Credit Agricole Corporate v. BDC Finance, LLC

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered July 21, 2014, which, to the extent appealed from as limited by the briefs, denied defendants-appellants’ motion to dismiss plaintiffs’ causes of action for breach of the implied covenant of good faith and fair dealing, unanimously affirmed, with costs.

In this intercreditor dispute, the motion court correctly found that plaintiffs’ causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing are not duplicative. Plaintiffs allege that defendants failed to share collateral ratably, in breach of the express agreements at issue. They also allege that, even if none of the provisions of the agreements were violated, defendants breached the implied covenant of good faith and fair dealing by deliberately manipulating and depressing the bids of other bidders during the auction of the debtor’s assets, thereby acquiring all of the debtor’s assets and depriving plaintiffs of the benefit of their bargain (see Dalton v Educational Testing Serv., 87 NY2d 384, 389 [1995]). These claims are sufficiently distinct.

*562 Plaintiffs’ implied covenant claim against defendant agent is not barred by, or inconsistent with, the express terms of the agreements (see e.g. SNS Bank v Citibank, 7 AD3d 352, 354-355 [1st Dept 2004]).

We have considered defendants’ remaining arguments and find them unavailing. Concur — Mazzarelli, J.P., Acosta, Andrias and Moskowitz, JJ.