On July 1, 2025, Justice Chan of the New York County Commercial Division issued a decision in GSP Merrimack LLC v. Javelin Global Commodities (UK) Ltd., 2025 NY Slip Op. 32421(U), dismissing a conversion claim because, among other reasons, it sought the same damages as a breach of contract claim, explaining:
A conversion occurs when a party, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person’s right of possession. Two key elements of conversion are (1) defendant-claimant’s possessory right or interest in the property, and (2) plaintiff-respondent’s dominion over the property or interference with it, in derogation of defendant-claimant’s rights. A contracting party may be charged with a separate tort liability arising from a breach of duty distinct from, or in addition to, the breach of contract.
. . .
[T]o allege a tort claim that does not merely restate the breach of contract claim, defendant must allege tort damages independent of those that flow from the breach of contract; that is, it must seek a separate remedy. Where a party is merely seeking to enforce its bargain, a tort claim will not lie. Put another way, if the only interest at stake is that of holding the plaintiff to a promise, the courts have said that the defendant may not transmogrify the contract claim into one for tort.
Defendant has alleged no damages independent of those that would be awarded to it via a claim for breach of contract-it only claims that it is entitled to be compensated for plaintiff’s wrongful interference with defendant’s right to own and possess the coal delivered in the Barge No. 4 and the Barge No. 5 Shipment in an amount to be proven at trial. Therefore, even if it alleged a possessory interest sufficient to support a claim for conversion, its Conversion Counterclaim should still be dismissed because it is merely seeking to enforce the terms of the MSA.
Defendant argues that it is pleading conversion in the alternative, so its arguments may be inconsistent at this stage; this is certainly true. However, it remains the case that no one challenged the New Confirmation’s validity at any point. Because pleading in the alternative cannot cure the fundamental defect in the claim-that defendant cannot show it has a possessory interest in the coal on Barges Nos. 4 and 5, nor did it plead independent damages-the Conversion Counterclaim should still be dismissed.
(Internal quotations and citations omitted).