Robert Ritchie et al are the respondents in the matter. The appellant in this case is Carvel Corporation. The case is being heard in the Supreme Court of the State of New York, Appellate Division, and Second Department.
The appellant is represented by Jeffery A. Klatzkow from Yonkers. The respondents are represented by Herzfield & Rubin, P.C. from New York City. David B. Hamm, Herbert Rubin, Linda M. Brown, and Peter Kurshan are acting as counsel for the respondents.
The case is being heard in front of Thompson, J.P., Balletta, Harwood, and Rosenblatt, JJ.
The defendant is appealing an order made by the Supreme Court from Westchester County that was entered on the first of May, 1990. The order denied the branches of cross motion made by the defendant to dismiss both the first and fifth causes of action that were asserted in the plaintiff’s case against the defendant.
Carvel Corporation, the defendant is a corporation incorporated in the state of Delaware. The principal place of business for the company takes place in Westchester County. The company sells ice cream as well as other frozen dessert products to the public through retail stores that are known as the Carvel Ice Cream Factories.
The plaintiffs entered into a licensing agreement with a distributor of Carvel’s products located in Arizona. After the business in Arizona failed the plaintiffs started an action in Federal Court in Arizona against the distributor and Carvel. The action that was against Carvel was moved to the United States District Court for the Southern District of New York. The United States District Court dismissed the complaint based on the motion made by Carvel. The plaintiffs began this action in the Supreme Court of the State of New York located in Westchester County.
The complaint made by the plaintiff alleges that there are causes of action based in fraud and breach of contract as well as violations of the Federal Racketeer Influenced and Corrupt Organizations Act. The criminal acts alleged by the plaintiffs consist of acts of mail fraud and wire fraud.
These particular acts were not pleaded with the particularities that are required by the Federal Rules of Civil Procedure for civil actions that are based on the Federal Racketeer Influenced and Corrupt Organizations Act.
Case Discussion and Determination
Fraudulent communications by wire or mail are charged as predicates for any RICO acts when the complaint follows specific rules. This includes what statements were made in the written documents and what omissions were made, the time and place that each statement was made and the content and manner in which the plaintiff was mislead.
The allegations of mail and wire fraud made by the plaintiff do not satisfy the pleading requirements for this case. However, in Arizona, the RICO version is much broader. In Arizona a plaintiff simply has to allege an injury that arose from a predicate act.
According to the RICO laws of Arizona, the fraudulent acts made by the plaintiff are chargeable and punishable. For this reason we find that the fifth cause of action that was made by the plaintiffs is sufficient to state a cause of action in the case.
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