On July 23, 2025, Justice Chan of the New York County Commercial Division issued a decision in Water Energy Servs. LLC v. SK Capital Partners LP, 2025 NY Slip Op. 33073(U), dismissing a claim for breach of an oral contract for failure adequately to allege the formation of a contract, explaining:
An implied in fact contract arises from situations where there is a mutual agreement and an intent to promise but the agreement and promise have not been expressed in words. However, a contract cannot be implied in fact where the facts are inconsistent with its existence, or against the declaration of the party to be charged or against the intention or understanding of the parties.
Here, plaintiffs breach of an implied contract claim fails for several reasons. First, there is a serious question as to whether an offer was even made. Under New York law, a contract is not enforceable unless it has reasonably certain material terms. For an invitation to constitute an offer, it must be plain and clear enough to establish the intended terms of the proposed contract. But the Complaint is devoid of any factual allegations demonstrating that plaintiff made an offer with certain material terms. Rather, as alleged, plaintiff voluntarily, and without solicitation, sent the introductory email with the attached Confidential Memorandum to defendant without a prior established confidentiality agreement in place. Thereafter, plaintiff and defendant continued to exchange emails, plaintiff never mentioned, proposed, or asked defendant to agree to any confidentiality terms. Without even a discussion of contract terms, there appears to be no basis to conclude that plaintiff made an offer with plain and clear language with “certain material terms.
Plaintiffs reliance on Groove Club, LLC v Peterson (211 AD3d 469, 469·470 [1st Dept 2022]) does not compel a different conclusion. In Groove Club, LLC, plaintiff and defendant allegedly met to discuss a particular concept for a television show with specific contract terms such as production credits, fee splitting, and more. Here, by contrast, plaintiff fails to allege any discussion of any contract terms. Even if plaintiff had sufficiently alleged an offer, it still fails to plausibly allege mutual assent or proof of a meeting of the minds. Under New York law, mutual assent requires proof of a meeting of the minds for a contract to be implied in fact. The assent of the person to be charged is necessary, and, unless he has conducted himself in such a manner that his assent may fairly be inferred, he has not contracted. A plaintiff must sufficiently allege conduct so that a court may justifiably infer that a promise would have been explicitly made, even if it was not expressed in words, and imply a contract.
Here, the Complaint’s allegations are insufficient to support a justified inference of assent by defendant. Plaintiff does not allege any specific acts by defendant indicating that defendant assented to any confidentiality terms. At best, plaintiff alleges that defendant expressed an interest in learning more and a willingness to meet. An allegation of interest or merely meeting, without more, is not definite enough for the court to infer that a meeting of the minds. Plaintiff also cites no authority to support the proposition that merely receiving documents or emails bearing a confidentiality stamp, or the confidentiality stamp itself, constitutes mutual assent or creates enforceable obligations. Therefore, plaintiffs allegations are inconsistent with an implied in fact contract. Given these pleading deficiencies, the court does not need to reach plaintiffs other arguments on this point. The breach of contract claim is dismissed.
(Internal quotations and citations omitted).