But she too fails to state a claim for breach of contract because she points to no contractual provision, either written or verbal, aside from reiterating the alleged general warranty made by Danze, that the company allegedly breached. See, e.g., Salomon v. Citigroup Inc., 123 A.D.3d 517, 517 (N.Y. App. Div. 2014) (dismissing breach-of-contract claim "predicated upon an alleged implied warranty" that "has no support in the language" of an actual contract). Plaintiffs make no effort to argue otherwise or defend against dismissal of Zisser's contract claim in their response brief.
NWM Capital, LLC v. Scharfman, 168 A.D.3d 624, 91 N.Y.S.3d 428 [1st Dept. 2019] ). The court properly dismissed the implied covenant of good faith and fair dealing claim under the purchase agreement, as duplicative of the express contract claim ( Salomon v. Citigroup Inc., 123 A.D.3d 517, 518, 999 N.Y.S.2d 21 [1st Dept. 2014] ). However, the implied covenant claim as to the side letter was not duplicative, because there is no "no bad faith action" clause in the side letter.
NWM Capital, LLC v Scharfman, 168 A.D.3d 624 [1st Dept 2019]). The court properly dismissed the implied covenant of good faith and fair dealing claim under the purchase agreement, as duplicative of the express contract claim (Salomon v Citigroup Inc., 123 A.D.3d 517, 518 [1st Dept 2014]). However, the implied covenant claim as to the side letter was not duplicative, because there is no "no bad faith action" clause in the side letter.
To establish an implied covenant claim, a plaintiff must allege that "a party to a contract acts in a manner that, although not expressly forbidden by any contractual provision, would deprive the other party of the right to receive the benefits under their agreement" (see Jaffe v Paramount Communications, 222 A.D.2d 17, 22 [1st Dept 1996]). But where an implied covenant claim is predicated on essentially the same allegations as a breach of contract claim and seeks the same damages, dismissal is warranted (see Salomon v Citigroup Inc., 123 A.D.3d 517, 518 [1st Dept 2014]).
The second cause of action alleges a breach of the Implied Covenant of good faith and fair dealing. That cause of action is duplicative of the breach of contract claim (Salamon v. Citigroup Inc,, 123 A.D.3d 517, 999 N.Y.S.2d 21 [1st Dept., 2014]). Thus, the motion seeking to dismiss that cause of action as to all defendants is granted.
To establish a claim for breach of the implied covenant of good faith and fair dealing, a plaintiff must allege that the defendant sought to prevent performance of the contract or to withhold its benefits from the plaintiff (see Jaffe v. Paramount Communications, 222 A.D.2d 17, 22 [1st Dept 1996]). But where an implied covenant claim is predicated on essentially the same allegations as a breach of contract claim and seeks the same damages, dismissal is warranted (see Salomon v Citigroup Inc., 123 A.D.3d 517, 518 [1st Dept 2014]). That is exactly the case here.
Where a claim for breach of the implied covenant of good faith and fair dealing is predicated on the exact same allegations as a breach-of-contract claim and seeks the exact same damages, dismissal is warranted (see Salomon v Citigroup Inc., 123 A.D.3d 517, 518 [1st Dept 2014]). Here, the allegations and damages underlying Newage's breach-of-contract claim are the exact same as those underlying its claim for breach of the implied covenant of good faith dealing.
NWM Capital, LLC v Scharfman, 168 A.D.3d 624 [1st Dept 2019]). The court properly dismissed the implied covenant of good faith and fair dealing claim under the purchase agreement, as duplicative of the express contract claim (Salomon v Citigroup Inc., 123 A.D.3d 517, 518 [1st Dept 2014]). However, the implied covenant claim as to the side letter was not duplicative, because there is no "no bad faith action" clause in the side letter.
Defendant states the fifth cause of action, breach of implied covenant of good faith and fair dealing must be dismissed as duplicative of their breach of contract cause of action. "Where a complaint, based on the same alleged facts, asserts causes of action for breach of contract and breach of an implied duty of good faith and fair dealing, the latter should be dismissed" (see Salomon v. Citigroup Inc., 123 A.D.3d 517, 518 [1st Dept. 2014]).
It is enough that they arise from the same operative facts."]; see also Salomon v Citigroup Inc., 123 AD3d 517, 518 [1st Dept 2014] ["Plaintiff's claim for breach of covenant of good faith and fair dealing . . . is essentially duplicative of the allegations in his breach of contract claim, and should be dismissed, particularly as it seeks the same damages as the breach of contract claim."]).