The Appellate Division, First Department, in PMJ Capital v. PAF Capital1 addressed whether dismissal of a breach of contract claim at the pleading stage was appropriate when the parties had agreed in writing that they would have no contractual obligations unless and until a written agreement was executed and delivered by both parties and the defendant never executed or delivered the agreement. In a 3-2 decision, the First Department in PMJ Capital reversed the Supreme Court’s dismissal of plaintiff’s complaint and allowed plaintiff to proceed with its breach of contract claim.
The dissent (David B. Saxe, joined by Rolando T. Acosta) would have affirmed the dismissal on the basis of the First Department’s decision in Jordan Panel Sys. v. Turner Constr.,2 where the court had affirmed dismissal of a breach of contract claim with somewhat similar facts and quoted the language of the Court of Appeals in Scheck v. Francis3 that “[i]t is well settled that, if the parties to an agreement do not intend it to be binding upon them until it is reduced to writing and signed by both of them, they are not bound and may not be held liable until it is written out and signed.”
