C. A. Foley Construction Co., Inc., Respondent, v. Chester C. Davis et al., Appellants, et al., Defendant

C. A. Foley Construction Co., Inc., Respondent, v Chester C. Davis et al., Appellants, et al., Defendant. [MAJORITY] Appeal from an order of the Supreme Court at Special Term, entered November 29, 1974 in Chenango County, which granted plaintiffs motion to amend its complaint and denied defendants’ cross motion for summary judgment. Special Term properly granted plaintiffs motion to amend its complaint in this action for damages for breach of contract and unjust enrichment for the construction of a dairy barn and office, and denied the cross motion for summary judgment. The proposed amendment alleges that the construction was performed by C. A. Foley and, at the time of plaintiffs incorporation, plaintiff purchased the assets of the C. A. Foley Construction Company owned by C. A. Foley, including appellants’ account. Since plaintiff purchased all of the assets of C. A. Foley, doing business as C. A. Foley Construction Co., it was the real party in interest at the time suit was brought. Moreover, appellants cannot claim prejudice since they were fully aware when the action was commenced that all of the work had been done by C. A. Foley prior to plaintiffs incorporation. Order affirmed, with costs. Koreman, P. J., Sweeney, Kane, Mahoney and Larkin, JJ., concur.