On September 11, 2023, Justice Cohen of the New York County Commercial Division issued a decision in Intrepid Invs., LLC v. Selling Source, LLC, 2023 NY Slip Op. 33148(U), holding that a conversion claim failed because of its overlap with a breach of contract claim, explaining:
A cause of action for conversion cannot be predicated on a mere breach of contract. Rather, for a conversion claim to stand alongside a breach of contract claim, Intrepid must allege facts independent of the facts supporting their breach of contract claims. Conversion occurs when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person’s right of possession.
Intrepid’ s claim for conversion is predicated upon White Oak’s status under the ICA. Specifically, Intrepid alleges that the $100 million White Oak received in payments was paid out of the Collateral. This same $100 million forms the basis for Intrepid’s breach of the ICA claim. Therefore, Intrepid only has a present possessory right to the Collateral if the alleged $100 million in payments constitutes payment-in full and a breach of the ICA. Stated differently, Intrepid’s conversion claims rise and fall with the breach of contract claim and must be dismissed.
(Internal quotations and citations omitted).