MeehanCombs Worldwide Borrowing from the bank Possibilities Funds, LP v

MeehanCombs Worldwide Borrowing from the bank Possibilities Funds, LP v

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.

Brand new Plaintiff as well as alleges the Defendant’s imposition out-of “overdraft and you can came back goods costs produced entirely as a result of its celebrating off unlawful and you may unenforceable purchases on Illegal Payday loan” is “unconscionable policies and you can techniques

In this case, the latest Plaintiff alleges the Defendant violated their contractual duty so you can work when you look at the good-faith by harming their contractual discernment in order to techniques purchases and you may charges overdraft charges. New Plaintiff points to another provision of your own Account Agreement:

When the any time we think that your account can be at the mercy of abnormal, unauthorized, fraudulent, or unlawful hobby, we would, within discretion freeze the cash on account and in other profile you keep up with us, with no liability for you, until such as for example date even as we can done all of our study of one’s membership and deals.

Up against the Plaintiff’s contention, the fresh Judge finds that claim to have violation of your own covenant of great trust and reasonable coping was duplicative of the violation from offer allege. The reason being new so-called underlying products and you will make giving support to the violation regarding package allege – particularly, that the Offender honored ACH debits got its start by the illegal pay-day loan providers and you will analyzed overdraft and you may/otherwise came back goods fees because of this – underlies new Plaintiff’s allege for infraction of the covenant of great faith and reasonable dealing. For instance, the reality that the newest Plaintiff utilizes a specific supply off the new Account Agreement to support the allege getting infraction of the covenant of great faith and fair coping gives service on the Court’s achievement this particular allege is, actually, a violation off bargain allege because 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 latest Unconscionability Claim

Elizabeth.2d 713 (citations and quotation scratching 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. Look for Protector Life Ins. Co. away from Have always been. v. Freedom Riches 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 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, 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. New york Organ Donor Network, 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 Trust 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 at 50, 827 N.Y.S.2d 96, 860 N.

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