JLJ Capital LLC v. Churchill Real Estate Holdings LLC

JLJ Capital LLC v Churchill Real Estate Holdings

LLC

2025 NY Slip Op 30056(U)

January 7, 2025

Supreme Court, New York County

Docket Number: Index No. 656966/2022

Judge: Margaret A. Chan

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.

INDEX NO. 656966/2022

NYSCEF DOC. NO. 177 RECEIVED NYSCEF: 01/07/2025

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 49M

---------------------------·-------------X

JLJ CAPITAL LLC, INDEX NO. 656966/2022

Plaintiff,

MOTION DATE 05/21/2024

- V -

MOTION SEQ. NO. 003

CHURCHILL REAL ESTATE HOLDINGS LLC,

Defendant. DECISION+ ORDER ON

MOTION

------X

HON. MARGARET A. CHAN:

The following e-filed documents, listed by NYSCEF document number (MS003) 115, 116, 117, 118,

119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138,

139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158,

159,160,161,162,163,164,165,166,167,168,169,170,171,172,173,174,175,176

were read on this motion to/for JUDGMENT - SUMMARY

Plaintiff JLJ Capital LLC (JLJ) brings this action against defendant

Churchill Real Estate Holdings LLC (Churchill) to enforce its purported inspection

rights under the parties' loan participation agreement (NYSCEF # 2 - compl or

Complaint). Presently before the court is JLJ's motion, pursuant to CPLR 3212, for

an order, inter alia, granting summary judgment in its favor on its first cause of

action for breach of contract and its second cause of action for attorneys' fees

(NYSCEF # 115). Churchill opposes the motion.

For the following reasons, JLJ's motion is granted.

Back.ground

The following facts are drawn from the parties' submissions and are

undisputed unless otherwise noted.

On June 7, 2018, Churchill, as lender, loaned the principal sum of

$20,000,000 to non·party 257-263 W34th Mezz LLC pursuant to a certain

mezzanine promissory note and mezzanine loan agreement (NYSCEF # 142 - pltf

19-a ,r I; NYSCEF # 119 - the Loan). The next year, on July 11, 2019, Churchill

agreed to sell and transfer, and JLJ, as participant, agreed to purchase and assume,

an 20% interest in the Loan pursuant to a Participation Agreement (pltf 19-a

,r,r 204; NYSCEF # 172 - deft 19-a ,r 20; NYSCEF # 120 - Agreement at Recitals &

§ 1.2). As is relevant here, Section 4.4 of the Agreement obligated Churchill to

"mark its books to reflect [JLJ's] Percentage and maintain books and records

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relating to the Loan, which shall be made available to [JLJ] at reasonable times,

upon reasonable notice, for the purpose of inspection, examination, audit and

copying by [JLJ], at [JLJ's] sole cost and expense" (pltf 19-a ,i 5; deft 19-a ,i 21;

Agreement § 4.4[i]).

On August 19, 2021, approximately two years after entering into the

Agreement, Citrin Cooperman LLP (Citrin Cooperman), on behalf of JLJ, notified

Churchill that it had been engaged to perform limited "agreed upon procedures on

JLP's accounting and financial statement reporting," and it had selected "JLJ's

financing agreement with Churchill Dregarding the [Loan] as part of [its] sample"

(NYSCEF # 121-Aug. 19, 2021 Ltr). To facilitate this review, Citrin Cooperman

requested the following categories of documents from Churchill: (1) "[a]ll underlying

loan agreements with the borrowers for th[e] [two specified] properties (including

senior, mezzanine, and any other loans)"; (2) "[l]edgers or schedules from inception

of the underlying loans to present"; (3) "[a]ny applicable year-end financial

statements, general ledgers, or trial balances related to the [L]oan," (4) any loan

amortization schedules, and (5) copies of financial statements and any other

documents provided by the borrower to Churchill (pltf 19-a ,r 6; Aug. 19, 2021 Ltr at

CH_000000l-002).

