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Many years ago, when I was a young court attorney to a criminal court judge, there was, within the omnibus applications available to a criminal defendant, an application known as a “Clayton motion,” otherwise known as a “motion to dismiss in the interest of justice.” See CPL 210.40 [1]; People v. Clayton, 41 A.D.2d 204 (1973). The motion beseeched the court to dismiss a case against an otherwise culpable party “in the interest of justice” upon consideration of certain factors. Because of its extraordinary nature, courts urged that such power should be exercised “as sparingly as garlic.” See, e.g., People v. Stern, 83 Misc.2d 935 (Crim. Ct., Bronx County 1975). I now suggest to you that, based upon recent case pronouncements by both New York’s highest court and federal courts, the doctrine of promissory estoppel should be invoked with equal selectivity, particularly when used to undermine the protections offered by the Statute of Frauds and other similar statutes designed to protect individuals from the risk of fraudulent conduct.

Promissory estoppel requires a clear and unambiguous promise, reasonable and foreseeable reliance by the party to whom the promise was made, and an injury to the party to whom the promise was made by reason of the reliance. See Cyberchron v. Calldata Sys Dev., 47 F.3d 39, 44 (2d Cir. 1995).

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