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.
New Plaintiff and alleges the Defendant’s imposition off “overdraft and returned product costs generated entirely down to their celebrating of unlawful and you may unenforceable transactions on Unlawful Payday loans” try “unconscionable policies and you will means
In cases like this, new Plaintiff alleges the Accused broken their contractual responsibility so you can act for the good-faith by abusing its contractual discretion so you’re able to process deals and you may fees overdraft charge. The latest Plaintiff things to the second provision of your own Membership Agreement:
When the anytime we feel that account is generally subject to irregular, not authorized, fraudulent, otherwise illegal pastime, we may, within our discretion frost the money regarding the account and also in almost every other levels you keep up around, without any accountability to you, up to instance time while we can done all of our investigation of one’s account and deals.
Resistant to the Plaintiff’s contention, the fresh Legal discovers the claim having violation of your own covenant of great trust and you will fair coping try duplicative of breach off price allege. This is because the fresh alleged fundamental products and you may perform supporting the violation from package allege – particularly, that the Defendant recognized ACH debits originated from the unlawful payday lenders and assessed overdraft and you will/or came back item charges as a result – underlies the newest Plaintiff’s allege to possess violation of the covenant of good believe and you will reasonable dealing. Even, the point that the fresh Plaintiff hinges on a particular supply out of the latest Membership Contract to help with the allege having violation of covenant of great faith and you may reasonable dealing lends assistance into the Court’s end that the allege is, actually, a breach off deal allege of the several other title.
For these reasons, the Court dismisses the Plaintiff’s claim for breach of the covenant of good faith and fair dealing. D. The brand new Unconscionability Claim
Elizabeth.2d 713 (citations and you may quotation scratches 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 Lifetime Inches. Co. off Have always been. v. Liberty Money Procedures, 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 Aquatic 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. 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.” Providers Hanover Faith Co. v. Chem. Financial, 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 Alabama title loans laws 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.