On February 16, 2022, Churchill responded to JLJ's request by circulating a

"closing binder for senior loan plus settlement statement" (see 19-a ,r 7; NYSCEF #

122 at CH_0001449). This transmission contained 38 documents, including a

document entitled "34th Title Policy" issued in connection with a senior note

refinancing of $42,168,066.35 (pltf 19-a ,i 7; deft 19-a ,i,i 7, 31). The documentation

provided by Churchill also listed out various disbursements in line-item format,

including disbursements of (1) $3,041,139.63 with a description of "Churchill Real

Estate," (2) $170,688.36 with a description of "Remaining Hard Costs to NY

Directors," and (3) $1,666,918.35 with a description of "Hard Costs Holdback to NY

Developers" (pltf 19-a ,i 8; deft 19-a ,i 8; NYSCEF # 122 at CH_0000904-905). A few

weeks later, on March 3, 2022, Churchill provided additional information in

response to JLJ's August 19, 2021, letter (deft 19-a ,i 32; NYSCEF # 165 at

JLJ_00001267).

In reply, JLJ, again through Citrin Cooperman, circulated a letter, dated

April 7, 2022, providing comments, highlighting open requests, and requesting

additional information from Churchill (pltf 19 ,i 9; deft 19-a ,i 33; NYSCEF # 124

-April 7, 2022 Ltr). This letter included a request for the following documents:

(i) schedules showing loan funding dates/amounts for all participants in the Loan;

(ii) schedules showing loan repayment dates/amounts for all participants in the

Loan; (iii) a schedule regarding interest accruals; (iv) adjustments to the principal

or interest balances of borrowers or participants, including documentation and

further detail on specific disbursements in the document titled "Closing Binder

(2095_001)"; (v) all Churchill general ledgers for the fiscal year of 2019 through the

present; (vi) financial statements, a letter of credit, or financial representations

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made upon application for the Loan; (vii) bank statements for the project from

inception to present showing all participant funding, usage of participant funding,

and repayments/buyouts of participants; and (viii) a closing statement for the

$42,168,066.35 refinancing of senior note that enumerates how such proceeds were

netted out against the total Loan (pltf 19-a 1 9; deft 19-a 1 34; April 7, 2022 Ltr at

CH_0000003-005).

The parameters of the parties' dispute began crystalizing in April 2022, when

Churchill, by email from counsel dated April 13, 2022, expressed its view that the

documents requested in the August 19, 2021, and April 7, 2022, letters "expand[ed]

beyond those limited disclosure rights" in Section 4.4 of the Agreement (see 19-a

1 IO; deft 19-a 1 36; NYSCEF # 125 at CH_0000122). That same day, JLJ explained

that "irrespective of what initially triggered [its] books and records request, [JLJ]

now ha[d] concerns regarding the veracity of the representations made by Churchill

Din advance of [JLJ's] participation in the transaction" (NYSCEF # 125 at

CH_0000121). JLJ further indicated that Section 4.4 entitled JLJ to "books and

records related to the [L1oan, which would naturally include the general ledger,

bank statements, and other documents outlined in Citrin Cooperman's letter" (id.).

Later, on April 18, 2022, Churchill responded that (I) JLJ's "concerns regarding the

veracity of representations is misplaced [sic]," (2) JLJ "had access to various due

diligence items" prior to entering into the Agreement, and (3) JLJ had an

"affirmative duty to exercise ordinary diligence to ascertain the veracity of the

representations of which it now seeks to complain" (id.). Churchill also noted that

Section 4.4 "merely provide[d] JLJ" with "reasonable access to books and records"

regarding the Loan, but not "the audit rights outlined in the Citrin Cooperman

letter" or "the right to access investor lists and [Churchill's] trade secrets" (see pltf

19-a 1 10; NYSCEF # 122 at CH_0000121).

