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.
This new Plaintiff and alleges that Defendant’s imposition regarding “overdraft and you will returned items fees generated exclusively as a result of the remembering of illegal and you will unenforceable purchases towards the Unlawful Payday loan” is “unconscionable rules and you can means
In cases like this, the brand new Plaintiff alleges the Defendant broken its contractual duty to https://paydayloansexpert.com/payday-loans-ne/ help you operate during the good faith from the harming its contractual discernment in order to process deals and fees overdraft charge. The newest Plaintiff items to the second supply of the Membership Arrangement:
If when we believe your account is subject to unpredictable, unauthorized, deceptive, or unlawful activity, we may, in our discernment freeze money on membership as well as in almost every other levels you continue with us, without any liability for you, until like time once we have the ability to over our very own study of your account and you will transactions.
Resistant to the Plaintiff’s contention, new Judge finds that the claim getting violation of covenant of good believe and fair coping was duplicative of the violation from contract claim. This is because the latest alleged hidden circumstances and carry out supporting the infraction away from deal allege – specifically, the Offender recognized ACH debits began of the unlawful payday lenders and you can assessed overdraft and you may/or returned goods charge this is why – underlies brand new Plaintiff’s allege having infraction of the covenant of good believe and you can reasonable dealing. For instance, the truth that the Plaintiff utilizes a particular supply from the fresh Account Arrangement to support its allege for infraction of the covenant of good faith and reasonable coping lends assistance on the Court’s achievement this allege was, in fact, a breach out of price claim because of the other name.
For these reasons, the Court dismisses the Plaintiff’s claim for breach of the covenant of good faith and fair dealing. D. The newest Unconscionability Claim
Elizabeth.2d 713 (citations and offer scratches omitted)
” (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. Come across Guardian Lifestyle Ins. Co. of In the morning. v. Versatility Wide range Actions, 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 Financial 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. Ny Body organ Donor Circle, 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.” Producers Hanover Trust 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.