Conlon Holdings LLC v Chanos 2025 NY Slip Op 30011(U) January 3, 2025 Supreme Court, New York County Docket Number: Index No. 654768/2024 Judge: Joel M. Cohen 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. 654768/2024 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/03/2025
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M -----------------------------------------------------------------------------------X CONLON HOLDINGS LLC INDEX NO. 654768/2024
Plaintiff, MOTION DATE 09/12/2024 -v- MOTION SEQ. NO. 001 JAMES S. CHANOS,
Defendant. DECISION + ORDER ON MOTION -----------------------------------------------------------------------------------X
HON. JOEL M. COHEN:
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 were read on this motion for SUMMARY JUDGMENT IN LIEU OF COMPLAINT .
Plaintiff Conlon Holdings LLC (“Plaintiff”) moves for summary judgment in lieu of
complaint pursuant to CPLR 3213 against Defendant James S. Chanos (“Defendant” or
“Chanos”). The claim arises out of a December 31, 2018 Loan Agreement (the “Loan
Agreement”) entered into by Chanos and – under Plaintiff’s reading – The Limited Partners of
Kynikos Associates LP (the “Company”) “except for” James S Chanos LLC (defined
collectively as the “Lender”). According to Plaintiff, under the terms of the Loan Agreement,
Chanos agreed to repay $15,989,102.00 (the “Loan Amount”) to Lender immediately upon his
receipt of any proceeds from the sale of his properties that are set forth in the Loan Agreement.
Plaintiff alleges that Chanos sold the properties but has failed to make the required payments to
Lender.
Chanos opposed this motion and filed a cross-motion seeking to dismiss this action based
on Plaintiff’s lack of legal capacity to sue or, in the alternative, an Order pursuant to CPLR
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7503(a) staying this action and compelling arbitration. For the following reasons, Plaintiff’s
motion is denied and Chanos’s cross-motion is granted in part.
BACKGROUND
According to Plaintiff, Chanos & Company LP (f/k/a. Kynikos Associates LP) (the
“Partnership”) was founded in 1985 by Chanos and managed a variety of funds (NYSCEF 10
[“Nichols Aff.”] ¶1). The Partnership was controlled during all relevant time periods by Chanos
as the General Partner. Chanos directed the accounting of the Partnership (Nichols Aff. ¶¶2-3).
Plaintiff alleges that beginning in 2013, Chanos, in his individual capacity, began taking
monies from the Partnership, which he promised to repay with interest. From 2013 through
2018, Chanos allegedly made repeated promises to the Limited Partners that he would pay back
the amounts he took (Nichols Aff. ¶¶3-4).
To address concerns raised by the Limited Partners about Chanos's use of the funds, on
December 31, 2018, Chanos executed a loan agreement (the “Loan Agreement”) that designated
him as the Borrower of $15,989,102.00 (the “Loan Amount”) (Nichols Aff. ¶¶8-9). The Loan
Agreement provides as follows:
On December 31, 2018, One (1) individual known as James Chanos of 3 East 75th Street, New York, New York, 10021, referred to as the “Borrower”,
HAS RECEIVED AND PROMISES AS PREVIOUSLY STATED TO PAY:
The Limited Partners except for James S Chanos LLC of Kynikos Associates LP of 20 West 55th Street, 8th Floor, New York, referred to as the “Lender”, the sum of $15,989,102.00 US Dollars, referred to as the “Borrowed Money” . . . .
(NYSCEF 7 [“Loan Agreement”]).
The Agreement is signed by James Chanos as the Borrower and Brian Nichols (the
former CFO) on behalf of “Kynikos Associates LP.” (Loan Agreement at p 4). The Loan
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Agreement states that the full balance of the Loan Amount “including any accrued interest and
late fees, is due and payable immediately upon receipt of any proceeds by the Borrower from the
sale of Art Pieces, New York City Residence (3 East 756 Street, New York, NY 10021), Miami
Residence (100 S. Pointe Drive, Miami, FL 33139), and East Hampton Residence (70 Further
Lane, East Hampton, NY 11937), referred to as the ‘Due Date.’” (McGrath Aff ¶6; Loan
Agreement at p 1).
The Loan Agreement also provides that “[t]his loan shall be secured under the following:
The Borrower agrees to provide Art Pieces, New York City Residence (3 East 75th Street, New
York, NY 10021), Miami Residence (100 S Pointe Drive, Miami, FL 33139), and East Hampton
Residence (70 Further Lane, East Hampton, NY 11937), referred to as the “Security”, which
shall transfer to the possession and ownership of the Lender IMMEDIATELY if this Loan
should be in default” (Loan Agreement at p 1).