On May 2, 2022, JLJ, now through counsel, served another demand on

Churchill for (a) general ledgers from June 7, 2018 to the present; (b) bank

statements from June 7, 2018 to the present; (c) financial statements as of the end

of 2018 to the present; (d) participation agreements of the other participants in the

Loan from June 7, 2018 to the present; and (e) documents sufficient to show the

corporate and financial relationship between Churchill and any of its affiliates to

which funds related to the Loan were transferred (pltf 19-a 1 II; deft IB-a 1 37;

NYSCEF # 126 - May 2, 2022, Ltr at CH_000136-138). In that same

correspondence, JLJ represented that it would perform any audit subject to a

confidentiality agreement and was willing to accept documents with redactions

applied to the names and other identify information of Churchill's other investors

and participants (pltf 19-a 1 12; deft 19-a 1 38; May 2, 2022 Ltr at CH_0000137).

On May 9, 2022, Churchill provided additional documents to JLJ, including a

Loan Statement of Account that it contends is "maintained and relating to the

Loan" under Section 4.4 of the Agreement (pltf 19-a 1 12; deft 19-a 11 41-42;

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NYSCEF # 127 -May 9, 2022 Ltr; NYSCEF # 128 - SOA). 1 In its accompanying

letter, Churchill reiterated its position regarding Section 4.4 of the Agreement and

explained that it did not maintain a general ledger for the Loan or bank statements

for the Loan (see pltf 19-a ,r 15; deft 19·a ,r 15; May 9, 2022 Ltr at CH_0000382·

384). JLJ responded on May 20, 2022, to identify deficiencies in Churchill's May 9

letter and again reiterated its books and records demand (see NYSCEF # 129 at

CH_0000243·245). In a letter, dated May 26, 2022, Churchill explained that it

would not be producing any additional documents given the information that had

already been provided to JLJ (see 19-a ,r 16; NYSCEF # 130 at CH_0000167).

Based on Churchill's purported refusal to produce any additional information,

JLJ commenced this litigation on June 24, 2022 (NYSCEF #s 1- compl). JLJ

contends that Churchill has refused to grant JLJ access to much of the information

initially requested in its August 2021, March 2022, and May 2022 letters, including

(i) general ledger account activity from June 7, 2018 to present; (ii) bank statements

reflecting Loan transactions from June 7, 2018 to present; (iii) financial year-end

statements for 2018 to the present; (iv) Churchill's Loan participation schedules;

(v) all data used in preparation of and/or evidencing the transactions contained in

the Statement of Account; (vi) participation agreements for the Loan from June 7,

2018 to the present (redacting any identifying information); (vii) accounting records

related to the Loan from June 7, 2018 to the present; (viii) documents sufficient to

show the corporate and financial relationships between Churchill and any of its

affiliates to which funds related to the Loan were transferred; and

(ix) documentation concerning certain transactions, including disbursements in the

amounts of $3,041,139.63 and $170,688.36, respectively (the Requested Documents)

(seepltf19·a ,r 17; deft 19·a ,r 46; NYSCEF# 117-Lewis aff,r 16). For its part,

Churchill maintains that it does not keep separate ledgers, bank accounts, or

financial statements specific to the Loan, and that much of the Requested

Documents encompass corporate· level information that does not fall within the

purview of Section 4.4 of the Agreement (see deft 19-a ,r,r 47·55). 2

As the above suggests, the parties' dispute concerning JLJ's entitlement to

the Requested Documents centers around the scope of the Churchill's obligations to

JLJ under Section 4.4 (see pltf 19·a ,r,r 6-18; deft 19·a ,r,r 24-104). JLJ contends that

Section 4.4 gives JLJ a right to audit, inspect, and examine/review Churchill's

records related to the Loan, which would include all financial information and

1 Although Churchill states that the SOA identifies interest payments and balances related to the

Loan, JLJ notes that the document was manually prepared and that a review of the underlying

information used to create this document is needed to evaluate the veracity of Churchill's position

(deft 19·a i\ 42; NYSECEF # 176 ,i 42; see also NYSCEF # 133 - Maheshwari tr 37:17·39:3).

2 Nonetheless, Churchill has acknowledged, through testimony, that information about the Loan

would be reflected in its corporate-level records, while monthly Loan statements, as well as

statements of account, can be generated in Excel by Churchill (see pltf 19·a ,i 18; NYSCEF # 154 -

Maheshwari tr 16:3, 20:21-21:19, 37:6-40:9, 38:14·21, 49:13-52:25, 54:7-14, 114:3-10, 159:12-161:25,

11s:21-179:s).

