# JLJ Capital LLC v. Churchill Real Estate Holdings LLC

> New York Supreme Court, New York County · January 7, 2025 · 2025 NY Slip Op 30056(U)

URL: https://www.frixlaw.com/law-library/cases/10785320

## Case

- **Court:** New York Supreme Court, New York County
- **Decided:** January 7, 2025
- **Citations:** 2025 NY Slip Op 30056(U)
- **Precedential status:** Unpublished
- **Opinion:** Opinion by Margaret A. Chan
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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Motion No. 003

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10785320. Public record. Not legal advice.