On May 8, 2019, Chanos acknowledged his obligations by signing a confirmation letter,
which provides:
I have contributed art in the amount of $12,495,359 with a $3.5 million line of credit to Kynikos Associates LP (the “Partnership”). The Partnership intends to sell the art and the proceeds will be used in partial satisfaction of my negative capital balance and my outstanding demand loan (see December 31, 2018 Loan Agreement). I will also contribute all cash proceeds received from the sale of my residences in New York City, Hampton sand Miami. This will confirm to each of you that if the Partnership receives proceeds from the sale of the art and personal residences that are less than the contributed art amount of $12,495,359; my negative capital balance; and my outstanding demand loan then I will personally contribute in cash an amount equal to each difference. These proceeds will be used to satisfy the art losses allocated to you and your outstanding capital owed to you and other limited partners of Kynikos Associates LP except for James S Chanos LLC.
(NYSCEF 8 [“Confirmation Letter”]).
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Plaintiff alleges that in or around March 2021, instead of paying monies to Lender under
the Loan Agreement, Chanos paid money to the Partnership and also contributed monies to avoid
a negative balance on the capital account of James S. Chanos, LLC (Nichols Aff. ¶16).
Plaintiff submits that Chanos owes more than $15,000,000.00 to Lender under the Loan
Agreement, with interest accruing (Nichols Aff. ¶21).
Plaintiff also asserts that on August 27, 2024, Nichols assigned his rights and the rights of
his Limited Partner entity, MMSBLLC, under the Loan Agreement to Plaintiff (Nichols Aff.
¶22).
DISCUSSION
I. Summary Judgment in Lieu of Complaint
Pursuant to CPLR 3213, a party may commence an action by motion for summary
judgment in lieu of complaint when the action is “based upon an instrument for the payment of
money only or upon any judgment” (Oak Rock Fin., LLC v Rodriguez, 148 AD3d 1036, 1039 [2d
Dept 2017]). An “instrument for the payment of money only” is one that “requires the
defendant to make a certain payment or payments and nothing else” (Seaman-Andwall Corp. v
Wright Mach. Corp., 31 AD2d 136, 137 [1st Dept 1968]; Weissman v Sinorm Deli, Inc., 88
NY2d 437, 444 [1996]). “Once the plaintiff submits evidence establishing its prima facie case,
the burden then shifts to the defendant to submit evidence establishing the existence of a triable
issue of fact with respect to a bona fide defense.” (Griffon V. LLC v 11 East 36th, LLC, 90 AD3d
705, 707 [2d Dept 2011]).
Here, Lender has submitted evidence that Chanos (i) executed the Loan Agreement, (ii)
confirmed the Loan in a May 8, 2019 Letter (the “Confirmation Letter”), and (iii) failed to repay
the Loan in accordance with the terms of the Loan Agreement (see NYSCEF 4 [Affidavit of
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Patrick McGrath [“McGrath Aff.”] ¶10]; NYSCEF 10 [Affidavit of Brian Nichols [“Nichols
Aff.”] ¶21]). Lender has also submitted an Assignment and Assumption Agreement indicating
that Brian Nichols assigned his rights and the rights of his Limited Partner entity, MMSB LLC,
under the Loan Agreement to Conlon Holdings LLC (NYSCEF 9; Nichols Aff. ¶22).
However, the expedited procedure of CPLR 3213 is not available here. First, as
Defendant argues, Plaintiff has not conclusively demonstrated standing to bring this action.
“[T]o have standing to sue to collect on the [loan agreement] a party must establish at least that it
is the holder, transferee, or assignee” (United Teletech Fin. Fed. Credit Union v Lau, 75 Misc 3d
1218(A) [Sup Ct, NY County 2022]). As noted, the Loan Agreement is signed by Brian Nichols,
the former CFO, as the “Lender” on behalf of “Kynikos Associates LP.” The address listed is the
address for Kynikos Associates LP. “The Limited Partners” is not otherwise defined in the
Agreement.