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accounting records that evidence transactions relating to the Loan or otherwise

contain information about the Loan (see Lewis aff ,i,i 17-21). JLJ supports this

position through its experts' report (the Womack Report). The Womack Report

opines that (1) Section 4.4 requires Churchill to mark its books to reflect the

participant's percentage, maintain books and records relating to the Loan, and

make those books and records available to JLJ for purpose of audit, inspection, and

examination and copying, and (2) to facilitate such an audit, inspection, and

examination, Churchill must provide all financial books and records about the Loan,

including internal and external source documents needed to verify transactions and

financial information (see NYSCEF # 141 - WM Report ,i,i 2, 25-28, 38-48).

Churchill counters that Section 4.4 only entitles JLJ to books and records

that are maintained by Churchill and relate to the Loan and does not grant JLJ

access to corporate-level documents in any capacity (see deft 19-a ,i 62; Maheshwari

aff ,i,i 17-18, 40, 68). Further, Churchill continues, although Section 4.4 does allow

JLJ to inspect, examine, audit, or copy the documents that are maintained by

Churchill and specifically relate to the Loan, it does not give JLJ the right to

conduct an audit of Churchill's business (see deft 19-a ,i,i 62-63; Maheshwari aff ,i,i

68-69, 75). Churchill contends that its interpretation of Section 4.4 is consistent

with the interpretation of similarly worded provisions included in other

participation agreements between JLJ and Churchill, as well as the parties' course

of conduct (see deft 19-a ,i,i 68-85; Maheshwari aff ,i,i 17-20, 27, 33-34, 69, 75).

Churchill also points to its rebuttal expert, Jeffrey M. Katz, CPA/ABV, CFF,CFE,

who opines that, based on his experience with books and records provisions, Section

4.4 limits the books and records to which JLJ is entitled to only those maintained by

Churchill relating to the Loan (see NYSCEF # 153 - Katz Report ,i,i 22-33).

Legal Standard

A party moving for summary judgment must make a prima facie showing

that it is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68

NY2d 320, 324 [1986]). Once that showing is made, the burden shifts to the party or

parties opposing the motion to produce evidentiary proof, in admissible form,

sufficient to establish the existence of material issues of fact requiring a trial of the

action (see Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]). On a motion

for summary judgment, "facts must be viewed 'in the light most favorable to the

non-moving party"' (see Vega v Restani Constr. Corp, 18 NY3d 499, 503 [2012]).

Although summary judgment is "considered a drastic remedy," "when there is no

genuine issue to be resolved at trial, the case should be summarily decided" (Andre

v. Pomeroy, 35 NY2d 361, 364 [1974]).

Discussion

In this action, JLJ asserts a claim for breach of Section 4.4 of the Agreement

against Churchill and seeks specific performance directing Churchill to permit

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examination of books and records related to the Loan (compl ,r,r 42-53). 3 JLJ now

moves for summary judgment. To prevail on its claim on this motion, JLJ must

make a prima facie showing of "the existence of a contract, [its] performance

thereunder, [Churchill's] breach thereof, and resulting damages" (Lebedev v

Blavatn1k, 193 AD3d 175, 182-183 [1st Dept 2021], quoting Harris v Seward Park

Hous. Corp., 79 AD3d 425, 426 [1st Dept 2010]). Whether JLJ can make this

showing here turns on the scope of Section 4.4 of the Agreement, which must be

discerned through the familiar principles of contract interpretation in New York.

Under New York law, "a contract is to be construed in accordance with the

parties' intent" (MHR Capital Partners LP v Presstek, Inc., 12 NY3d 640, 645

[2009]). And the "best evidence of what parties to a written agreement intend is

what they say in their writing" (Slamow v Del Col, 79 NY2d 1016, 1018 [1992]).

Accordingly, "when parties set down their agreement in a clear, complete document,

their writing should as a rule be enforced according to its terms" (WW W Assoc.,

Inc. v Giancontien: 77 NY2d 157, 162 [1990]). Furthermore, "[t]he agreement

should be 'read as a whole, and every part will be interpreted with reference to the

whole"' (Global Reins. Corp. ofAm. v Century Indem. Co., 30 NY3d 508, 518 [2017]).

