On December 14, 2023, the First Department issued a decision in Botbol v. Frosch Intl. Travel Inc., 2023 NY Slip Op. 06433, holding that a claim for breach of the covenant of good faith and fair dealing based on the bad faith exercise of a contract right was not duplicative of a breach of contract claim, explaining:
By alleging that defendants did not notify plaintiff that he was terminated or mention severance or a separate agreement, plaintiff maintained that defendants prevented him from being aware of the basis of his termination. Thus, he was not aware of his need to furnish Frosch with a separation agreement, which constituted a contractual condition precedent for obtaining severance benefits pursuant to that basis. Defendants thus frustrated the occurrence of that condition. Although these allegations formed part of plaintiff’s breach of contract claim, to the extent that the allegations, if true, may not have constituted a breach of contract, they are separate from that claim and in any event pleaded in the alternative. Thus, plaintiff’s claim of breach of the covenant of good faith and fair dealing, which repeats these allegations, is not duplicative of his breach of contract claim.
(Internal citations omitted).