Opinion
September 23, 1997
Appeal from Supreme Court, New York County (Herman Cahn, J.).
Issues of fact exist as to whether defendant acted reasonably to mitigate its damages, including when defendant first became aware of plaintiff's nonperformance of the contract, and, once aware, whether its method of mitigation was reasonable ( see, Bernstein v. Freudman, 180 A.D.2d 420). Defendant does not demonstrate or even allege prejudice or surprise by the requested amendment (CPLR 3025 [b]; Fahey v. County of Ontario, 44 N.Y.2d 934), and it is of no consequence that plaintiff raised the unpleaded defense for the first time to defeat summary judgment ( see, Denburg v. Parker Chapin Flattau Klimpl, 213 A.D.2d 297; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:10, at 318).
Concur — Sullivan J.P., Ellerin, Nardelli, Williams and Andrias, JJ.