NorGuard Insurance Company ("NorGuard"), the plaintiff in this action is an insurance carrier suing for the collection of alleged earned premium due. Defendant Apex Design and Construction Corp. ("Apex"), counter-claims under the federal Racketeer Influenced and Corrupt Organizations Act ("RICO," codified in 18 U.S.C. §§ 1961-1968) and for fraudulent billing practices. Plain-tiff moves to dismiss the counterclaims based upon documentary evidence and for failure to state a cause of action. Defendant opposes the motion and cross moves to amend the answer to assert the affirmative defense of lack of in personam jurisdiction and to dismiss the un-derlying action, pursuant to CPLR 3211(a)(8). Plaintiff NorGuard opposes the cross-motion.
Holding: The plaintiff's motion to dismiss the counterclaims is granted. The defendant's cross-motion to amend the answer to assert lack of in personam jurisdiction and to dismiss the complaint is denied.
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