At page 433 Modifying dismissal of contract and good faith claims6 citing casesOrder, Supreme Court, New York County (Barbara R. Kapnick, J.), entered April 4, 2011, which, insofar as appealed from as limited by the briefs, granted…
- Brembo, S.P.A. v. T.A.W. Performance LLC, 176 A.D.3d 535 (N.Y. App. Div. 1st Dep't 2019).publishedThe fraudulent inducement and breach of the covenant of good faith and fair dealing counterclaims are duplicative of the counterclaim for breach of the written distributor agreement ( see Krantz v Chateau Stores of Canada , 256 AD2d 186, 1…
- Tozzi v. Mack, 2019 NY Slip Op 1308 (N.Y. App. Div. 1st Dep't 2019).publishedThe remaining causes of action for unjust enrichment and breach of fiduciary duty were correctly dismissed as duplicative of the first cause of action for invalid commission "since both claims arise from the same facts and seek the identic…
- Catlyn & Derzee, Inc. v. Amedore Land Developers, LLC, 87 N.Y.S.3d 661 (N.Y. App. Div. 3d Dep't 2018).publishedCo. , 87 NY2d 308, 319-320 [1995]; New York State Workers' Compensation Bd. v Fuller & LaFiura, CPAs, P.C. , 146 AD3d 1110, 1113 [2017]; Netologic, Inc. v Goldman Sachs Group, Inc. , 110 AD3d 433, 433-434 [2013]).
- Lefkara Grp., LLC v. First Am. Int'l Bank, 150 A.D.3d 450 (N.Y. App. Div. 1st Dep't 2017).publishedAccordingly, the motion court correctly dismissed the breach of contract claim and the duplicative claim for breach of the covenant of good faith and fair dealing (see Netologic, Inc. v Goldman Sachs Group, Inc., 110 AD3d 433, 433-434 [1st…
- New York State Workers' Comp. Bd. v. Fuller & LaFiura, CPAs, P.C., 146 A.D.3d 1110 (N.Y. App. Div. 3d Dep't 2017).publishedTrust v Recco Home Care Servs., Inc., 141 AD3d 792, 794 [2016] [internal quotation marks, brackets and citation omitted]; see Edem v Grandbelle Intl., Inc., 118 AD3d 848 , 849 [2014]; Netologic, Inc. v Goldman Sachs Group, Inc., 110 AD3d 4…
- Whitecap (US) Fund I, LP v. Siemens First Capital Com. Fin. LLC, 121 A.D.3d 584 (N.Y. App. Div. 1st Dep't 2014).publishedThe seventh cause of action, alleging breach of the implied duty of good faith and fair dealing directly against Siemens, duplicates the sixth cause of action (see Netologic, Inc. v Goldman Sachs Group, Inc., 110 AD3d 433, 433-434 [1st Dep…
dismissing implied covenant claim as duplicative of breach of contract claims “since both claims arise from the same facts and seek identical damages for each alleged breach” (internal quotation marks and citation omitted)
- Violet Realty, Inc. v. Affiliated FM Ins. Co., 267 F. Supp. 3d 384 (W.D.N.Y. 2017).published(dismissing implied covenant claim as duplicative of breach of contract claims “since both claims arise from the same facts and seek identical damages for each alleged breach” (internal quotation marks and citation omitt…)
- Fero v. Excellus Health Plain, Inc., 236 F. Supp. 3d 735 (W.D.N.Y. 2017).published (dismissing implied covenant claim as duplicative of breach of contract claims “since both claims arise from the same facts and seek identical damages for each alleged breach” (internal quotation marks and citation omitt…)
- Int'l Tech. Mktg., Inc. v. Verint Sys., Ltd., 157 F. Supp. 3d 352 (S.D.N.Y. 2016).published (dismissing implied covenant claims as duplicative of breach of contract claims “since both claims arise from the same facts and seek identical damages for each alleged breach” (internal quotation marks and citation omit…)
Other citing cases
- Student Advantage Fund I LLC v. Kennedy Lewis Mgmt. LP, No. 1:19-cv-02401 (S.D.N.Y. Nov. 18, 2019).
- TiVo Inc. v. Goldwasser, 560 F. App'x 15 (2d Cir. 2014).unpublished
v.
Goldman Sachs Group, Inc., and Wall Street on Demand, Inc.
Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered April 4, 2011, which, insofar as appealed from as limited by the briefs, granted defendants’ motion to dismiss the complaint to the extent of dismissing the claims for breach of contract, unjust enrichment, and breach of confidentiality, and denied the motion as to the claim for breach of the implied covenant of good faith and fair dealing, unanimously modified, on the law, to reinstate the causes of action for breach of contract and dismiss the claim for breach of the implied covenant of good faith and fair dealing, and otherwise affirmed, without costs.
Plaintiffs second cause of action should be reinstated to the extent that it sounds in breach of contract, since plaintiff has sufficiently pled that defendant Goldman Sachs Group, Inc. (Goldman) breached its duty under the parties’ licensing and distribution agreement (LDA) to engage in “commercially reasonable efforts” to sell plaintiff’s product to Goldman’s own customers (see JFK Holding Co. LLC v City of New York, 98 AD3d 273, 276-278 [1st Dept 2012]). Plaintiff has likewise sufficiently pleaded that Goldman breached the LDA’s confidentiality provisions, warranting reinstatement of that claim.
Plaintiffs claim for breach of the implied covenant of good[*434] faith and fair dealing, however, should be dismissed as duplicative of its contract claims, since both claims “arise from the same facts and seek the identical damages for each alleged breach” (Amcan Holdings, Inc. v Canadian Imperial Bank of Commerce, 70 AD3d 423, 426 [1st Dept 2010] [citation omitted], lv denied 15 NY3d 704 [2010]).
The motion court properly dismissed plaintiffs cause of action for unjust enrichment, as duplicative of its claims for breach of contract (see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382 [1987]). Concur — Andrias, J.P., Sweeny, Acosta, Saxe and Clark, JJ.