On May 4, 2023, Justice Boddie of the Kings County Commercial Division issued a decision in ONH 14 53rd ST, LLC v. TPG RE Fin. 2, Ltd., 2023 NY Slip Op.. 50421(U), holding that a promissory estoppel claim failed because the plaintiff’s actions were not unequivocally referable to the alleged promise, explaining:
To the extent that plaintiffs rely on the doctrine of promissory estoppel for the purported oral modification of the LPA, plaintiffs’ allegations fail to state a claim. The elements of a promissory estoppel claim are: (i) a sufficiently clear and unambiguous promise; (ii) reasonable reliance on the promise; and (iii) injury caused by the reliance. A party may overcome a contractual no oral modification provision and enforce an oral modification to a written contract by showing that the oral modification has been acted upon to completion, or, where there is only partial performance, that such partial performance is unequivocally referable to the alleged oral modification. Here, plaintiffs’ allegations do not indicate any performance by ONH in reliance on the oral promise and, thus, there is no ensuing injury. As stated previously, there was no consideration given by plaintiffs for the alleged further extension. Moreover, the fact that plaintiffs entered into the LPA amendment to finalize the $1.8 million payment to TPG cannot constitute evidence of their reliance or consideration for the oral promise as it is undisputed that such sum was paid in consideration of the initial LPA Extension.
(Internal quotations and citations omitted).