D.B. Zwirn Special Opportunities Fund, L.P. v Brin Inv. Corp.

D.B. Zwirn Special Opportunities Fund, L.P. v Brin Inv. Corp. 2012 NY Slip Op 04395 Decided on June 7, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 7, 2012
Gonzalez, P.J., Friedman, Renwick, Manzanet-Daniels, Román, JJ. 7867-
7868 604074/06 590094/08 604452/06

[*1]D.B. Zwirn Special Opportunities Fund, L.P., Plaintiff-Respondent,

v

Brin Investment Corp., Defendant-Appellant. Brin Investment Corp., Third-Party Plaintiff-Appellant, Brin Management LLC, Third-Party Defendant-Respondent.



Brin Investment Corp., Plaintiff-Appellant,

v

D.B. Zwirn Special Opportunities Fund, L.P., Defendant-Respondent.




LeClairRyan, P.C., New York (Michael T. Conway of counsel),
for appellant.
Vinson & Elkins L.L.P., Houston, TX (Gwen J. Samora, of the
bar of the State of Texas, admitted pro hac vice, of counsel), for
respondents.

Amended judgment, Supreme Court, New York County (Bernard J. Fried, J.), entered February 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, unanimously dismissed, without costs, as moot.

The trial court correctly instructed the jury on the alternative legal theories, ratification and novation, by which Brin Investment, a non-signatory to the agreement, could be bound by the agreement. To the extent Brin Investment argues that the evidence was insufficient to support a finding of novation, its claim is unpreserved since it did not move for a directed verdict at the close of the evidence (see Santiago v New York City Hous. Auth., 268 AD2d 203 [2000]). In any [*2]event, the jury could rationally have concluded that Brin Management's obligations under the agreement were extinguished and that Brin Investment was substituted as the manager under the agreement (see Wasserstrom v Interstate 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 annotated e-mail exchange made during negotiations of the agreement (see CPLR 4518[a]), and admitted as an admission of fact Brin Investment's letter claiming indemnity rights under the agreement at issue (see e.g. Central Petroleum Corp. v Kyriakoudes, 121 AD2d 165 [1986], lv dismissed 68 NY2d 807 [1986]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 7, 2012

CLERK