FILED: NEW YORK COUNTY CLERK 06/29/ :47 PM INDEX NO /2014 NYSCEF DOC. NO. 380 RECEIVED NYSCEF: 06/29/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PETER SIMON, as minority shareholder in The Index.: /2014 City Foundry Inc. and Industry City Distillery, Inc., and DR. DOUGLAS SIMON and RICHARD WATTS, Plaintiffs, - against - DAVID KYREJKO, ZACHARY BRUNER, Together, Majority Shareholders in The City Foundry Inc. and Industry City Distillery, Inc., THE CITY FOUNDRY INC. INDUSTRY CITY DITILLERY, INC., ANDREW KYREJKO, KEN GREENE, and THE ESTATE OF JAY BIRNBAUM, Defendants. PROPOSED JURY CHARGES AND PROPOSED VERDICT SHEET FOR THE ESTATE OF JAY BIRNBAUM 1 1 of 13

2 Jury Charges and Verdict Sheet: Interference with Contract, Inducing Breach (as modified) As you have heard, the plaintiff Peter Simon makes the following six claims: (1) that he had a contract with Zachary Bruner and David Kyrejko to produce and sell spirits through two businesses located in Brooklyn, New York, (2) that the defendant Jay Birnbaum knew about the contract, (3) that Jay Birnbaum intentionally induced Zachary Bruner and David Kyrejko to breach the contract by advising Zachary Bruner and David Kyrejko to terminate Peter Simon's interest in the businesses, (4) that Zachary Bruner and David Kyrejko did, in fact, breach the contract by terminating Peter Simon's interest in the businesses, (5) that Zachary Bruner and David Kyrejko would not have breached the contract by terminating Peter Simon's interest in the businesses if it had not been for Jay Birnbaum's conduct and (6) that Peter Simon sustained damages as a result of Zachary Bruner and David Kyrejko's breach. The Estate of Jay Birnbaum asserts that Jay Birnbaum was at all times giving Zachary Bruner and David Kyrejko truthful information, or honest advice within the scope of a request for the advice. The Estate of Jay Birnbaum (1) denies that Jay Birnbaum intentionally induced Zachary Bruner and David Kyrejko to breach the contract, (2) denies that Zachary Bruner and David Kyrejko, in fact, breached the contract, (3) denies that Zachary Bruner and David Kyrejko would not have allegedly breached the contract had it not been for Jay Birnbaum's conduct, and (4) denies that Peter Simon sustained damages as a result of Zachary Bruner and David Kyrejko's alleged breach of contract. For Peter Simon to recover, Peter Simon must prove that Jay Birnbaum was not giving Zachary Bruner and David Kyrejko truthful information, or that Jay Birnbaum was not giving Zachary Bruner and David Kyrejko honest advice within the scope of a request for the advice. Whether or not advice is "honest" is dependent on the advisor's motivation in providing the advice, not whether the advice itself is correct or the best course of action. Advice is dishonest where an advisor is motivated by a personal interest that was not disclosed to the party he was advising, or where the advisor acts in bad faith, or with fraud, collusion, or malice directed toward the party he was advising. Peter Simon must also prove that he had a contract with Zachary Bruner and David Kyrejko and that Jay Birnbaum knew about that contract. To prove that Jay Birnbaum knew about the contract between Peter Simon and Zachary Bruner and David Kyrejko, it is not necessary that Jay Birnbaum had knowledge of the contract's specific terms. Peter Simon must also prove that Jay Birnbaum intentionally induced Zachary Bruner and David Kyrejko to breach the contract. An act is intentional if it is done deliberately and for the purpose of inducing a party to a contract to breach it. Peter Simon must also prove that Zachary Bruner and David Kyrejko, in fact, breached the contract and that Zachary Bruner and David Kyrejko would not have breached had it not been for Jay Birnbaum's conduct. A contract is breached when one of the parties fails to do what (he, she, it) promised to do under the contract. An act induces a breach if it causes a party who otherwise would have complied with the contract not to do so. Additionally, Peter Simon must prove that he sustained damages as a result of Zachary Bruner and David Kyrejko's alleged breach. The Estate of Jay Birnbaum claims that, even if Jay Birnbaum's actions induced Zachary Bruner and David Kyrejko to breach the contract with Peter Simon, Jay Birnbaum's actions were justified because Jay Birnbaum was advising Zachary Bruner and David Kyrejko and claims that Jay Birnbaum was acting in that capacity to protect Zachary Bruner and David Kyrejko's economic interest. Inducing a breach of contract is justified when a person who is responsible for protecting the interests of another acts to protect those interests. A person is not justified in inducing a breach of contract if the person's sole purpose is to gain profit for himself, or to cause harm to a contracting party, rather than to protect the interests of the other person. Peter Simon claims that Jay Birnbaum's conduct was not justified because Jay Peter Simon. Birnbaum's sole purpose was to cause harm to A person is not justified in inducing a breach of contract if the person uses wrongful means. In this case, Peter Simon claims that Jay Birnbaum he used malicious and untruthful statements when advising Zachary Bruner and David Kyrejko. Whether means" or not such conduct constitutes "wrongful is a legal issue to be determined by the Court. In contrast, whether or not Jay Birnbaum used malicious and untruthful statements when advising Zachary Bruner and David Kyrejko is a factual issue to be determined by the jury. 2 2 of 13

