By this motion, Defendant, The Harvey and Gloria Kaylie Foundation, Inc. (the"Kaylie Foundation"), moves to dismiss the anticipatory breach of contract claim asserted against it by Plaintiff, Israel Cancer Research Fund, Inc. ("ICRF").

The anticipatory breach claim arises out of the Kaylie Foundation's failure to make certain payments when due under the two agreements at issue here (the "2003 Agreement" and the "2004 Agreement"; together, the "Agreements"). Defendant argues that since the Agreements do not contain an acceleration clause, and since Plaintiff has not alleged the existence of any future obligation that is interdependent with Defendant's obligation to make the payments, Plaintiff cannot state a claim for anticipatory breach. Furthermore, Defendant argues, Plaintiff has not alleged that Defendant's repudiation of its future obligations under the Agreements was positive and unequivocal. In the absence of such a clear repudiation, Defendant contends that the Amended Complaint sets forth nothing more than allegations of a prior breach, which cannot be read to constitute a future repudiation. [*2]

Plaintiff argues that the existence of interdependent obligations is sufficiently alleged in the Amended Complaint, since it alleges that ICRF committed to funding and administering certain grants over the course of the 21-year period contemplated by the Agreements, in exchange for the Kaylie Foundation's annual payments. Moreover, Plaintiff argues, the Amended Complaint contains the express allegation that the Kaylie Foundation positively and unequivocally repudiated its funding obligations.

Under the doctrine of anticipatory repudiation, "if one party to a contract repudiates his duties thereunder prior to the time designated for performance and before he has received all of the consideration due him thereunder, such repudiation entitles the nonrepudiating party to claim damages for total breach." Long Island Rail Road Co., v. Northville Industries Corp., 41 NY2d 455, 463 (1977). In determining the applicability of the doctrine, "[t]he question is whether, at the time of the repudiation, there existed some dependency of obligation. If the obligations are interdependent, a claim may lie to recover money payable in the future." Id. at 466 (citations omitted).

In addition to dependency of obligation, the party asserting an anticipatory breach claim must allege an "overt communication of intention not to perform," and such announcement must be "positive and unequivocal." Tenavision, Inc. v. Neuman, 45 NY2d 145 (1978); see also HRL Union Avenue Corp. v. New York City Housing Authority, 223 AD2d 486, 487 (1st Dep't 1996) (dismissal proper where plaintiff failed to raise an issue of fact as to "clear and unequivocal intention by defendant not to perform . . . as would be required for a claim of anticipatory breach").

Review of the Amended Complaint makes clear that ICRF has alleged sufficient facts to support its claim of anticipatory breach. ICRF alleges that, pursuant to the terms of the Agreements, the Kaylie Foundation was to make certain annual payments, and ICRF was to fund professorship grants and fellowship grants. (Amended Compl. ¶¶ 8-11.) ICRF further alleges that it has performed its obligations, "as they have come due," and that, specifically, it has funded the agreed upon professorships and fellowships, and has provided the Kaylie Foundation with periodic progress reports. (Id. ¶ 16.) ICRF has therefore alleged the existence of interdependent obligations.

The Amended Complaint also details the Kaylie Foundation's failure to make payments in 2005, 2009, and 2010, and sets forth ICRF's repeated requests for payment. According to the Amended Complaint, the Kaylie Foundation "time and again persistently refused to make the payments," and has "explicitly taken the position that it will continue to withhold that funding unless ICRF takes on obligations beyond those set forth in the [Agreements]." (Id. ¶ 21-22.) Accepting the pleadings as true, and according the benefit of every inference to the plaintiff, as I must do on a motion to dismiss (see, e.g., Mandarin Trading Ltd. v. Wildenstein, 65 AD3d 448 (1st Dep't 2009), I can only read these allegations to demonstrate a positive and unequivocal repudiation of the Kaylie Foundation's obligations.

Accordingly, it is

ORDERED that the motion is DENIED.

Date:December ____, 2011 [*3]

ENTER:

___________________________

J.S.C.