MeehanCombs Global Credit Solutions Fund, LP v

MeehanCombs Global Credit Solutions Fund, 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 Kentucky quick cash near me stated.'” Id.

New Plaintiff also alleges that the Defendant’s imposition from “overdraft and you may came back items costs produced exclusively as a result of their celebrating from illegal and you may unenforceable purchases into Illegal Payday loan” try “unconscionable policies and you can means

In this situation, the brand new Plaintiff alleges your Accused violated its contractual obligations to help you act in good-faith of the harming its contractual discernment in order to techniques transactions and you may charges overdraft charges. The brand new Plaintiff factors to another provision of your own Account Arrangement:

If the any moment we think that account could be subject to unpredictable, not authorized, fake, or illegal hobby, we may, within our discernment frost the amount of money on membership and in almost every other profile you continue around, without the accountability to you personally, up until including time once we can done the study of your own account and you will deals.

Resistant to the Plaintiff’s contention, the Legal discovers the claim to own breach of the covenant of good trust and you can reasonable coping is actually duplicative of one’s infraction off deal allege. It is because the fresh so-called underlying affairs and you may run giving support to the violation regarding deal allege – particularly, the Accused recognized ACH debits started because of the unlawful pay day loan providers and reviewed overdraft and you will/otherwise returned items charge as a result – underlies the brand new Plaintiff’s allege getting violation of your own covenant of great believe and you will reasonable coping. For example, the reality that the Plaintiff utilizes a particular supply out-of the brand new Membership Agreement to help with their allege having violation of the covenant of good faith and you can reasonable coping gives service with the Court’s end that the allege was, in fact, a violation away from package claim of the another term.

For these reasons, the Court dismisses the Plaintiff’s claim for breach of the covenant of good faith and fair dealing. D. New Unconscionability Allege

E.2d 713 (citations and offer 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. Get a hold of Protector Existence Ins. Co. out of Am. v. Independence Money Steps, 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 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 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 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. 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 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.

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