only cause of action which it pleaded in its complaint, to wit, an accounting, and in excluding any evidence relating to an alleged fraudulent transfer. The complaint failed to adequately plead or otherwise apprise the defendant of any claim based upon fraud and/or fraudulent transfer ( see CPLR 3016 [b]; see also Debtor and Creditor Law §§ 275, 276; Michaelson v Scaduto, 205 AD2d 507). Moreover, the plaintiff never moved for leave to amend its complaint and thus, to have, in effect, permitted such an amendment on the eve of trial would have unduly prejudiced the defendant ( see generally Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d 523; Sewkarran v DeBellis, 11 AD3d 445; cf. Weinstock v Handler, 254 AD2d 165). Accordingly, the defendant's motion was properly granted.
The plaintiffs remaining contentions are without merit.