3 If you decide (1) that Peter Simon had a contract with Zachary Bruner and David Kyrejko, (2) that Jay Birnbaum knew about the contract between Peter Simon and Zachary Bruner and David Kyrejko, (3) that Jay Birnbaum intentionally induced Zachary Bruner and David Kyrejko to breach the contract in some manner other than by giving Zachary Bruner and David Kyrejko truthful information, or honest advice within the scope of a request for the advice, (4) that Zachary Bruner and David Kyrejko, in fact, breached the contract, (5) that Zachary Bruner and David Kyrejko would not have breached the contract had it not been for Jay Birnbaum's conduct, (6) that Peter Simon sustained damages as a result of Zachary Bruner and David Kyrejko's breach; (7) that Jay Birnbaum acted solely to secure personal gain, Jay Birnbaum acted solely to harm Peter Simon, or Jay Birnbaum make malicious and untruthful statements, with a finding from the Court that such use constituted "wrongful means", when providing advice to Zachary Bruner and David Kyrejko, you will find The Estate of Jay Birnbaum liable to Peter Simon and will proceed to consider the amount of Peter Simon's damages. On the other hand, if you decide (1) that Jay Birnbaum did not intentionally induce Zachary Bruner and David Kyrejko to breach the contract, or (2) that Zachary Bruner and David Kyrejko did not, in fact, breach the contract, or (3) that Zachary Bruner and David Kyrejko would have breached the contract with Peter Simon even if it had it not been for Jay Birnbaum's conduct, or (4) that Peter Simon did not sustain damages as a result of Zachary Bruner and David Kyrejko's breach], or (5) that Jay Birnbaum's conduct was anything other than giving Zachary Bruner and David Kyrejko truthful information, or honest advice within the scope of a request for the advice, or (6) that Jay Birnbaum did not act solely to secure personal gain, or (7) that Jay Birnbaum did not act solely to harm Peter Simon, or (8) that Jay Birnbaum did not make malicious and untruthful statements, with a finding from the Court that such use constituted "wrongful means", when advising Zachary Bruner and David Kyrejko, you will find that The Estate of Jay Birnbaum is not liable to Peter Simon and you will proceed no further on this claim. I am going to provide you with a written verdict form. You will decide this case by answering the following questions: 3 3 of 13

4 Answer the following: 1. Was there a contract between Peter Simon and Zachary Bruner and David Kyrejko? If your answer to this question is "," proceed to answer Question 2. If your answer to this question is "," proceed no further and report to the Court. 4 4 of 13

5 2. Did Jay Birnbaum know of the existence of the contract between Peter Simon and Zachary Bruner and David Kyrejko? At least five jurors must agree on the answer to this question If your answer to this question is "," proceed to answer Question 3. If your answer to this question is "," proceed no further and report to the Court. 5 5 of 13

6 3. Did Zachary Bruner and David Kyrejko breach the contract with Peter Simon? If your answer to this question is "," proceed to answer Question 4. If your answer to this question is "," proceed no further and report to the Court. 6 6 of 13

7 4. Did Jay Birnbaum act with the intention of causing Zachary Bruner and David Kyrejko to breach the contract? If your answer to this question is "," proceed to answer Question 5. If your answer to this question is "," proceed no further and report to the court. 7 7 of 13

8 5. Would Zachary Bruner and David Kyrejko have breached the contract if it had not been for Jay Birnbaum's conduct? If your answer to this question is "," proceed no further and report to the Court. If your answer to this question is "," proceed to answer Question of 13

9 6. Did Jay Birnbaum's conduct go beyond giving Zachary Bruner and David Kyrejko truthful information, or honest advice within the scope of a request for the advice? If your answer to Question 6 is "," proceed to answer Question 7. If your answer to this question is "," proceed no further and report to the Court. 9 9 of 13

10 7(a). Did Jay Birnbaum act solely for personal gain? of 13

11 7(b). Did Jay Birnbaum act solely to harm Peter Simon? of 13

12 7(c). Did Jay Birnbaum use malicious and untruthful statements directed toward Zachary Bruner and David Kyrejko in advising Zachary Bruner and David Kyrejko to interfere with Peter Simon's contact with Zachary Bruner and David Kyrejko? If your answer to Question 7(a) and/or 7(b) and/or 7(c) is "," proceed to answer Question 7. If your answer to this question is "," proceed no further and report to the Court of 13

13 8. State the amount of Peter Simon's damages, if any, that were sustained as a result of Jay Birnbaum's conduct. Amount $ of 13