| Bryant v Broadcast Music, Inc. |
| 2009 NY Slip Op 01938 [60 AD3d 799] |
| March 17, 2009 |
| Appellate Division, Second Department |
| Anne Bryant, Appellant, v Broadcast Music, Inc., AlsoKnown as BMI, et al., Respondents, et al., Defendants. Anne Bryant, Appellant, v SunbowProductions, Inc., Respondent. |
—[*1] Judith M. Saffer, New York, N.Y., for respondent Broadcast Music, Inc. (also known asBMI). Patterson Belknap Webb & Tyler, LLP, New York, N.Y. (Gloria C. Phares and John C.Knapp of counsel), for respondent Sunbow Productions, Inc.
In related actions, inter alia, to recover for unpaid royalties, which were consolidated, theplaintiff appeals from (1) a judgment of the Supreme Court, Rockland County (O'Rourke, J.),entered May 8, 2007, which, upon an order of the same court dated January 30, 2006, amongother things, denying that branch of her motion which was for leave to conform the pleadings tothe proof adduced at the trial by asserting a cause of action alleging breach of contract, and uponan order of the same court entered March 13, 2007, inter alia, granting the separate motions ofthe defendants Broadcast Music, Inc., also known as BMI, and Sunbow Productions, Inc.,pursuant to CPLR 4401 for judgment as a matter of law, is in favor of those defendants andagainst the plaintiff dismissing the complaint insofar as asserted against those defendants, and(2) an order of the same court entered June 20, 2007, which denied her motion to vacate thejudgment.
Ordered that the judgment is modified, on the law, by deleting the provision thereofdismissing the complaint insofar as asserted against the defendant Sunbow Productions, Inc., and[*2]substituting therefor a provision dismissing the causes ofaction alleging unjust enrichment and for the imposition of a constructive trust insofar asasserted against that defendant; as so modified, the judgment is affirmed, that branch of theplaintiff's motion which was for leave to conform the pleadings to the proof adduced at the trialby asserting a cause of action alleging breach of contract is granted, the cause of action allegingbreach of contract is severed, the matter is remitted to the Supreme Court, Rockland County, fora new trial on that cause of action, and the order dated January 30, 2006 is modified accordingly;and it is further,
Ordered that the order entered June 20, 2007 is affirmed; and it is further,
Ordered that the defendant Broadcast Music Inc., also known as BMI is awarded one bill ofcosts payable by the plaintiff, and the plaintiff is awarded one bill of costs payable by thedefendant Sunbow Productions, Inc.
Contrary to the assertion of the defendant Sunbow Productions, Inc. (hereinafter Sunbow),the record does not indicate that the trial court determined a cause of action alleging breach ofcontract after having denied the plaintiff's motion to conform the pleadings to the proof to addsuch a cause of action. Further, we agree with the plaintiff that the trial court improvidentlyexercised its discretion in denying that branch of her motion which was to conform the pleadingsto the proof. "Leave to conform a pleading to the proof pursuant to CPLR 3025 (c) should befreely granted absent prejudice or surprise resulting from the delay" (Alomia v New YorkCity Tr. Auth., 292 AD2d 403, 406 [2002]; see Thailer v LaRocca, 174 AD2d 731[1991]). Here, Sunbow suffered no prejudice or surprise because that branch of the motion wasbased upon a written agreement admitted at its own instance and the plaintiff did not allege anynew facts (see Murray v City of New York, 43 NY2d 400, 405 [1977]; Knox v Estateof Sprague, 293 AD2d 451 [2002]; Eng v Di Carlo, 79 AD2d 1018 [1981]).
The plaintiff's remaining contentions either are without merit or need not be reached in lightof our determination. Ritter, J.P., Miller, Covello and Angiolillo, JJ., concur.