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. However, a court may grant summary judgment based upon an unpleaded defense where reliance upon that defense neither surprises nor prejudices the plaintiff.
An action for a declaratory judgment was filed by a corporation, which had an easement over the individual's property and to declare that the corporation has an easement over the individual' s property and to permanently enjoin the individual from interfering with the corporation's use of that easement. The individual claimed that a lease and easement agreement between the parties had been terminated by virtue of the purportedly unlawful activities of the corporation. The individual was denied summary judgment and the case was appealed to the Supreme Court of New York, Appellate Division.
Should the declaratory judgment be issued in favor of the corporation?
The court found that summary judgment could not have been granted to the individual on his claim that the easement had terminated because there was nothing in the agreement, which provided for its termination on the basis of any of the complained activities. In addition, the trial court properly determined that the activities undertaken by the individual 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 corporations' activities in any manner, including one that would effectively eliminate the corporation's rights under the agreement.