Allstate Ins. Co. v Buziashvili

Allstate Ins. Co. v Buziashvili 2008 NY Slip Op 02628 [49 AD3d 423] March 20, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 14, 2008

Allstate Insurance Company et al., Appellants,
v
Alex Buziashvili et al., Defendants, and Moshe Fuld, Esq., et al., Respondents.

—[*1] Stern & Montana, LLP, New York City (Sandra Patricia Burgos of counsel), for appellants.

Hoffman, Polland & Furman, PLLC, New York City (Mark L. Furman of counsel), for respondents.

Order, Supreme Court, New York County (Helen E. Freedman, J.), entered June 28, 2005, which, insofar as appealed from as limited by the briefs, granted the Fuld defendants' motion to dismiss the complaint as against them, unanimously affirmed, with costs.

In support of their claim for violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), plaintiffs failed to set forth nonconclusory allegations that the attorney Fuld defendants participated in the "operation or management" of the allegedly corrupt enterprise (see Reves v Ernst & Young, 507 US 170, 179, 182-185 [1993]; cf. Jinaran Land Corp. v Shahbazi, 247 AD2d 263 [1998]). Because the substantive RICO claim was deficient, so was the conspiracy claim (Crab House of Douglaston, Inc. v Newsday, Inc., 418 F Supp 2d 193, 212 [2006]; see generally Small v Lorillard Tobacco Co., 94 NY2d 43, 57 [1999]). Furthermore, dismissal of the common-law fraud cause of action was proper, where plaintiffs failed to sufficiently allege false representations or omissions by the Fuld defendants (id.; see CPLR 3016 [b]); plaintiffs no longer challenge the dismissal of their General Business Law § 349 claim; and in view of the foregoing, plaintiffs' cause of action for injunctive relief as against the Fuld defendants must fail. [*2]

We have considered plaintiffs' remaining arguments and find them unavailing. Concur—Lippman, P.J., Andrias, Nardelli, Buckley and Acosta, JJ.