Anyhow, a declare to possess conversion “can’t be according to just violation regarding package
” Piven v. Wolf Haldenstein Adler Freeman & Herz L.L.P., No. 08CI. 10578 (RJS), 2010 WL 1257326, at *9 (S.D.N.Y. )(citation omitted). “Rather, to state a claim for conversion, a plaintiff must allege ‘independent facts sufficient to give rise to tort liability.'” Id. (citations omitted).
Here, the Court finds that the Plaintiff’s conversion claim is simply a restatement of the breach of contract claim based on the Defendant’s assessment of overdraft fees. Thus, there is no basis for a claim that the Defendant violated an independent tort duty owed to the Plaintiff. F. The Unfair Enrichment Allege
Under New York law, an unjust enrichment claim is a quasi-contract claim. As such, this claim generally exists only where there is no express agreement between the parties. Come across Valley Liquid Ltd., Inc. v. Evian Waters from France, Inc., 87 F.3d 604, 610 (2d Cir. 1996)(“Under New York law, ‘[t]he existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter.'”)(citation omitted); D’Amato v. Five-star Revealing, Inc., No. 12-CV-3395 (ADS)(AKT), 2015 WL 248612, at *23 (E.D.N.Y. )(citing Area Juices Ltd., Inc.).
Here, the Account Agreement defines the rights of the parties. Nevertheless, the Plaintiff insists that she may plead both breach of contract and unjust enrichment claims in the alternative and that she need not elect their remedies at this stage of the litigation. In Plumitallo v. Hudson Atl. , LLC, 74 A.D.3d 1038, 1039, 903 N.Y.S.2d 127 (2d Dep’t 2010), the court held that a plaintiff would not be required to elect his or her remedies only where, unlike here, “there is a bona fide dispute as to the existence of a contract, or where the contract does not cover the dispute in issue.” Id.; An excellent., Debit Credit Overdraft Percentage Litig., 1 F. Supp. 3d. at 53-54 (distinguishing Plumitallo); cf. Worldcare Int’l, Inc. v. Kay, 119 A.D.3d 554, 989 N.Y.S.2d 495, 497 (2d Dep’t 2014)(“Since there is a bona fide dispute as to the validity and enforceability of the employment manual as a contract, the plaintiffs are not required to elect their remedies . . .”); select M/A-Com, Inc. v. County, 78 A.D.3d 1293, 1294, 910 N.Y.S.2d 246, 247 (3d Dep’t 2010)(“If, however, there is a bona fide dispute as to the existence of a contract or whether the scope of an existing contract covers the disagreement between the parties, a party will not be required to elect his or her remedies and may proceed on both quasi contract and breach of contract theories.”).
Inside the re HSBC Lender, U . s ., Letter
Absent the circumstances stated above, the Court dismisses the Plaintiff’s claim for unjust enrichment under New York law. G. The overall Organization Laws § 349(a) Claim
“To state a claim under Section 349 [of the General Business Law], a plaintiff must allege: (1) the act or practice was consumer-oriented; (2) the act or practice was misleading in a material respect; and (3) the plaintiff was injured as a result.” Spagnola v. Chubb Corp., 574 F.3d 64, 74 (2d Cir. 2009); discover and A., Debit Cards Overdraft Payment Litig., 1 F. Supp. 3d at 54 (reciting elements of a § 349 cause of action).
“The scope of Section 349 is notably broad in three important respects. First, claims brought under Section 349 are not subject to the heightened pleading requirements set forth in Rule 9(b). Second, to state a claim under Section 349, plaintiffs need not allege they relied on defendants’ misrepresentations. Third, plaintiffs need not plead defendants knew or should have known the alleged statements were false or misleading.” Quinn v. Walgreen Co., 958 F. Supp. 2d 533, 543 (S.D.N.Y. 2013)(internal citations omitted).
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