Opinion
1536
July 2, 2002.
Order, Supreme Court, New York County (Leland DeGrasse, J.), entered January 17, 2002, which granted the petition pursuant to CPLR article 76 and directed that all objections to the subject Closing Date Certificate are properly, and shall be, resolved by certain Independent Accountants, with related relief, unanimously affirmed, with costs.
JOHN G. HUTCHINSON, for petitioner-respondent.
MICHAEL L. HIRSCHFELD, for respondent-appellant.
Before: Tom, J.P., Mazzarelli, Rosenberger, Ellerin, Rubin, JJ.
The purchase price adjustment clause of the parties' stock purchase agreement unambiguously requires that any material objection to the Closing Date Certificate be submitted to the Independent Accountants proceeding (see, Luxottica Group, S.p.A. v. Bausch Lomb, Inc., 160 F. Supp.2d 552, 554-555; Matter of Rockwell Intl. Corp. v. BTR Dunlop, Inc., 192 A.D.2d 454, 457). Appellant seller would narrow the contract so that the purchase price adjustment clause applies only to changes between the Interim Financial Statements and the Closing Date Certificate (see, e.g., Matter of Melun Indus. v. Strange, 898 F. Supp. 990, 993). However, absent clear, specific terms to that effect, we decline to find that respondent buyer agreed to limit the scope of the purchase price adjustment clause (see, Matter of Foreclosure Action No. 39, 202 A.D.2d 328, 329). It is for the Independent Accountants to decide whether any individual objection is sufficiently "material" to warrant an adjustment, based on the documentation that will be taken by that panel (cf., Sisters of St. John the Baptist v. Phillips R. Geraghty Constructor, 67 N.Y.2d 997, 999). We have considered appellant's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.