These well-settled principles of contract interpretation require courts to "give

full meaning and effect [the agreement's] material provisions" (Excess Ins. Co. Ltd.

v Factory Mut. Ins., 3 NY3d 577, 582 [2004]; accord Beal Sav. Bank v Sommer, 8

NY3d 318, 324 [2007] [explaining that a reading of the contract "should not render

any portion meaningless"]). To accomplish this goal, courts must "accord the words

of the contract their 'fair and reasonable meaning"' (Duane Reade, Inc. v

Cardtronics, LP, 54 AD3d 137, 140 [1st Dept 2008], quoting Heller v Pope, 250 NY

132, 135 [1928]). Put differently, the court's "aim is a practical interpretation of the

expressions of the parties to the end that there be a 'realization of [their] reasonable

expectations'" (Brown Bros. Elec. Contrs., Inc. v Beam Const. Corp., 41 NY2d 397,

400 [1977], quoting 1 Corbin, Contracts§ L accord Matter of Cromwell Towers

Redevelopment Co. v City of Yonkers, 41 NY2d 1, 6 [1976] [observing that "due

consideration must be given to the purpose of the parties in making the contract"

and that "[a] fair and reasonable interpretation, consistent with that purpose, must

guide the courts in enforcing the agreement"]).

Here, JLJ argues that Section 4.4 must be interpreted broadly to encompass

not just documents created solely for the purpose of the Loan, but also financial

records evidencing the Loan and its transactions (including the Requested

Documents) (see NYSCEF # 116 -MOL at 12-17; NYSCEF # 173 - Reply at 2·12).

Churchill counters that JLJ's proffered interpretation improperly expands the scope

of Section 4.4 by requiring Churchill to maintain books and records sufficient to

conduct a financial audit, rather than merely those documents maintained by

Churchill regarding the Loan (see NYSCEF # 145 - Opp at 10-14). Plainly, at its

3 JLJ also seeks attorneys' fees pursuant to Section 7.10 of the Agreement (see com pl ,i,i 54·56).

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core, this dispute ultimately centers around Section 4.4's use of the phrase "relating

to" as a means to connect the terms "books and records" and "the Loan" (Agreement

§ 4.4[i]). And, as explained below, only JLJ offers an interpretation of this phrase

that accords the words of Section 4.4 their full and reasonable meaning and aligns

with the parties' reasonable expectations. Consequently, JLJ has plainly met its

prima facie burden establishing summary judgment on this issue, and Churchill has

failed to rebut that showing in response.

Although the phrase "relating to" is not defined in the Agreement, a review of

pertinent resources, such as dictionaries, provides guidance (see Mazzola v County

ofSuffolk, 143 AD2d 734, 735 [2d Dept 1988] ["it is common practice for the courts

of this State to refer to the dictionary to determine the plain and ordinary meaning

of words to a contract"]). Specifically, a consultation of these resources establishes

that the phrase "relating to" means "[t]o have some connection to," to stand in

relation to," or "[t]o establish a connection between" (Black's Law Dictionary [12th

ed 2024], relate; see also Merriam-Webster Dictionary, related

[https://www .merriam ·webster .com/dictionary/related [defining "related" as

"connected by reason of an established or discoverable relation"]; Coregis Ins. Co. v

Am. Health Found, Inc., 241 F3d 123, 128 [2d Cir 2001], quoting Webster's Third

New International Dictionary 1916 [1986] [explaining that the term "relation"-

which is "used esp[ecially] in the phrase 'in relation to"'-is "defined as a

'connection' to or a 'reference' to"D.

