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 fresh Plaintiff and alleges the Defendant’s imposition regarding “overdraft and came back item costs made solely as a result of the remembering out-of unlawful and unenforceable purchases on Illegal Payday loan” is actually “unconscionable guidelines and techniques
In this situation, new Plaintiff alleges your Accused broken their contractual responsibility in order to work inside good-faith by the abusing its contractual discernment to help you procedure deals and you can charges overdraft charge. The Plaintiff items to the following supply of your own Membership Arrangement:
In the event that any moment we feel that your particular membership can be at the mercy of unusual, not authorized, fraudulent, or unlawful craft, we may, within our discretion freeze the amount of money throughout the membership as well as in other membership you keep up with our team, without any responsibility to you, up to particularly time once we are able to complete all of our data of your own membership and you may transactions.
Contrary to the Plaintiff’s assertion, new Courtroom discovers the claim getting infraction of your own covenant of great trust and reasonable coping is actually duplicative of violation from deal claim. Simply because the fresh so-called fundamental items and you may carry out supporting the infraction regarding bargain claim – particularly, your Defendant recognized ACH debits began because of the illegal pay check loan providers and you will assessed overdraft and you will/otherwise returned item fees consequently – underlies the new Plaintiff’s claim getting infraction of the covenant of good trust and you will reasonable coping. Even, the truth that the latest Plaintiff relies on a certain supply away from the brand new Account Contract to help with the claim to have infraction of your covenant of great faith and reasonable dealing lends help towards the Court’s conclusion that this allege is actually, in fact, a breach away from offer allege because of the another label.
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
Age.2d 713 (citations and you may quotation 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 Protector Lifetime Ins. Co. regarding In the morning. v. Independence Wealth 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 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 https://paydayloansexpert.com/payday-loans-ak/ 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, Checking 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. Nyc 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.” 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.