On February 9, 2026, Justice Crane of the New York County Commercial Division issued a decision in Yonder Media Mobile Inc. v. FuboTV, Inc., 2026 NY Slip Op. 30466(U), holding that a promissory estoppel claim cannot overcome the fact that a term sheet unambiguously stated that it was not a binding agreement, explaining:
The motion to dismiss is granted pursuant to the reasoning on the record of February 9, 2026. In sum, the court dismisses the claim for promissory estoppel. It is beyond dispute that the Term Sheet both parties signed was expressly “non-binding.” Indeed the banner to the term sheet states that it is “SUBJECT TO DUE DILIGENCE AND EXECUTION OF DEFINITIVE DOCUMENTS.”
In addition, section 10 of the Term Sheet states it is, inter alia, subject to “Necessary Board and shareholder approvals of the parties.” Section 14 of the Term Sheet states:
Except for paragraphs 11 (Confidentiality), 12 (Costs), 13 (Governing Law) and 14 (Binding Agreement) of this Term Sheet, which the Parties hereby agree shall be binding on them, nothing in this Term Sheet shall be deemed binding on the Parties. For the avoidance of doubt, nothing herein shall obligate any of the Parties to enter the FUBO INVESTMENT.
Despite this clear language, YMM claims it incurred significant start-up costs at FUBO’s urging. The court dismissed the first cause of action for promissory estoppel for the reasons discussed on the record. Primarily, the promissory estoppel cause of action is not an end runaround the terms of an unambiguous term sheet that purports to be non-binding and was subject to board and shareholder approval. Where a term sheet or other preliminary agreement explicitly requires the execution of a further written agreement before any party is contractually bound, it is unreasonable as a matter of law for a party to rely upon the other party’s promises to proceed with the transaction in the absence of that further written agreement.
Imperium Blue Acquisition Partners, LLC v. Marathon Asset Mgmt., L.P., 236 A.D.3d 467, 467–68, (1st Dep’t 2025) is also instructive. In that case, the Appellate Division, First Department recently reversed the trial court and dismissed the claims for fraud and promissory estoppel. The court reasoned that a term sheet, allowing defendants to require all normal and customary due diligence items, including survey reports, directly contradicted the alleged prior oral promises defendants made that they would use best efforts to close the financing by a certain date by expediting and streamlining the due diligence process. Indeed, plaintiff here does not cite a single case where statements about a contingent deal being finalized were promises sufficient to support a claim for promissory estoppel.
In addition, plaintiff has admittedly failed to plead unconscionable injury–a requirement for promissory estoppel. The court dismissed the second and third counts for fraud in the inducement and fraud respectively for the reasoning expressed on the record. First, as explained, plaintiff has failed to plead with particularity. We do not know who said what to whom and when.
Moreover, neither count alleges a present misrepresentation of fact. In count two, there are no facts pled to demonstrate defendant lacked the intention to enter into the contemplated transaction at the time it signed the term sheet (see King Penguin, supra, at 690 [“general allegations of lack of intent to perform are insufficient; rather facts must be alleged establishing that the adverse party, at the time of making the promissory representation, never intended to honor the promise] [citations omitted]).” Like count two, count three also alleges only future facing conduct, not a present misrepresentation of fact.
(Internal quotations and citations omitted).