| D.B. Zwirn Special Opportunities Fund, L.P. v Brin Inv. Corp. |
| 2012 NY Slip Op 04395 [96 AD3d 447] |
| June 7, 2012 |
| Appellate Division, First Department |
| B.N. Zwirn Special Opportunities Fund, L.P.,Respondent, v Brin Investment Corp., Appellant and Third-Party Plaintiff-Appellant.Brin Management LLC, Third-Party Defendant-Respondent. Brin Investment Corp., Appellant, vD.B. Zwirn Special Opportunities Fund, L.P., Respondent. |
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Vinson & Elkins L.L.P., Houston, Texas (Gwen J. Samora, of the Texas bar, admitted prohac vice, of counsel), for respondents.
Amended judgment, Supreme Court, New York County (Bernard J. Fried, J.), enteredFebruary 7, 2011, upon a jury verdict in favor of D.B. Zwirn Special Opportunities Fund, L.P.and Brin Management LLC against Brin Investment Corp., unanimously affirmed, with costs.Appeal from judgment, same court and Justice, entered February 7, 2011, unanimouslydismissed, without costs, as moot.
The trial court correctly instructed the jury on the alternative legal theories, ratification andnovation, by which Brin Investment, a nonsignatory to the agreement, could be bound by theagreement. To the extent Brin Investment argues that the evidence was insufficient to support afinding of novation, its claim is unpreserved since it did not move for a directed verdict at theclose of the evidence (see Santiago v New York City Hous. Auth., 268 AD2d 203[2000]). In any [*2]event, the jury could rationally haveconcluded that Brin Management's obligations under the agreement were extinguished and thatBrin Investment was substituted as the manager under the agreement (see Wasserstrom vInterstate Litho Corp., 114 AD2d 952, 954 [1985]).
The court properly excluded from evidence a spreadsheet prepared for settlement discussions(see CPLR 4547). It properly admitted into evidence as a business record an annotatede-mail exchange made during negotiations of the agreement (see CPLR 4518 [a]), andadmitted as an admission of fact Brin Investment's letter claiming indemnity rights under theagreement at issue (see e.g. Central Petroleum Corp. v Kyriakoudes, 121 AD2d 165[1986], lv dismissed 68 NY2d 807 [1986]). Concur—Gonzalez, P.J., Friedman,Renwick, Manzanet-Daniels and Román, JJ.