Matter of Kingsway Am. Inc. v. Zephyr Acquisition Co. , 148 A.D.3d 429 ( 2017 )

Matter of Kingsway Am. Inc. v Zephyr Acquisition Co. (2017 NY Slip Op 01640)

Matter of Kingsway Am. Inc. v Zephyr Acquisition Co.

2017 NY Slip Op 01640

Decided on March 2, 2017

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 March 2, 2017
Friedman, J.P., Andrias, Feinman, Kapnick, Gesmer, JJ.

3319 154035/15

[*1]In re Kingsway America Inc., Petitioner-Appellant,

v

Zephyr Acquisition Company, Respondent-Respondent.

Ruberry, Stalmack & Garvey, LLC, New York (James M. Barton of counsel), for appellant.

Sullivan & Worcester LLP, New York (George O. Richardson, III of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Carol Edmead, J.), entered November 18, 2015, denying the petition and dismissing the special proceeding, unanimously affirmed, with costs.

Petitioner seeks to compel respondent to submit Items of Dispute (as that term is defined in the parties' 2009 share purchase agreement) to an independent accounting firm under section 2.4(c) of the agreement. However, the record shows that the parties resolved the Items of Dispute in 2010, when petitioner did not dispute that the post-closing adjustment would be approximately $5.5 million. We note that the language of section 2.4(c) indicates that the parties intended Items of Dispute to be resolved expeditiously.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 2, 2017

CLERK