Practice point: The Supreme Court correctly found for the defendant, as the plaintiff did not prove by clear and convincing evidence that when the defendant signed the new service agreement, it had no intention of carrying it out. The only evidence presented by the plaintiff in support of its contention that the defendant never intended to perform pursuant to the new service agreement was that the defendant terminated the agreement before service began, which alone was insufficient for the plaintiff to meet its burden. The plaintiff's lawyer's testimony that the defendant never intended to perform under the new service agreement was pure speculation.
Case: Best Metro. Towel & Linen Supply Co., Inc. v. Estiatorio, NY Slip Op 07285 (2d Dep't November 9, 2016)
Here is the decision.
Tomorrow's issue: Hearsay and summary judgment.