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 https://samedaycashloans.org/title-loans-ca/ 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 new Plaintiff together with alleges your Defendant’s imposition away from “overdraft and you can returned items charges generated solely as a result of the remembering out-of unlawful and unenforceable purchases toward Illegal Cash advance” is “unconscionable guidelines and you may means

In this case, the new Plaintiff alleges that Defendant violated their contractual responsibility to operate from inside the good faith because of the abusing its contractual discretion in order to process deals and you can charge overdraft fees. The Plaintiff what to the following provision of your own Membership Contract:

If when we believe your account tends to be susceptible to irregular, not authorized, fraudulent, or illegal craft, we would, inside our discretion frost the income throughout the membership along with most other accounts you continue with our team, without the liability to you, up to including day even as we can complete all of our analysis of your own account and you will transactions.

Up against the Plaintiff’s contention, the brand new Legal finds your claim to own violation of the covenant of good believe and reasonable coping is actually duplicative of violation regarding bargain allege. The reason being the latest so-called underlying circumstances and you may carry out giving support to the violation away from bargain allege – specifically, that Defendant honored ACH debits began by unlawful pay-day lenders and you can analyzed overdraft and/or came back items fees thus – underlies this new Plaintiff’s claim getting violation of covenant of great faith and you may reasonable dealing. For instance, the truth that new Plaintiff utilizes a certain provision away from the newest Membership Contract to help with their allege to have infraction of one’s covenant of great faith and you may reasonable coping gives help toward Court’s achievement that the allege is actually, indeed, a breach regarding 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. The fresh Unconscionability Allege

Age.2d 713 (citations and you will quote 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. See Guardian Life In. Co. off Have always been. v. Liberty Wealth 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 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 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. Nyc Body 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.” Makers 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.