INSIDE SWING v. LE CHASE (1997)

 Supreme Court properly dismissed the first cause of action alleging breach of contract.   The parties' Non-Binding Letter of Intent Agreement leaves several material terms for future negotiations and expressly provides that it is “not binding” and “preliminary to the negotiation of a Lease Agreement.”   The parties never entered into a binding contract but merely expressed their “intent to negotiate the essential terms of a binding agreement” (Aces Mech. Corp. v. Cohen Bros. Realty & Constr. Corp., 136 A.D.2d 503, 505, 523 N.Y.S.2d 824;  see, Martin Delicatessen v. Schumacher, 52 N.Y.2d 105, 109-110, 436 N.Y.S.2d 247, 417 N.E.2d 541;  American Energy Prods. Corp. v. Keene Corp., 72 A.D.2d 514, 421 N.Y.S.2d 7).

 The court erred, however, in failing to dismiss the second cause of action alleging fraud.   The complaint alleges that defendants asserted their intention to enter into a lease agreement with plaintiff but failed to do so.  “Although a false representation as to a state of mind may be a false representation of a material fact (Deyo v. Hudson, 225 N.Y. 602, 612, 122 N.E. 635), it does not follow that every broken promise acted upon is actionable.   Mere promissory statements as to what will be done in the future are not actionable” (Adams v. Clark, 239 N.Y. 403, 410, 146 N.E. 642;  see, Margrove Inc. v. Lincoln First Bank of Rochester, 54 A.D.2d 1105, 388 N.Y.S.2d 958).   We therefore modify the order by granting defendants' motion and dismissing the second cause of action.

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: