MEMORANDUM AND ORDER Plaintiff Grace International Assembly of God (“Plaintiff” or “Grace”) commenced this case against defendants Gennaro Festa (“Festa”) and Falcon General Construction Services, Inc. (“Falcon”) (collectively, “Defendants”) asserting claims against Festa pursuant to the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §1961 et seq., against Falcon for breach of contract and negligence under state law, and against both Defendants for fraud and breach of trust under state law. Defendants have moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Motion, Docket Entry (“DE”) [25]. Plaintiff opposes the motion. For the reasons set forth below, the motion is granted, and the case dismissed.I. BACKGROUNDA. Factual BackgroundThe following facts are taken from the amended complaint (“Am. Compl.”), DE [22], and are assumed to be true for purposes of this motion. In addition, various documents have been incorporated by reference in, and attached to, the amended complaint including: a contract dated May 19, 2014, (the “Contract”), DE [22-1], and; eleven (11) documents entitled “Application and Certification for Payment” (“A&C”), numbered one (1) through eleven (11) and dated periodically from August 1, 2015 to August 19, 2016. DE [22-2 & 22-3].Grace is a New York religious corporation that maintains a place of worship at 172 Willis Avenue, Mineola, New York (the “Premises”). Am. Compl. 1. Falcon, a general construction contractor, is a New York corporation, and Festa is the President and sole shareholder of Falcon. Id.
3-5. Prior to 2014, the church located on the Premises consisted of two attached buildings: the sanctuary and a fellowship hall. Id. 8. In or about February 2014, Falcon agreed to act as general contractor on a project (the “Project”) to: (1) refurbish the existing sanctuary, which was to become the fellowship hall; and (2) demolish the existing fellowship hall and build a new sanctuary in its place. Id. 9.On or about February 4, 2014, Festa met with Grace’s governing Council and its minister, Pastor Wilson. Am. Compl. 18. During that meeting Festa represented that steel shop drawings (“Steel Shop Drawings”) would be prepared by American Buildings Company (“ABC”), a Georgia company that would also provide prefabricated steel. Id. 18. The Steel Shop Drawings would be ordered from ABC by American Building Services of New York, Inc. (“ABS”), an entity that the Amended Complaint refers to alternatively as either “an agent of Falcon’s,” id. 18(b), or “Festa’s agent.” Id.
