Opinion
June 19, 1995
Appeal from the Supreme Court, Dutchess County (Jiudice, J.).
Ordered that the judgment is affirmed, with costs.
Contrary to the appellant's contention, the plaintiff alleged and proved that the "enterprise" was distinct from the "pattern of racketeering activity" ( 18 U.S.C. § 1962 [c]; see, United States v. Turkette, 452 U.S. 576; see also, H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229; cf., Simpson Elec. Corp. v. Leucadia, Inc., 72 N.Y.2d 450, 461).
Further, while the appellant correctly asserts that the plaintiff was not entitled to recover certain sums based on General Municipal Law article 18 (see, Landau v. Percacciolo, 66 A.D.2d 80, 85-86, affd 50 N.Y.2d 430), upon this Court's factual review power, we find that the plaintiff may recover these sums pursuant to its cause of action sounding in fraud as conformed to the proof adduced at trial, in the absence of a showing of prejudice to the appellant (see, CPLR 3025 [c]; see also, Murray v. City of New York, 43 N.Y.2d 400; Leon's Collision Shop v Rian Realty, 211 A.D.2d 666).
There is no merit to the appellant's remaining contentions. Copertino, J.P. Santucci, Altman and Krausman, JJ., concur.