| Netologic, Inc. v Goldman Sachs Group, Inc. |
| 2013 NY Slip Op 06320 [110 AD3d 433] |
| October 1, 2013 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Netologic, Inc., Doing Business as Investars,
Appellant-Respondent, v Goldman Sachs Group, Inc., Respondent-Appellant, and Wall Street on Demand, Inc., Respondent, et al., Defendant. |
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Paul Hastings, LLP, New York (Douglas H. Flaum of counsel), for
respondent-appellant and respondent.
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.
Plaintiff's 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.
Plaintiff's claim for breach of the implied covenant of good 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]). [*2]
The motion court properly dismissed plaintiff's 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.