(S.D.N.Y. 1987) ("Promissory estoppel, when invoked to excuse compliance with the Statute of Frauds, is distinct from the more common invocation of promissory estoppel to enforce a promise without any agreed consideration."); Horn & Hardart Co. v. Pillsbury Co., 703 F. Supp. 1062 (S.D.N.Y. 1989) ("There has been a dispute as to the applicability of the 'unequivocally referable' requirement beyond the context of the doctrine of part performance."); 3 Farnsworth on Contracts § 6.13 (1990). In any event, defendants have raised questions of material fact as to whether they relied and as to whether the acts taken in reliance were unequivocally referable to the alleged oral promise.
However, the promissory estoppel claim must be dismissed because defendants cannot show that the alleged oral promise to provide the 57th Street financing was "clear and unambiguous." Esquire Radio & Electronics, 804 F.2d at 793; Arcadian Phosphates, 884 F.2d at 73. As noted in III, supra, the Letter Agreement of August 9, 1989, stated that US West was not obligated to provide "the proposed financing until a formal commitment letter [was] executed and delivered." (Bullen Decl. Exh. 17) In other words, "the negotiations . . . made it clear that the obligations were contingent upon formal contract documents." Reprosystem, B.V. v. SCM Corp., 727 F.2d 257, 264-65 (2d Cir.) (citing Brause v. Goldman, 10 A.D.2d 328, 199 N.Y.S.2d 606 (1st Dept. 1960), aff'd mem., 9 N.Y. 620 (1961)), cert. denied, 469 U.S. 828 (1984).
Regardless of any previous course of dealing and any actions taken in reliance, without a clear and unambiguous promise there is no promissory estoppel. The August 9 Letter Agreement shows not only that no such promise was given by US West, but instead proves a contingent promise. Therefore, defendants' promissory estoppel claim is deficient, and summary judgment dismissing the claim is warranted. Reprosystem B.V., 727 F.2d at 164-65; Shearson Lehman CMO, Inc. v. TCF Banking and Savings, F.A., 710 F. Supp. 67, 73-74 (S.D.N.Y. 1989) (dismissing promissory estoppel claim on summary judgment because parties did not intend promise to be enforceable before formal writings were executed).
In the Second Counterclaim defendants also allege negligent misrepresentation. They contend that Connor negligently misrepresented that US West would extend the financing necessary to complete the buy-out. Defendants allege that they relied to their detriment, and US West is liable for their reliance damages.
No action for negligent misrepresentation lies where the alleged misrepresentation is promissory rather than factual. Murray v. Xerox Corp., 811 F.2d 118, 123 (2d Cir. 1987) ("Promises of future conduct are not actionable as negligent misrepresentation."); Margrove, Inc. v. Lincoln First Bank, 54 A.D.2d 1105, 388 N.Y.S.2d 958, 960 (4th Dept. 1976) ("The mere failure of defendant to abide by its commitment cannot be made the basis of an action in tort for misrepresentation.") Accordingly, that portion of defendants' Second Counterclaim which alleges negligent misrepresentation is dismissed.
In their Third Counterclaim defendants allege that they were coerced into signing the Guaranty, and they are entitled to a declaratory judgment that the Guaranty is unenforceable. For the reasons stated in II, supra, defendants' Third Counterclaim is dismissed.
* * * *
For the reasons stated above, plaintiff's motion for summary judgment and to dismiss defendants' counterclaims and affirmative defenses is granted. The parties are directed to confer regarding the amount and form of the award on plaintiff's claim under the Guaranty so that judgment can be entered. Absent an agreement, the parties are to submit by March 14, 1992 proposed judgments and statements no longer than three pages, double spaced, explaining their differences.
Michael B. Mukasey,
U.S. District Judge
Dated: New York, New York
February 28, 1992
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