Notably, this is a definition that has been repeatedly interpreted to be broad

in its scope. For instance, the United States Supreme Court observed in the context

of its federal preemption analysis that "[t]he ordinary meaning of ["relating to"] is a

broad one-'to stand in some relation; to have bearing or concern; to pertain; refer;

to bring into association with or connection with"' (see Morales v Trans World

Airlines, Inc., 504 US 374, 383 [1992],). The New York Court of Appeals, in a

similar context, characterized the phase as having "expansive import" (see State of

N. Y. ex rel. Grupp v DHL Express (USA), Inc., 19 NY3d 278, 283·284 [2012]).

Finally, the First Department has construed arbitration clauses using the phrase

"relating to" as "broad" (see Matter of Wilh You, Inc. v Astilean, 98 AD3d 461, 462

[1st Dept 2012]).

Given this construction of the term "relating to," there is only one reasonable

interpretation of Section 4.4 that accords with the plain meaning of the phrase, is

sufficiently broad in scope, and, as a result, gives full effect to that provision's

otherwise clear and unambiguous terms. That interpretation is as follows: Church

shall maintain books and records that stand in some relation, have some

connection, or otherwise refer to the Loan, and those types of books and records

must be made available to JLJ for purposes of inspection, examination, audit, and

copying. In other words, if a document, whether financial or otherwise, contains

information about the Loan, it necessarily has some connection to or reference to

the Loan und Section 4.4 regardless of where and how it is specifically maintained

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by Churchill. Accordingly, under the plain terms of the Agreement, the Requested

Documents would be encompassed by Section 4.4. Such a conclusion is buttressed

by the fact that many of the documents encompassed by the Requested Documents

would contain information about the Loan, even if not specifically maintained

specifically in connection with the Loan (see e.g. Maheshwari tr 16:3, 20:21-21:19,

37:6-40:9, 38:14·21, 49:13-52:25, 54:7-14, 114:3-10, 159:12-161:25, and 178:21-

179:8).

The inclusion of the term "audit" further confirms the broad scope of Section

4.4. As defined in various resources, an audit is "[a] formal examination of an

individual's or organization's accounting records, financial situation, or compliance

with some other set of standards" or a "methodical examination and review"

(Black's Law Dictionary [12th ed, 2024], audit; Merriam-Webster Dictionary, audit

[https://www.merriam·webster.com/dictionary/auditD. And thus, when this term is

construed within the context of Section 4.4, it is evident that the parties would have

reasonably expected "books and records relating to the Loan" to include the

standard financial documents that are encompassed by the Requested Documents

(to the extent they contain information about the Loan). Indeed, these are the types

of financial records are what would allow JLJ to engage in the contracted-for formal

and/or methodical financial examination rights provided by Section 4.4. Any other

interpretation would essentially render the term "audit" meaningless or redundant

in light of JLJ's existing right to "inspect0" and "examin[e]" the books and records

already set forth in Section 4.4 (see generally Petersen v Metropolitan Life Ins. Co.,

81 AD3d 573, 573 [1st Dept 2011] [rejecting proposed interpretation of a section of

an insurance policy that failed to give full meaning and effect to that section]).

This above-referenced interpretation of Section 4.4 does not, as Churchill

argues, alter the scope of Section 4.4 so as to grant JLJ an unfettered right to

conduct a financial audit of Churchill's business without limit (see Opp at 12·15).

Rather, as the above makes clear, this interpretation retains the full scope and

reach of Section 4.4 by only granting JLJ access to those books and records,

wherever they would be found and maintained, reflecting information about the

Loan. To accept any other interpretation, including the one advanced by Churchill

in its opposition, would be to improperly narrow the scope of Section 4.4 by either

adding or excising terms from that provision ( Tutor Perini Corp. v City ofNew

York, 225 AD3d 439, 439·440 [1st Dept 2024] [holding that courts should not "write

into a contract conditions the parties did not include by adding or excising terms

under the guise of construction"]). 4

Having determined that JLJ met its prima facie burden that Section 4.4

encompasses the Requested Documents, and Churchill has failed to rebut that

4 Given that Section 4.4 is unambiguous, the court will not-and in fact cannot-consult the extrinsic

evidence submitted by the parties (see WWW Assoc., 77 NY2d at 162 ["Evidence outside the four

corners of the document as to what was really intended but unstated or misstated is generally

inadmissible to add to or vary the writing"]).

