Nehmadi v Davis, 95 AD3d 1181 (2nd Dept. 2012)
The buyer now argues that the Supreme Court was without authority to appoint the referee, as neither party requested such relief in their respective motions. The buyer's argument is without merit.
"The court may grant relief, pursuant to a general prayer contained in the notice of motion or order to show cause, other than that specifically asked for, to such extent as is warranted by the facts plainly appearing [in] the papers on both sides. It may do so if the relief granted is not too dramatically unlike the relief sought, and if the proof offered supports it and the court is satisfied that no one has been prejudiced by the formal omission to demand it specifically (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2214:5 at 84). Whether to grant such relief is discretionary with the court" (HCE Assoc. v 3000 Watermill Lane Realty Corp., 173 AD2d 774, 774-775 [1991] [citations omitted]; see Tirado v Miller, 75 AD3d 153 [2010]).
Here, the relief granted was not unrelated to the relief actually sought (cf. Condon v Condon, 53 AD2d 622 [1976]), particularly where the seller's opposition to the buyer's motion included a request that, should the seller's summary judgment motion be denied, the court "set[ ] an immediate time and place for closing." Moreover, the buyer was not prejudiced by the formal omission to demand the appointment of a referee specifically (see HCE Assoc. v 3000 Watermill Lane Realty Corp., 173 AD2d at 774-775; see also Mastandrea v Pineiro, 190 AD2d 841 [1993]; cf. Goldstein v Haberman, 183 AD2d 807 [1992]).
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