Julie Research Laboratories Inc. v. Aul Instrument Inc.

Judgment of the Supreme Court, New York County, entered on November 1, 1976, setting aside a jury verdict in favor of plaintiff for $22,500 and dismissing the complaint and the defendant’s counterclaim, unanimously affirmed, without costs and without disbursements. In this action for breach of contract plaintiff failed to prove a prima facie case. We agree with the trial court that the evidence submitted by plaintiff failed to demonstrate that plaintiff performed the obligations incumbent upon it in order to enable defendant to proceed with the contract between the parties, as plaintiff apparently had a change of mind and decided to back out of the contract. Nevertheless, we must still agree with the trial court’s dismissal of defendant’s counterclaim for loss of profits. Although defendant offered evidence to show it had met its obligations, it failed to meet its burden of establishing by supportive evidence how it arrived at its profit factor, i.e., the profit percentages it claimed in relation to the sales contemplated by the contract of the specified electronic equipment. Concur — Birns, J. P., Silverman, Evans and Capozzoli, JJ.