Appeal from an order of the District Court of Nassau County, First District (Gary F. Knobel, J.), entered March 26, 2007. The order, insofar as appealed from as limited by the brief, denied plaintiff's motion for summary judgment as against defendant Sharon Tompkin.

Order, insofar as appealed from, affirmed without costs.

In this action, it is undisputed that defendant Sharon Tompkin was an employee and officer of the corporate defendant, B & M Food Service, Inc. Defendant Tompkin arranged for the corporate defendant to purchase certain goods from plaintiff and
signed a B & M Food Service, Inc. check in the sum of $5,823.80 to pay for the goods. After the goods were shipped, the check was presented for payment and was dishonored due to "insufficient funds."

The corporate defendant failed to appear in the action, and plaintiff moved for summary judgment against Tompkin, claiming, in a conclusory manner, that the goods were sold as a result of a fraudulent misrepresentation, in that when Tompkin signed the check in payment of the "cash in advance" sale, she must have known that the corporate defendant was out of business or going out of business and that the check would not be honored. In our view, plaintiff's motion [*2]was properly denied since plaintiff failed to establish that it was entitled as a matter of law to judgment based on a theory of fraud (see generally Societe Generale Alsacienne De Banque, Zurich v Flemingdon Dev. Corp., 118 AD2d 769, 773 [1986]; A. Sam & Sons Produce Co. v Campese, 14 AD2d 487 [1961]).

Accordingly, the order, insofar as appealed from, denying plaintiff's motion for summary judgment as against defendant Tompkin is affirmed.

Rudolph, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: May 27, 2008