Plaintiff argues that Nichols executed the Loan Agreement on behalf of “Lender” – as
representative of each individual Limited Partner of the Company (except James S Chanos LLC),
and not on behalf of the Company. According to Plaintiff, on August 27, 2024, Conlon
Holdings, executed an assignment agreement with Brian Nichols and his Limited Partner Entity,
MMSB LLC, that assigned Nichols and MMSB LLC’s rights as Lender under the Loan
Agreement to Conlon Holdings. However, Plaintiff has not established conclusively that Nichols
or MMSB LLC1 had any rights under the Loan Agreement that they could assign. Even
assuming the Lender is all Limited Partners (except for Chanos’s own entity), it has not been
established that Nichols or MMSB LLC had authority to act on behalf of those Limited Partners
1 MMSB LLC is apparently a limited partner of the Company, but it is not identified anywhere in the Loan Agreement.
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(as a group) to assign all rights under the Loan Agreement to Plaintiff. Furthermore, the Loan
Agreement also provides that certain art and property are collateral under the Agreement, and
that Borrower “shall transfer to the possession and ownership of the Lender IMMEDIATELY if
this Loan should be in default.” (NYSCEF 7). Reading the “Lender” as each individual Limited
Partner (except for Chanos’s entity) creates uncertainty as to who the obligations are owed to.
Thus, Plaintiff has not carried its burden of demonstrating standing sufficiently to permit a grant
of summary judgment in lieu of complaint.
Second, Defendant submitted an affirmation in a different action in this Court (Conlon
Holdings LLC v Chanos & Co. LP (154908/2024 [Sup Ct, NY County 2024] [Patel, J.] [the
“TRO/PI Action”]) averring that he paid $16 million to the Company in March 2021 to repay the
loan (154908/2024, NYSCEF 42), attaching a copy of the wire confirmation as an exhibit
(NYSCEF 19).2 There appears to be no dispute that the funds were paid (NYSCEF 10 [“Nichols
Aff”] ¶16 [“In or around March 2021, instead of paying monies to Lender under the Loan
Agreement, Chanos paid money to the Partnership and also contributed monies to avoid a
negative balance on the capital account of James S. Chanos, LLC, Chanos' Limited Partner
entity”]). Rather, Plaintiff argues that the payment was made to the Company, not the Lender.
2 Relatedly, Defendant submitted that Mr. McGrath and Mr. Nichols, who have both submitted affidavits here, previously submitted sworn statements in the TRO/PI Action that characterized the loan as being owed by Mr. Chanos to the Company and claimed the Company was denied rights as “Lender” under the Loan Agreement (Index No. 154908/2024, NYSCEF 1 [“Verified Petition”] ¶¶4-5, 7, 11-12, 14, 30; NYSCEF 10 [“McGrath Aff.”] ¶¶3, 5, 7, 11, 14; NYSCEF 7 [“Nichols Aff.”] ¶¶5, 13). In that action, which was brought in aid of arbitration, the Court held that Plaintiff could not demonstrate a likelihood of success on the merits that it had standing to sue under the Loan Agreement, noting it was, among other things, “unpersuaded by [the Conlon Entities’] characterization of the Loan Agreement as unambiguous with respect to the contracting parties” because Plaintiffs had not established that the agreement is between Mr. Chanos and the ‘Limited Partners except for James S Chanos LLC,” leaving the issue open (Conlon Holdings LLC v Chanos & Co. LP, 83 Misc 3d 1261(A)*6 [Sup Ct, NY County 2024]).
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Given the Court’s finding that there remains a disputed issue as to which entity or persons has or
have standing to pursue repayment of the purported loan (to the extent amounts remain
outstanding), the Court need not go further into the parties’ arguments. This is not a dispute that
can or should be resolved under the expedited procedures of CPLR 3213 (Matas v Alpargatas
S.A.I.C., 274 AD2d 327, 328 [1st Dept 2000] [“It cannot be ascertained from the face of these
documents, without regard to extrinsic evidence, that plaintiffs have a right to repayment and,
accordingly, they do not possess an ‘instrument for the payment of money only’. Thus, this
action is not eligible for CPLR 3213 treatment”]).
Accordingly, Plaintiff's CPLR 3213 motion is denied.
II. Defendant’s Cross Motion3
Defendant’s cross-motion to dismiss the Complaint pursuant to CPLR 3211(a)(1) and
(a)(3), or alternatively to stay this action and compel arbitration, is granted in part.
