In the Matter of Isola Aktiengesellschaft et al., Respondents, v. Honeywell International Inc., Appellant

In the Matter of Isola Aktiengesellschaft et al., Respondents, v Honeywell International Inc., Appellant. [730 NYS2d 709] [MAJORITY] —Order, Supreme Court, New York County (Williams Davis, J.), entered June 28, 2001, which, insofar as appealed from, granted petitioner’s application to stay arbitration of a dispute relating to its purchase of respondent’s assets, unanimously affirmed, with costs. It is for the court to decide whether the dispute is not arbitrable by reason of the express exception of section 16.9 of the parties’ asset purchase agreement (cf., Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39, 45-46). As the IAS court indicated, the question of arbitrability is resolved by respondent’s own notice of claim, which appears to describe the disputed item as “accrued payroll” earned by respondent’s employees but not yet paid as of the closing date, and therefore an item to be included in the “post-closing adjustment” of the purchase price authorized by section 3.2 of said agreement. Concur — Williams, J. P., Andrias, Wallach, Lerner and Mar-low, JJ.