CPLR R. 3212
[Fee Fy] Fofana v 41 W. 34th St., LLC, 2009 NY Slip Op 03928 (App. Div., 1st, 2009)
Summary judgment can only be awarded on an unpleaded claim if the proof
supports such a claim and the opposing party has not been prejudiced (Kramer v Danalis, 49 AD3d 263 [*2][2008]).
Here, Midboro was not yet a party to this action when the motion was
made. Consolidation did not occur until four months after Newmark
sought summary judgment for indemnification.
The bold is mine. The bracketed stuff is mine as well.
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