Beginning with the cross-motion to dismiss, CPLR 3211(a)(1) provides that a party may
move for a judgment dismissing a claim on the ground that “a defense is founded upon
documentary evidence.” Such dismissal is warranted when the documentary evidence “utterly
refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law”
(Goshen v Mut. Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). Furthermore, pursuant to
CPLR 3211(a)(3), a party may move for judgment dismissing a cause of action on the ground
that “the party asserting the cause of action has no legal capacity to sue.”
3 A defendant may cross move to dismiss under CPLR § 3211 when a plaintiff moves for summary judgment in lieu of a complaint (see e.g., Payoneer Early Payments Inc. v Elimelech Sperber and E&S Journey, Inc., 81 Misc 3d 1236(A) [Sup Ct, NY County 2024]).
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Defendant argues that the Loan Agreement unambiguously establishes that the Company,
not Plaintiff, is the “Lender” under the Loan Agreement. However, as noted above, there is
legitimate dispute as to that issue, and therefore as to whether the Assignment and Assumption
Agreement constitutes a valid and complete assignment of the Loan Agreement. That issue
cannot be resolved on a motion to dismiss. Therefore, dismissal pursuant to CPLR § 3211(a)(1)
and (a)(3) is denied.
Defendant alternatively moves for a stay of the litigation and to compel arbitration under
the terms of the LPA. According to Defendant, there is a pending confidential Arbitration filed
by Plaintiff against James S. Chanos LLC, and another limited partner of the Company and its
principal, wherein Plaintiff is seeking to recover the receivable on the Company’s books and
records related to the loan, among other relief. Defendant submits that the details of the
Arbitration are confidential, but, consistent with the initial Arbitration demand that Plaintiff filed
with the Court in the TRO/PI Action, the Conlon Entities seek over $10 million, purportedly
representing the remaining principal amount of the loan receivable plus accrued interest, as well
as $9.5 million that the Conlon Entities had previously demanded (see Index No. 154908/2024,
NYSCEF 4 [In the Matter of the Arbitration between: Conlon Holdings LLC, Conlonbeithir LLC
v CHANOS & CO. LP, Kynikos Associates, LTD., James S. Chanos LLC, George Liberopoulos,
MJGM LLC, 12/29/23 Arbitration Demand]).
A party may move to compel arbitration pursuant to CPLR § 7503(a) if it is “aggrieved
by the failure of another to arbitrate” (CPLR § 7503(a)). Here, under the Company’s Tenth
Amended and Restated Limited Partnership Agreement (the “LPA”), all of the limited partners
of the Company, including Plaintiff, agreed to a broad arbitration provision.
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The LPA provides:
Except for requests of pre-arbitral injunctive relief or other equitable remedies or enforcement of an award or an arbitrator, all disputes and questions whatsoever between or among the parties to this Agreement or their legal representatives that shall arise during or after the term of the Partnership with respect to the rights, obligations and remedies hereunder of such parties or legal representatives or with respect to the construction or application of this Agreement or of the Partnership Law shall be submitted for arbitration in New York City under the rules of the American Arbitration Association. The expenses of arbitration (including fees and expenses of counsel) shall be borne by the party against whom the decision is rendered or apportioned in accordance with the decision of arbitrators in the event of a compromise decision. The decision of the arbitrators shall be final and binding upon the parties to such arbitration. Judgement upon any award may be entered in any court of competent jurisdiction.
(NYSCEF 20 §13.2 [emphasis added]).
Defendant argues that this dispute falls under the LPA’s arbitration provision because
Plaintiff purports to assert its (or MMSB’s) rights as a limited partner in enforcing the Loan
Agreement against a “legal representative” of another party to the LPA (i.e., Chanos as the legal
representative of James S. Chanos LLC). In response, Plaintiff asserts that “Chanos as an
individual and as Borrower here under the Loan Agreement is NOT a signatory to the Arbitration
Agreement” and accordingly “Borrower as an individual—[is] not covered by any provision.”
(NYSCEF 24 at 13).
“On motions to stay or compel arbitration, a threshold question for the motion court is
‘whether the parties made a valid agreement to arbitrate’” (Rural Media Group, Inc. v Yraola,
137 AD3d 489, 490 [1st Dept 2016], quoting Matter of County of Rockland [Primiano Constr.
Co.], 51 NY2d 1, 6 [1980]). “If the Court finds that a valid arbitration agreement exists, the next
question is whether the dispute comes within the scope of that agreement. The parties can, if they
choose, delegate to the arbitrator (rather than the Court) the job of making that determination”
(Gol v TNJ Holdings, Inc., 68 Misc 3d 1216(A) [Sup Ct, NY County 2020], citing Zachariou v
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Manios, 68 AD3d 539 [1st Dept 2009]). Here, the Court concludes that the arbitration provision
in the LPA is broad enough on its face to encompass claims by or against Mr. Chanos, who is a
“legal representative” of a signatory (James S. Chanos LLC).
