Cole v. Bennett Funding Group, Inc.

159 A.D.2d 965

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 16, 1990
• Status: Published

Opinion

Order unanimously affirmed without costs. Memorandum: We affirm the order, essentially for the reasons stated in the decision of Supreme Court; however, two issues merit brief discussion. We find that plaintiffs’ eighth cause of action, alleging violations of Racketeer Influenced and Corrupt Organizations Act (RICO; 18 USC § 1961 et seq.), was properly dismissed because the allegations fail to establish "a series of related predicates extending over a substantial period of time” (H.J. Inc. v Northwestern Bell Tel. Co., 492 US —, —, 109 S Ct 2893, 2902). Moreover, plaintiffs failed to identify an enterprise (see, Otto v Variable Annuity Life Ins. Co., 814 F2d 1127, cert denied 486 US 1026), and failed to allege facts sufficient to demonstrate that such enterprise was engaged in or affected interstate commerce (see, Riverbay Corp. v Steiner, 144 Mise 2d 530, 541).

We further determine that the court correctly dismissed plaintiffs’ thirteenth and fourteenth causes of action alleging that defendants violated article 6 of the Uniform Commercial Code because plaintiffs are not entitled to indemnification based upon an implied contract until plaintiffs’ liability to a secured creditor is established (see, Martinez v Fiore, 90 AD2d 483). (Appeals from order of Supreme Court, Onondaga County, Reagan, J. — dismiss causes of action.) Present — Callahan, J. P., Doerr, Green, Pine and Lawton, JJ.