Opinion
January 31, 1992
Appeal from the Supreme Court, Monroe County, Stander, J.
Present — Callahan, J.P., Doerr, Green, Balio and Lawton, JJ.
Order unanimously reversed on the law without costs, motion granted and fourth counterclaim dismissed. Memorandum: Plaintiff contends that defendants have failed to state a civil cause of action for damages under the Racketeer Influenced and Corrupt Organizations Act (RICO; 18 U.S.C. § 1961-1968) in the fourth counterclaim of their amended answer. We agree. Defendants assert in their amended answer that they contacted Delta Funding Corporation, a company related to plaintiff, to obtain a home equity loan. They allege that plaintiff induced them to borrow $15,000, an amount well beyond their ability to repay. It is further asserted that, at the closing, defendants received only $7,131.26 out of the $15,000 loan, with the remainder being paid to plaintiff, or its related company, for expenses. Defendants contend that plaintiff violated various financial disclosure requirements of the Truth-In-Lending Act, and that plaintiff engaged in deceptive acts and practices in contravention of General Business Law § 349.
Based on those facts, defendants, in their fourth counterclaim, assert a civil RICO claim against plaintiff. They allege, in a conclusory fashion, that plaintiff committed two or more predicate acts constituting a pattern of racketeering activity within the meaning of RICO, that plaintiff had participated in an enterprise that affected interstate commerce, and that defendants had sustained property damages as a result of plaintiff's RICO violations.
In order to sustain a civil RICO claim, a party is required to allege that the multiple predicates constitute a pattern of racketeering activity (see, H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 250). Further, to allege a pattern of racketeering activity, a party "must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity" (H.J. Inc. v. Northwestern Bell Tel. Co., supra, at 239). Here, defendants' pleading fails to satisfy those requirements. Because defendants' fourth counterclaim contains insufficient factual allegations to show a pattern of racketeering activity, it fails to state a civil RICO cause of action (see, H.J. Inc. v. Northwestern Bell Tel. Co., supra; Simpson Elec. Corp. v. Leucadia, Inc., 72 N.Y.2d 450).