Appeal from a judgment of the District Court of Suffolk County, Second District (Patrick J. Barton, J.), entered on January 6, 2005. The judgment, after a jury trial, awarded plaintiff the principal sum of $5,293 as against defendant Huntington Village Theater Company, Inc.

Judgment affirmed without costs.

The jury's conclusions, that the parties entered into a contract, that defendant Huntington Village Theater Company, Inc. breached the contract, and that plaintiff was thereby damaged in the amount of $5,293, are supported by a fair interpretation of the evidence. Contrary to the defendant's contention, plaintiff's documentary exhibit entitled "Final Reconciliation with Huntington Village Theater Company," which set forth, inter alia, an itemized account of revenues and expenses for the theatrical production, upon which the plaintiff's claim for monetary damages was based, was properly introduced into evidence. Defendant's argument, in effect, that the Final Reconciliation improperly allowed plaintiff to change her theory of recovery at trial from an alleged breach of an oral contract to an alleged breach of a written contract, is without merit. Plaintiff's theory of recovery at trial consistently remained defendant's alleged [*2]breach of an oral agreement to reimburse plaintiff for her expenditures from the revenues generated by the theater production. Defendant cannot claim prejudice or surprise since the document was submitted by plaintiff in response to defendants' discovery demands, and was appended to defendants' pre-trial motion to, inter alia, strike the pleadings pursuant to CPLR 3126.

Rudolph, P.J., McCabe and Lippman, JJ., concur.
Decision Date: February 27, 2006