A-1 Check Cashing Service, Inc.v.Goodman

Appellate Division of the Supreme Court of New York, Second DepartmentMar 13, 1989
148 A.D.2d 482 (N.Y. App. Div. 1989)
148 A.D.2d 482538 N.Y.S.2d 830

March 13, 1989

Appeal from the Supreme Court, Nassau County (Roncallo, J.).

Ordered that the judgment is affirmed, with costs.

The trial court has the power to conform the pleadings to the proof even in the absence of a motion by a party, as long as there is no prejudice to the opposing party (see, Cartwright Van Lines v. Barclays Bank, 120 A.D.2d 478; D'Antoni v. Goff, 52 A.D.2d 973). The variance between the pleadings and the proof was not so great that the defendants could not reasonably have expected that such evidence would be adduced at trial (see, Stern v. Stern, 114 A.D.2d 408, 409; Sharkey v. Locust Val. Mar., 96 A.D.2d 1093, 1094, appeal dismissed 61 N.Y.2d 669; Jemzura v. Jemzura, 29 A.D.2d 797). The forgeries in question were merely one aspect of the defendants' scheme to defraud the plaintiff as alleged in the complaint. We also note that despite their professed surprise, the defendants did not request a continuance so that they could present expert evidence or obtain discovery.

The plaintiff proved by a preponderance of the evidence that the individual defendant had defrauded it by issuing worthless checks in the defendant corporation's name and by forging the endorsement on the checks (see, Brown v. Lockwood, 76 A.D.2d 721, 730-731). A corporate officer is individually liable for fraudulent acts or false representations of his own, or in which he participates, even though his actions in such respect may be in furtherance of the corporate business (see, 15 N.Y. Jur 2d, Business Relationships, § 1079, at 352). Thus, the individual defendant was properly held liable for the fraudulent check cashing scheme.

We have considered the defendants' remaining contentions and find them to be without merit. Mangano, J.P., Bracken, Spatt and Balletta, JJ., concur.