Justice Bernard J. Fried
A foundation moved to dismiss the anticipatory breach of contract claim asserted against it by the Israel Cancer Research Fund. The claim arose from the foundation’s failure to make certain payments under two agreements. The foundation claimed as the agreements did not contain an acceleration clause and the fund did not allege the existence of any future obligation interdependent with the foundation’s obligation to make payments, the fund could not state a claim for anticipatory breach. The court disagreed, noting a review of the amended complaint made it clear the fund alleged sufficient facts to support its claim of anticipatory breach. It noted the foundation persistently refused to make payments when due and took the position it would withhold funding unless the fund took on obligations beyond those set forth in the agreements. Therefore, the court concluded, taking the pleadings as true, and according the fund every favorable inference, such allegations demonstrated a positive and unequivocal repudiation of the foundation’s obligations. As such, the court denied the foundation’s motion to dismiss the fund’s anticipatory breach of contract claim.
