Cole v. Bennett Funding Group, Inc.

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.