OPINION OF THE COURT
These are cross appeals from a judgment after a nonjury trial in this action to rescind a mortgage on the ground of fraud and conspiracy. The plaintiff appeals so much of the judgment that implicitly denied its motion to conform its pleadings to its proof to assert a claim of mutual mistake and that dismissed the action against the defendant Hirschfeld. The defendant State Street Garage Corp. (State Street) appeals from so much of the judgment that failed to dismiss the action against it, that adjudged that the plaintiff’s loan to it of $1,500,000 secured by a mortgage be
On October 12, 1971, Hirschfeld, widely experienced in the specialized field of building parking garages, leased for 12 years a yet-to-be-built garage to APCOA, a division of a nationwide operator of parking garages. By the lease, the garage was to contain “parking space for at least 528 standard-sized American made passenger cars on an attendant-park basis”, with the proviso that if it did not contain 475 spaces the lessee could cancel. APCOA’s rent was tied to its gross receipts.
On August 10, 1972, Hirschfeld applied to the plaintiff for a loan of $1,500,000 to be secured by a mortgage on the garage. The application stated that the garage had 500 parking spaces. It listed APCOA, which the plaintiff knew was an experienced garage operator, as the major source of income from the property, and described Hirschfeld himself as the owner of over 20 parking garages in New York City. The plaintiff’s independent appraiser valued the property at $2,115,000. It arrived at this figure by capitalizing the expected income, concerning which the appraisal stated, “[all] projections are predicated on 500 attended parking spaces as reported by the garage owner”. The loan was approved under an arrangement whereby Hirschfeld was first to transfer the property to a corporation, the defendant State Street of which he is the president and sole stockholder. On December 21, 1972, the mortgage was closed with State Street which assigned all the leases to the plaintiff.
In 1974, the United States District Court granted APCOA a judgment terminating its lease on the ground that Hirschfeld had failed to provide the requisite number of parking spaces. The court found that the garage was able to accommodate but 402 cars. The judgment was affirmed on appeal. The plaintiff here then commenced an action to foreclose its mortgage. This has been stayed pending the determination of the instant action. Sine 1975, the plaintiff has occupied the parking garage, running it through another operator.
At the end of the plaintiff’s case at trial, it moved to conform its pleadings to the proof to seek rescission on the ground of mutual mistake. The court reserved decision and the defendants rested without presenting any testimony. In its decision, the court held that granting the motion to conform to assert this new cause of action would prejudice defendants who had, over the six years since the commencement of the action, prepared a defense only to fraud and conspiracy. The court, however, did find that a liberal construction of the plaintiff’s pleadings established a cause of action for rescission on the ground of innocent misrepresentation. It held that the proof warranted judgment for the plaintiff on that cause of action: that Hirschfeld misrepresented that there were at least 475 parking spaces directly on the mortgage application and indirectly by way of the APCOA lease; that the representation was material and that it was justifiably relied upon because the capacity of an attended parking garage is a matter of expert judgment, with Hirschfeld being an expert; that, given these circumstances, the plaintiff was not required to hire an expert of its own.
The plaintiff asserts that by dismissing the action against Hirschfeld the court limited the relief to which it was entitled as a matter of equity. It was the plaintiff, however, who acceded to Hirschfeld being supplanted by a corporation, the defendant State Street. The plaintiff accepted the corporation’s note and a mortgage on its property. The corporate veil may be pierced where it is used to cloak illegality (see Jenkins v Moyse, 254 NY 319), but the corporate form was not used here for an illicit purpose. It was used in a legal fashion to accomplish a result sought by all of the parties.
While the plaintiff’s notice of appeal raises the trial court’s denial of its claim of mutual mistake, the point has apparently been abandoned, not having been asserted in the brief which, on this score, maintains only that there was sufficient evidence to support either mutual mistake or innocent misrepresentation. Whether or not the disallowance of mutual mistake was error, the trial court properly construed the pleadings to allow a claim of innocent misrepresentation. There was a time when plaintiffs were .limited by whatever theory of recovery was stated in their complaint, e.g., “[a] party must recover not only according to his proofs but according to his pleadings” (Walrath v Hanover Fire Ins. Co., 216 NY 220, 225). That day has passed. We are not enjoined to “grant any type of relief within [our] jurisdiction appropriate to the proof whether or not demanded, imposing such terms as may be just” (CPLR 3017, subd [a]).