That leaves the question whether the particular dispute involved in this case comes within
the scope of the arbitration agreement contained in the LPA. It is well settled that “[w]hile there
is generally a presumption that the issue of arbitrability will be determined by the courts, the
arbitrator decides the issue where the parties evince a ‘clear and unmistakable agreement to
arbitrate arbitrability as part of their alternative dispute resolution choice’” (Schindler v Cellco
Partnership, 200 AD3d 505, 505-06 [1st Dept 2021] [holding that “[t]he parties did, in fact,
make that agreement, since the AAA rules were incorporated into the parties’ arbitration
provision”]). Here, the parties incorporated the AAA rules into their arbitration clause (see LPA
§13.2 [“all disputes and questions whatsoever between or among the parties to this Agreement or
their legal representatives that shall arise during or after the term of the Partnership . . . shall be
submitted for arbitration in New York City under the rules of the American Arbitration
Association”] [emphasis added]). Therefore, consistent with those Rules, the parties chose to
delegate the issue of arbitrability to the arbitrator. Accordingly, this matter must be referred, in
the first instance, to arbitration.
Moreover, there is an alternative ground for staying this action even if this dispute was
not covered by the arbitration provision in the LPA. “Where arbitrable and nonarbitrable claims
are inextricably interwoven, the proper course is to stay judicial proceedings pending completion
of the arbitration, particularly where, as here, the determination of issues in arbitration may well
dispose of nonarbitrable matters” (Living Real Estate Group, LLC v Douglas Elliman, LLC, 220
AD3d 573, 574-75 [1st Dept 2023]). Here, the factual predicate for Plaintiff’s misappropriation
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claim in the Arbitration is the same as its version of the disputed facts in this action: that Mr.
Chanos purportedly has not repaid the loan. Indeed, in the TRO/PI Action, “[t]he Court
observe[d] that the arbitration panel will determine, among other issues, whether Respondents
have breached the Loan Agreement and/or Partnership Agreement” (Conlon Holdings LLC, 83
Misc 3d 1261(A)). Here, there is plainly a risk of inconsistent findings, and there is the potential
for arbitration to resolve this dispute in whole or in part.
Therefore, Defendant’s motion to compel arbitration is granted, and this action is stayed
pending arbitration (subject to a determination by the arbitrators whether the matter is arbitrable).
An alternative discretionary ground for staying this case is that the claims overlap with the
already pending Arbitration.
Plaintiff’s and Defendant’s respective requests for costs and sanctions are denied.
The Court has considered the parties’ remaining arguments and finds them unavailing.
Accordingly, it is
ORDERED that Plaintiff’s Motion for Summary Judgment in Lieu of Complaint is
DENIED; it is further
ORDERED that Defendant’s Cross-Motion to Dismiss or Alternatively, to Stay and
Compel Arbitration is GRANTED IN PART AND DENIED IN PART as follows: (i) the
cross-motion to dismiss is denied; (ii) the branch of the cross-motion seeking to compel
arbitration is granted and this action is stayed pending arbitration; (iii) the request for a stay
pending the arbitration titled In the Matter of the Arbitration between: Conlon Holdings LLC,
Conlonbeithir LLC v CHANOS & CO. LP, Kynikos Associates, LTD., James S. Chanos LLC,
George Liberopoulos, MJGM LLC, 12/29/23 Arbitration Demand (see Index No. 154908/2024,
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NYSCEF 4) is granted in the alternative; and (iii) the request for costs and sanctions is denied; it
is further
ORDERED that Defendant shall serve a copy of this Order with Notice of Entry upon
the Trial Support Office and the Clerk of the Court, who are directed to mark this action as
“stayed”; it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General
Clerk’s Office 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); and it is further
ORDERED that the parties shall file a status update by letter filing on NYSCEF within
six (6) months of the date of this Order.
This constitutes the decision and order of the Court.
1/3/2025 DATE JOEL M. COHEN, J.S.C. CHECK ONE: CASE DISPOSED x NON-FINAL DISPOSITION
□ GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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