IBE TRADE CORP v. LITVINENKO (2007)

Judgment, Supreme Court, New York County (Leland DeGrasse, J.), entered March 22, 2006, awarding plaintiff the sum of $11,379,390, and bringing up for review an underlying order, same court and Justice, entered February 27, 2006, unanimously affirmed, with costs. Appeal from the February 27, 2006 order unanimously dismissed, without costs, as subsumed in the appeal from the ensuing judgment.

We previously affirmed the finding, following a nonjury trial of the matter, that defendant Litvinenko breached his fiduciary duty to plaintiff, and implicitly affirmed the trial court's conclusion that defendant had converted $2.5 million of plaintiff's funds (see 298 A.D.2d 285, 748 N.Y.S.2d 741).   However, we vacated the subsequently entered judgment in plaintiff's favor in the amount of $11,379,390, and remanded the matter for findings of fact in support of the damages award (16 A.D.3d 132, 133, 790 N.Y.S.2d 449).   Those findings have now been made, and are challenged by defendant as based upon incompetent proof.   However, defendant's argument that certain evidence should not have been received is unpreserved for review (see Shinn v. Catanzaro, 1 A.D.3d 195, 198, 767 N.Y.S.2d 88 [2003];  and see Aguilar v. N.Y.C. Water Works, 298 A.D.2d 245, 246, 748 N.Y.S.2d 155 [2002] ).

The evidence, fairly considered, supported the disposition reached (see Thoreson v. Penthouse Intl., 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369 [1992];  New Falls Corp. v. Simmons, 35 A.D.3d 327, 328, 825 N.Y.S.2d 362 [2006] ).   Plaintiff provided substantial evidence of the damages it sustained as a result of defendant's breach of fiduciary duty, conversion and other wrongdoing, which damages included lost profits in the sum of $8,879,390 and misappropriated funds in the amount of $2.5 million.

We have considered defendant's other arguments and find them unavailing.