Opinion
2001-01943
Argued March 14, 2002.
April 1, 2002.
In an action, inter alia, to recover damages for breach of contract, the defendant appeals from a judgment of the Supreme Court, Putnam County (Rudolph, J.), entered February 7, 2001, which, upon a jury verdict, is in favor of the plaintiff and against it in the principal sum of $205,690.
Joel Martin Aurnou, White Plains, N.Y. (Kieran J. Sullivan of counsel), for appellant.
Rodney L. Salvati, Mount Kisco, N.Y., for respondent.
Before: FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, SANDRA L. TOWNES, STEPHEN G. CRANE, JJ.
ORDERED that the judgment is affirmed, with costs.
Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in granting the plaintiff's application, made at the close of evidence, to conform the pleadings to the proof pursuant to CPLR 3025(c) (see Murray v. City of New York, 43 N.Y.2d 400, 406; Lane v. Beard, 265 A.D.2d 382, 383). The defendant suffered no surprise or prejudice as the plaintiff did not allege any new facts (see Murray v. City of New York, 43 N.Y.2d 400; Ford v. Martino, 281 A.D.2d 587, 588; Weinstein Enters. v. Cappelletti, 217 A.D.2d 616, 617). Furthermore, the defendant could have moved for a continuance and reopened its case to address any changes in the pleadings, but failed to do so. Accordingly, the Supreme Court properly granted the plaintiff's application.
Under the facts and circumstances of this case, it was also proper to permit the plaintiff to assert a personal cause of action under Business Corporation Law § 720 (see Tornick v. Dinex Furniture Indus., 148 A.D.2d 602; Hammer v. Werner, 239 A.D. 38; see also Vincel v. White Motor Corp., 521 F.2d 1113, 1118-1119).
Based on a fair interpretation of the evidence (see Nicastro v. Park, 113 A.D.2d 129), the jury could have concluded that as a result of the breach by the decedent, James T. Sprague, the plaintiff was damaged in the sum of $205,690. Accordingly, the Supreme Court properly denied the defendant's motion to set aside the verdict as against the weight of the evidence.
The defendant's remaining contentions are without merit.
SANTUCCI, J.P., ALTMAN, TOWNES and CRANE, JJ., concur.