New York Mortgage Servicing Corp. v. Dake

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 US 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 NY2d 450). (Appeal from Order of Supreme Court, Monroe County, Stander, J. — Dismiss Counterclaim.) Present — Callahan, J. P., Doerr, Green, Balio and Lawton, JJ.