On June 15, 2023, the First Department issued a decision in Barnett v. Berkowitz, 2023 NY Slip Op. 03286, holding that a claim for breach of the duty of good faith and fair dealing can exist when the defendant has not breached a term of a contract, explaining:
The court also properly preserved plaintiff’s claim premised on the duty of good faith and fair dealing. Even if a party has not expressly breached a contract, it may breach the implied duty of good faith where it exercises a contractual right as part of a scheme to deprive the other party of the benefit of its bargain. Plaintiff’s breach of the implied covenant claim was not duplicative because it seeks redress for separate injuries: the breach of contract claim alleges that Berkowitz failed to pay the Retained Seller Benefit, while the breach of covenant claim maintains that (even assuming technical compliance with the buy-out agreement) the dollar amount of the Retained Seller Benefit should have been more.
(Internal quotations omitted).