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showing, the conclusion can only be that JLJ has established Churchill's breach of

Section 4.4. Indeed, the undisputed record is clear that Churchill has largely failed

to provide JLJ with much of the Requested Documents and those documents would

contain information relating to the Loan (see pltf 19-a ,i,i 16·18; deft 19-a ,i,i 46-55;

NYSCEF # 130 at CH_0000167; Maheshwari tr 16:3, 20:21-21:19, 37:6-40:9, 38:14-

21, 49:13-52:25, 54:7-14, 114:3-10, 159:12-161:25, and 178:21-179:s). JLJ has

therefore established its entitlement to summary judgment on its breach of contract

claim.

That Churchill offers a competing interpretation of Section 4.4 does not

impact this result. Indeed, a "[m]ere assertion by one that contract language means

something to [it], where it is otherwise clear, unequivocal and understandable when

read in connection with the whole contract, is not in and of itself enough to raise a

triable issue of fact" ( Unisys Corp. v Hercules Inc., 224 AD2d 365, 367 [1st Dept

1996] [internal quotation marks and citation omitted]). Because the terms of the

Agreement are, in this case, clear, unambiguous, and only susceptible to one

reasonable interpretation, summary judgment is warranted.

JLJ separately seeks summary judgment on its second cause of action for

attorneys' fees pursuant to Section 7.10 of the Agreement, which provides that "[i]n

the case of a dispute under this Agreement, the non-prevailing party shall pay the

prevailing party's reasonable attorneys' fees and expenses in any action to enforce

this Agreement" (Agreement§ 7.10). Here, this lawsuit constitutes a dispute under

this Agreement and there is no serious disagreement that, given JLJ's entitlement

to summary judgment on its first cause of action, it is the prevailing party under

Section 7.10 (see MOL at 22; Opp at 21; Reply at 14). Accordingly, JLJ is granted

summary judgment on its second cause of action. An inquest shall be set to

determine the amount of fees and costs to be recovered from Churchill. 5

Conclusion

For the foregoing reasons, it is hereby

ORDERED that plaintiff JLJ Capital LLC's motion, pursuant to CPLR 3212,

for summary judgment is granted and the Clerk of the Court is directed to enter

judgment accordingly in plaintiffs favor on its first cause of action; and it is further

ORDERED, ADJUDGED, and DECREED that defendant Churchill Real

Estate Holdings LLC has breached the parties' participation agreement, entered

into as of July 11, 2019, by failing to produce the Requested Documents (as defined

above) and, as a result, defendant shall produce to plaintiff the Requested

Documents; and it is further

5 Given this court's disposition of JLJ's motion for summary judgment on its first cause of action,

that branch of JLJ's motion seeking to strike Churchill's affirmative defenses is denied as academic.

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INDEX NO. 656966/2022

NYSCEF DOC. NO. 177 RECEIVED NYSCEF: 01/07/2025

ORDERED that plaintiffs second cause of action is severed for an inquest to

determine the amount of fees and costs to be awarded; and it is further

ORDERED that, to facilitate this inquest, plaintiff shall present the Clerk of

the Court with a Note of Issue with Notice of Inquest, a copy of this Decision and

Order, and any necessary fees within 30 days from the date of this Decision and

Order; and it is further

ORDERED that, within 30 days of the filing of the Note of Issue with Notice

of Inquest, counsel for plaintiff shall serve a copy of this Order with Notice of Entry,

the Note of Issue with Notice of Inquest, and a completed Information Sheet, upon

the Special Referee Clerk in the General Clerk's Office (Room 119), who is directed

to place this matter on the calendar of the Special Referee's part; and it is further

ORDERED that such service upon the Special Referee Clerk shall be made in

accordance with the procedures set forth in the Protocol on Courthouse and County

Clerk Procedures for Electronically Filed Cases (accessible at the "E- Filing" page on

the court's website at the address www.nycourts.gov/supctmanh); and it is further

ORDERED that counsel for plaintiff is directed to serve a copy of this order,

together with notice of entry, upon defendant and the Clerk of the Court within 10

days of this order.

This constitutes the Decision and Order of the court.

01/07/2025

DATE MAR~,J.S.C.

CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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