Town of Pleasant Valley v. Daley

In an action to recover damages, inter alia, for violation of the Racketeer Influenced and Corrupt Organizations Act (RICO; 18 USC §§ 1961-1968), the defendant Gordon S. Daley appeals from a judgment of the Supreme Court, Dutchess County (Jiudice, J.), dated November 9, 1993, which, after a nonjury trial, is in favor of the plaintiff and against him. 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 USC § 1962 [c]; see, United States v Turkette, 452 US 576; see also, H.J. Inc. v Northwestern Bell Tel. Co., 492 US 229; cf., Simpson Elec. Corp. v Leucadia, Inc., 72 NY2d 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 AD2d 80, 85-86, affd 50 NY2d 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 NY2d 400; Leon’s Collision Shop v Rian Realty, 211 AD2d 666). [460] There is no merit to the appellant’s remaining contentions. Copertino, J. P. Santucci, Altman and Krausman, JJ., concur.