Opinion
March 25, 1993
Appeal from the Supreme Court, New York County (Harold Tompkins, J.).
The seven elements constituting a RICO claim (see, Moss v Morgan Stanley 719 F.2d 5, 17, cert denied sub nom. Moss v Newman, 465 U.S. 1025) must be pleaded with particularity (Dow v Meyers, 182 A.D.2d 1128, 1129). This plaintiffs failed to do with respect to their claim of violation of section 10 (b) of the Securities Exchange Act of 1934 ( 15 U.S.C. § 78j [b]; see, Ernst Ernst v. Hochfelder, 425 U.S. 185), and thus no predicate act sufficient to support a RICO claim was shown. We also agree with the IAS Court that plaintiffs failed to allege the requisite continuity of racketeering activity (see, Airlines Reporting Corp. v. Aero Voyagers, 721 F. Supp. 579, 584-585), and that the claim for common law fraud was not pleaded with sufficient particularity (CPLR 3016 [b]; (see, Flickinger v. Brown Co., 947 F.2d 595, 599). The amendments plaintiffs proposed for breach of fiduciary duty were properly denied as plainly without merit since a broker does not, in the ordinary course of business, owe a fiduciary duty to a purchaser of securities (see, Rush v Oppenheimer Co., 681 F. Supp. 1045, 1055).
Concur — Sullivan, J.P., Milonas, Ross, Kassal and Rubin, JJ.