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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 Wyoming motorcycle title loans actually stated.'” Id.
The fresh Plaintiff plus alleges your Defendant’s imposition off “overdraft and you will returned item charge made entirely right down to its celebrating out of unlawful and you can unenforceable deals toward Unlawful Cash advance” try “unconscionable formula and you may methods
In cases like this, this new Plaintiff alleges that Offender broken their contractual obligations in order to work in the good faith from the abusing their contractual discernment so you can processes deals and you can costs overdraft fees. The new Plaintiff things to the following provision of one’s Membership Arrangement:
In the event that when we believe that account tends to be subject to abnormal, not authorized, deceptive, otherwise illegal activity, we could possibly, within our discretion frost the cash about account and also in almost every other membership you maintain around, with no liability for you, up to for example day while we are able to complete our very own investigation of membership and you may transactions.
From the Plaintiff’s contention, this new Courtroom discovers that allege to own infraction of covenant of good trust and you will reasonable dealing is actually duplicative of your own infraction of package allege. For the reason that the brand new so-called underlying things and you will make giving support to the violation from bargain claim – particularly, that the Defendant honored ACH debits originated by unlawful pay day lenders and reviewed overdraft and you may/or returned product charge because of this – underlies the latest Plaintiff’s allege getting breach of your covenant of good trust and you will fair dealing. For that matter, the truth that this new Plaintiff depends on a specific provision away from the latest Account Agreement to help with their claim having infraction of covenant of good faith and you may reasonable dealing lends service on the Court’s achievement that the allege was, indeed, a violation away from price claim by other name.
For these reasons, the Court dismisses the Plaintiff’s claim for breach of the covenant of good faith and fair dealing. D. This new Unconscionability Allege
Age.2d 713 (citations and you will quote marks 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. Look for Guardian Lives Ins. Co. out of Was. v. Freedom Money Strategies, 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. Countrywide Bank, 4 F. Supp. 3d 499, 513 (E.D.N.Y. 2014)(dismissing a cause of action based on unconscionability); Ng v. HSBC Home loan 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, Family savings 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. Ny 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.” Manufacturers Hanover Believe Co. v. Chem. Lender, 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.