If we subtract from fraud the element of scienter, the remainder constitutes the tort of innocent misrepresentation (Emerson Elec. Mfg. Co. v Printed Motors, 252 NYS2d 600, 607). We can, therefore, find no prejudice to the defendants when they knew or should have known for six years prior to the trial that the claim of fraud confronting them charged also those elements adding to innocent misrepresentation. The defendants claim prejudice in that they would not have rested after the plaintiff’s case if they had known that they would be faced with a different theory of recovery since they rested secure in the knowledge that the plaintiff had failed to prove one element of fraud, scienter. This claim is easily disproved. When the defendants rested without offering testimony, the trial court had
The trial court properly concluded that the plaintiff proved innocent misrepresentation: the misrepresentation by the defendants of a material fact made to induce the plaintiff to enter into the mortgage agreement and upon which the plaintiff justifiably relied (see Emerson Elec. Mfg. Co. v Printed Motors, supra, pp 607, 608).
The dissent would hold that the plaintiff’s case must fail because the trial court found that the determination of the number of parking spaces in a given area is a matter of judgment or opinion. It would hold that because “statements of opinion are treated differently” they must necessarily be unactionable. Assuming without conceding that the representation on the mortgage application that the garage had 500 parking spaces was a statement of opinion rather than of a fact (or an opinion stated as a fact), it is nonetheless actionable, as in certain circumstances, expressions of opinion have long been held to be in New York (see Gray v Richmond Bicycle Co., 167 NY 348; Hickey v Morrell, 102 NY 454; Taylor v Burr Print. Co., 26 F2d 331, 334).
Magnaleasing, Inc. v Staten Is. Mall (428 F Supp 1039, affd 563 F2d 567) draws the distinction between expressions of opinion that are actionable and those that are not (428 F Supp, at pp 1042-1043): “Mere predictions, however, may not form the basis for an action for fraud when both parties have equal access to the facts, or when it is obvious that the declarant is using a subjective standard. In these situations, reliance on the opinions is deemed unreasonable. However, where one party does have superior knowledge, the expression of an opinion implies that the declarant knows facts which support that opinion and that he knows nothing which contradicts the statement”. If Hirschfeld’s representation be deemed an opinion, his superior knowledge of parking garages in general and this
We cannot agree with the defendant State Street’s contention, approved by the dissent, that the plaintiff did not rely on Hirschfeld’s representation, or the APCOA lease, for the reason that it refused to make the loan without an independent appraisal. This argument overlooks the fact that the independent appraisal projected rental income from the garage “predicated on 500 attended parking places as reported by the garage operator” (underscoring added). Thus, the basis for the appraisal was the same representation of Hirschfeld, this time given to and passed along by APCOA, which later found it to be untrue and proved it to the Federal court.
The plaintiff was justified in relying on Hirschfeld’s representation. In so holding, we do not quarrel with the citations of the dissent and the general rule for which they stand. But the general rule, quoted by the dissent from Schumaker v Mather (133 NY 590) is attended by a number of exceptions (see 24 NY Jur, Fraud and Deceit, § 168). One of them is applicable here. Stated in terms of this action: when the plaintiff is possessed of a knowledge of parking garages unequal to Hirschfeld’s knowledge and is prevented from reasonably ascertaining the truth by a tortious condition for which Hirschfeld must be held responsible, the plaintiff is justified in relying on the representation (Schumaker v Mather, supra; Kaston v Zimmerman, 192 App Div 511; Carney v Morrison, 223 App Div 244; see, also, 12 Williston, Contracts [3d ed], § 1515B, p 486). The plaintiff exercised “ordinary intelligence” by hiring an independent appraiser who in turn exercised ordinary intelligence by going to the operator of the garage to ascertain the number of parking spaces. The appraiser had no reason to suspect that the operator had been misled by Hirschfeld in the same fashion as had the plaintiff.
The trial court held that the defendants were collaterally estopped by the Federal court judgment from challenging the insufficiency of the number of parking spaces and in so doing found that Hirschfeld’s representation to the plaintiff was false. The number of parking spaces was in issue in the Federal court. The question here — whether
Judgment (denominated counterjudgment), Supreme Court, New York County, entered on June 11,1982 after a nonjury trial (before Martin B. Stecher, J.), which implicitly denied plaintiff’s motion to conform its pleadings to the proof, dismissed the action with prejudice as to defendant Hirschfeld, adjudged that a loan in the principal amount of $1,500,000 secured by the mortgage dated December 21, 1972 be rescinded, and adjudged that an accounting be had to determine the sum to be paid by defendant State Street to plaintiff to effect the rescission of the mortgage agreement, should be affirmed, with costs and disbursements to plaintiff.