Alternatively, the Court notes that a breach of this implied covenant is „merely a breach of the underlying contract,“ not a separate cause of action. Caesars Entm’t Corp., No. 14-CV-7091 (SAS), 2015 WL 221055, at *4 (S.D.N.Y. )(citations and quotation marks omitted). „‘[I]f the allegations do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated.'“ Id.
The brand new Plaintiff including alleges that the Defendant’s imposition away from „overdraft and came back item fees made entirely as a result of the honoring of unlawful and unenforceable deals towards the Illegal Cash advance“ try „unconscionable procedures and you may strategies
In this instance, the fresh new Plaintiff alleges the Accused broken the contractual obligation so you’re able to work inside good faith by the abusing the contractual discretion so you’re able to procedure transactions and you may charges overdraft costs. Brand new Plaintiff points to another supply of your Membership Contract:
When the when we feel that your membership is subject to abnormal, unauthorized, fraudulent, or illegal passion, we could possibly, within our discretion freeze the amount of money regarding account along with most other accounts you continue around, without having any accountability for you, until such as for example day even as we can complete the investigation of membership and purchases.
Resistant to the Plaintiff’s assertion, the latest Court discovers that the claim having infraction of one’s covenant of great faith and you may fair coping is actually duplicative of violation off bargain claim. For the reason that new alleged hidden facts and conduct supporting the violation of deal claim – particularly, your Offender recognized ACH debits originated by the illegal pay day lenders and you may examined overdraft and you may/otherwise returned product costs as https://1hrtitleloans.com/title-loans-mi/ a result – underlies the fresh Plaintiff’s claim to possess infraction of your covenant of great trust and fair dealing. For instance, that the fresh new Plaintiff depends on a specific provision out of new Account Contract to help with their allege to possess violation of your covenant of great trust and fair coping gives service on the Court’s end this particular claim was, in reality, a violation of price claim from the several other name.
For these reasons, the Court dismisses the Plaintiff’s claim for breach of the covenant of good faith and fair dealing. D. Brand new Unconscionability Allege
Elizabeth.2d 713 (citations and you will offer scratching excluded)
“ (Compl., at ¶ 151 a-e). However, the Plaintiff’s attempt to convert the doctrine of unconscionability into an affirmative claim for relief must be rejected. Pick Protector Lifestyle In. Co. out of Are. v. Versatility Wide range Methods, LLC, No. 13-CV-2047 (JPO), 2014 WL 3715386, at *3 (S.D.N.Y. )(describing the doctrine of unconscionability under New York law as an affirmative defense); Knox v. Nationwide Bank, 4 F. Supp. 3d 499, 513 (E.D.N.Y. 2014)(dismissing a cause of action based on unconscionability); Ng v. HSBC Mortgage Corp., No. 07-CV5434 (RRM)(VVP), 2011 WL 3511296, at *8 (E.D.N.Y. ) („Under New York law, unconscionability is an affirmative defense to the enforcement of a contract . . . . A cause of action for unconscionability may not be used to seek affirmative relief.“); Tokio Marine v. Macready, 803 F. Supp. 2d 193, 199 (E.D.N.Y. 2011)(same). The single case relied upon by the Plaintiff, Bank account Overdraft Litig., 694 F. Supp. 2d 1302, 1318-19 (S.D. Fla. 2010)), did not apply New York law.
In New York, „[a] conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person’s right of possession.“ Colavito v. New york Organ Donor Community, Inc., 8 N.Y.3d 43, 49-50, 827 N.Y.S.2d 96, 860 N.E.2d 713 (2006). „Money, specifically identifiable and segregated, can be the subject of a conversion action.“ Firms Hanover Faith Co. v. Chem. Bank, 160 A.D.2d 113, 124, 559 N.Y.S.2d 704 (1st Dep’t 1990). A plaintiff need not show that he or she holds title to the property in question. He or she need only establish „(1) [a] possessory right or interest in the property; and (2) defendant’s dominion over the property or interference with it, in derogation of plaintiff’s rights.“ Colavito, 8 N.Y.3d at 50, 827 N.Y.S.2d 96, 860 N.