Plaintiff seeks damages for an alleged breach of contract. Plaintiff moves, pursuant to CPLR 3212, for an order granting summary judgment. Defendants oppose the motion. For the following reasons this motion is denied.

In January 2017, defendant Crosswing Holdings LLC (Crosswing) retained plaintiff to assist it in securing financing, which ultimately took the form of an acquisition of Crosswing by Superior Crosslink Investments, L.P. (Superior).^[FN1] Defendants Asheesh Mahajan (Mahajan) and Rajeev Sharma (Sharma) held principal ownership interest in Crosswing until August 31, 2017. Plaintiff alleges that, pursuant to the engagement agreement, it is entitled to a separate "success fee" for each of several transactions it performed on behalf of Crosswing. Defendants dispute plaintiff's method of calculation of such success fees. The parties' primary dispute is over the categorization of funds received from Provident Bank. Plaintiff argues that $8 million obtained from Provident Bank was a new line of credit, and should be categorized as consideration as [*2]defined by the agreement. Crosswing argues that the funds in question represent the consolidation of two pre-existing loans, and should not be categorized as consideration for the purpose of calculating plaintiff's fees (see NYSCEF Doc. No 3).^[FN2]

For plaintiff's services, Crosswing agreed to pay plaintiff a monthly retainer of $5,000, plus a success fee for each transaction equal to the "greater of $150,000 (the "Minimum Success Fee") or the following percentages of total Consideration: 5.0% of [the] first $5 million, 4% of the next $5 million, and 3% of all Consideration above $10 million." The agreement defines the term "transaction" as "(i) the acquisition of material ownership in the Client by persons or entities, through stock purchase, asset purchase, or merger or consolidation of the Client, or otherwise, (ii) the re-capitalization of the Client, or (iii) the raising or securing of debt or equity for the Client" (see NYSCEF Doc. No. 53).

The agreement defines the term "Consideration" as follows:

"[T]he face amount of the debt and equity financing obtained in a Transaction (including any amounts unfunded at closing). This includes all cash and non-cash consideration received or paid in connection with a Transaction, including, without limitation, cash; debt and equity securities; notes; contingent payments; payments made in installments; royalty payments; the face amount of any financing obtained for the purchase of real estate to be leased or owned by the Client; and proceeds from the sale or lease of real estate owned by the Client. In a change of control Transaction, where the Client sells and Target acquires more than 50% of the ownership interests in the Client... Consideration shall also include the total value of the funded debt assumed or transferred to the acquirer in an asset or stock sale; assets of the Company, its subsidiaries and affiliates retained by the Client or its principal stockholders; and the value of any stock or other equity interest in the Company, its subsidiaries and affiliates retained by Client."

(NYSCEF Doc. No.53).

Plaintiff moves for summary judgment on the ground that there is no issue of fact regarding its entitlement to its "success fee" based upon the language of the contract and the circumstances presented. In opposition to the motion, defendants argue that material issues of fact prevent the granting of this motion. Defendants argue that there are questions as to the definition of key terms in the agreement.

A summary judgment movant must make a prima facie showing of entitlement to judgment as a matter of law and of the absence of any material issue of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). Once the movant makes this showing, the burden shifts to the party opposing the motion to prove the existence of material issues of fact requiring a trial (Pemberton v New York City Tr. Auth., 304 AD2d 340, 342 [1st Dept 2003]).

In support of its motion for summary judgment, plaintiff provides a sworn affidavit from Brian Moloney, its managing member and chief executive officer, attesting to the alleged [*3]transactions performed on behalf of Crosswing. Plaintiff attaches 69 exhibits that are mostly emails, without comments (NSYCEF Doc. Nos. 53-121). Plaintiff relies solely on the affidavit of Moloney, which, in this court's estimation, does not adequately address — or contextualize — the extrinsic documents plaintiff submits in support of its motion. In the court's view, plaintiff does not, on its motion, eliminate all material issues of fact.

"A written agreement that is clear, complete and subject to only one reasonable interpretation must be enforced according to the plain meaning of the language chosen by the contracting parties" (Brad H. v. City of New York, 17 NY3d 180, 185). "A contract is unambiguous if the language it uses has 'a definite and precise meaning, unattended by danger of misconception in the purport of the agreement itself, and concerning which there is no reasonable basis for a difference of opinion" (Greenfield v. Phillies Records, Inc., 98 NY2d 562, 569, citing Breed v. Insurance Co. of N. Am., 46 NY2d 351). There exists ambiguity within a contract where the language is imperfectly written so as to make the contract susceptible to more than one reasonable interpretation (see Brad H. v. City of New York, 17 NY3d at 186).

In this action, the agreement language is imperfectly written and is susceptible to more than one reasonable interpretation. Here, the "compensation for services" section of the agreement does not conclusively resolve the dispute over whether alleged consolidated debt is the same as new debt for the purposes of compensation. The affidavits of Moloney and the individual defendants set forth conflicting interpretations as to how compensation should be calculated. A jury or other trier of fact is required to weigh these conflicting interpretations — to consider both the substance and the credibility of the parties' respective presentations.

Plaintiff's argument claiming spoliation is unavailing.^[FN3] Under New York's common-law doctrine of spoliation, courts "possess broad discretion to provide proportionate relief to a party deprived of lost or destroyed evidence" (Pegasus Aviation I, Inc. v Varig Logislica S.A., 26 NY3d 543, 551 [2015]). A party seeking such relief must show that (i) the party against whom relief is sought had control over the evidence; (ii) the party with control over the evidence had an obligation to preserve it at the time of its destruction; (iii) the evidence was destroyed with a culpable state of mind, which may include negligence (see Strong v City of New York, 112 AD3d 15, 21 [1st Dept 2015]); and (iv) the destroyed evidence was relevant to the moving party's claim or defense (see Pegasus Aviation, 26 NY3d at 546). Plaintiff has failed to demonstrate that Crosswing was obligated to preserve emails and that the emails were deleted with a culpable state of mind and/or that the deleted emails were relevant to plaintiff's claims. Plaintiff has failed to establish that Crosswing was placed on notice to preserve the emails.

Accordingly, it is

ORDERED that plaintiff's motion for summary judgment is denied in its entirety.

This constitutes the Decision and Order of the court.