SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1072 

CA 15-00198 

PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ. 

 

MICHAEL MEYER, M.D., PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

UNIVERSITY NEUROLOGY, DEFENDANT-RESPONDENT.

 

JUSTIN S. WHITE, WILLIAMSVILLE, FOR PLAINTIFF-APPELLANT. 

BROWN & KELLY, LLP, BUFFALO (KEVIN D. WALSH OF COUNSEL), FOR

DEFENDANT-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Erie County (Timothy

J. Walker, A.J.), entered October 21, 2014. The order granted

defendant’s motion for summary judgment, dismissed the complaint, and

denied plaintiff’s cross motion for leave to amend the complaint. 

It is hereby ORDERED that the order so appealed from is

unanimously reversed on the law without costs, the motion is denied,

the complaint is reinstated, and the cross motion is granted upon

condition that plaintiff shall serve the amended complaint within 30

days after service of the order of this Court with notice of entry. 

Memorandum: It is undisputed that plaintiff was employed by

defendant to manage the Department of Neurology at Erie County Medical

Center and to perform services as a neurologist at that facility. It

is also undisputed that there was no written agreement memorializing

the terms of that employment. Following a dispute concerning whether

plaintiff was entitled to payments in addition to his agreed-upon

salary, plaintiff commenced this action asserting causes of action for

breach of contract, unjust enrichment, quantum meruit, and

“detrimental reliance.” Defendant thereafter moved for summary

judgment dismissing the complaint, and plaintiff cross-moved for leave

to amend the complaint to rename the fourth cause of action, removing

the caption “Detrimental Reliance,” and inserting the caption

“Equitable Estoppel.” Plaintiff contended that, “for all intents and

purposes,” the fourth cause of action asserted a cause of action for

equitable estoppel and, therefore, the proposed amendment, which

merely rephrased the language of a caption in the complaint, would not

add any additional claims. Supreme Court granted defendant’s motion

and denied plaintiff’s cross motion. We now reverse.

We conclude that, inasmuch as defendant failed to establish its

entitlement to summary judgment, the court erred in granting the

motion. Defendant’s “own submissions contain evidence of . . .
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CA 15-00198 

disputes between the parties with respect to the provisions of the

[oral] contract relating to plaintiff’s compensation” (Micro-Link, LLC

v Town of Amherst, 109 AD3d 1130, 1131). In addition, although there

was no dispute that defendant made some payments to plaintiff in

addition to his salary, the evidence submitted by defendant

established that the parties had conflicting explanations for such

payments. Resolution of those disputes and conflicts “turn[s] on

issues of credibility . . . , thereby precluding summary judgment”

(Wasek v New York City Health & Hosps. Corp., 123 AD3d 493, 494; see

Sabre Intl. Sec., Ltd. v Vulcan Capital Mgt., Inc., 95 AD3d 434, 436;

U.K. Cable Ventures v Bell Atl. Invs., 232 AD2d 294, 294-295). 

Indeed, it is well settled that, “[o]n a motion for summary

judgment[,] the court must not weigh the credibility of witnesses

unless it clearly appears that the issues are feigned and not

genuine[,] and [a]ny conflict in the testimony or evidence presented

merely raise[s] an issue of fact” (Pryor & Mandelup, LLP v Sabbeth, 82

AD3d 731, 732 [internal quotation marks omitted]; see generally

Ferrante v American Lung Assn., 90 NY2d 623, 631). Inasmuch as

defendant failed to meet its initial burden on its motion for summary

judgment, the burden never shifted to plaintiff to raise a triable

issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320,

324).

We further conclude that the court erred in denying plaintiff’s

cross motion seeking leave to amend the complaint. It is well settled

that “[p]ermission to amend pleadings should be ‘freely given’ ”

unless the proposed amendment is patently lacking in merit (Edenwald

Contr. Co. v City of New York, 60 NY2d 957, 959, quoting CPLR 3025

[b]; see Manufacturers & Traders Trust Co. v Reliance Ins. Co., 8 AD3d

1000, 1001). As plaintiff correctly contends, this is not a situation

in which a party is seeking to defeat a motion for summary judgment by

offering a new theory of liability not contained in the complaint or

bill of particulars (cf. Darrisaw v Strong Mem. Hosp., 74 AD3d 1769,

1770, affd 16 NY3d 729). Rather, the proposed amendment is based on

the same factual allegations contained in the complaint, is

“ ‘consistent with . . . plaintiff[’s] existing theories sounding in

[breach of contract, unjust enrichment, and quantum meruit], [is] not

devoid of merit[,] and [will] not result in significant prejudice or

surprise’ ” (Haga v Pyke, 19 AD3d 1053, 1055). 

Entered: November 20, 2015 Frances E. Cafarell

Clerk of the Court