Jersey Partners, Inc. v McCully

Jersey Partners, Inc. v McCully 2007 NY Slip Op 09536 [46 AD3d 256] December 4, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

Jersey Partners, Inc., Appellant,
v
Robert McCully, Respondent.

—[*1] Greenberg Traurig, LLP, New York City (Leslie D. Corwin of counsel), for appellant.

Goodwin Procter LLP, New York City (Meryl E. Wiener of counsel), for respondent.

Resettled judgment, Supreme Court, New York County (Charles E. Ramos, J.), entered January 24, 2007, in a proceeding pursuant to Business Corporation Law § 623, awarding respondent dissenting shareholder $21,393,161, inclusive of prejudgment interest at the rate of 9% compounded monthly, costs and disbursements, plus postjudgment interest at the rate of 9% compounded monthly, unanimously affirmed, with costs. Appeal from judgment, same court and Justice, entered July 18, 2006, unanimously dismissed, without costs, as superseded by the appeal from the resettled judgment.

A fair interpretation of the evidence supports the trial court's findings bearing on valuation (see Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992]; Matter of Friedman v Beway Realty Corp., 87 NY2d 161, 167-169 [1995]), including its acceptance of respondent's expert's valuation utilizing the market multiple, comparable transaction and discounted cash flow methods of valuation (see Montgomery Cellular Holding Co., Inc. v Dobler, 880 A2d 206, 215-216 [2005]), and rejection of petitioner's expert's valuation utilizing financial projections based on his own judgment (see id. at 215). Interest at the rate of 9% compounded monthly was properly awarded in order to adequately compensate respondent and prevent petitioner from realizing a windfall (Business Corporation Law § 623 [h] [6]; see Gonsalves v [*2]Straight Arrow Publs., Inc., 2002 WL 31057465, *9-10, 2002 Del Ch LEXIS 105, *38-41 [Del 2002]). We have considered petitioner's other arguments and find them unavailing. Concur—Lippman, P.J., Mazzarelli, Andrias, Buckley and Sweeny, JJ.