Decided: January 18, 20181Recitation in accordance with CPLR 2219 (a) of the papers considered on the joint notice of motion by the defendants Alex Mulerman (hereinafter Mulerman), Branislava Silver (hereinafter Silver) and Apex Car & Limousine Service, Inc (hereinafter Apex) (jointly the defendants) filed on October 11, 2016, under motion sequence number eighteen for an order pursuant to CPLR 3212: (1) granting summary judgment in their favor on the issue of liability and dismissing the complaint of Sam Sherman (hereinafter Sherman); (2) granting summary judgment in their favor on the issue of liability on their five counterclaims as asserted against Sherman; and (3) awarding prejudgment interest, costs, disbursements and reasonable attorney’s fees. Sherman has opposed the motion.Notice of motionAffirmation in supportExhibits A-ZZMemorandum of law in supportMemorandum of law in oppositionSherman’s cross motion to dismiss the defendants’ counterclaimsAffirmation in support of Sherman’s cross motionExhibits A-VVReply affirmationDECISION & ORDERBACKGROUND
*1 On March 18, 2011, Sherman commenced the instant action for a declaratory judgment and money damages by filing a summons with notice with the Kings County Clerk’s office. On May 6, 2011, Sherman served a complaint on all the defendants. The defendants interposed a joint answer with counterclaims dated June 6, 2011. Sherman served a reply to counterclaims dated June 7, 2011. The complaint alleges eighteen allegations of fact in support of two causes of action. The first cause of action is for a judgment vacating a lease executed by Mulerman and Silver, as landlords and as members of Saba Realty Partners, LLC. (hereinafter Saba) with Apex as tenant (hereinafter the subject lease) and declaring the lease as void pursuant to Limited Liability Law §411. The subject lease was for a commercial real property known as 579 Smith Street, Brooklyn, New York and also known as 400 Hamilton Avenue (hereinafter the subject property) and the subject property was the sole income producing asset of Saba. The second cause of action is for money damages.By decision and order dated May 5, 2017, the Court, among other things, granted the defendants leave to interpose an amended answer with counterclaim. The proposed amended answer was dated December 26, 2015 and Sherman was deemed to be served with the amended answer when he was served with motion seeking such leave. By reply to the amended answer with counterclaim dated April 19, 2016, Sherman joined issue.The amended answer with counterclaims contained two hundred and twenty four (224) allegations of fact in support of eleven affirmative defenses and five counterclaims. The affirmative defenses included, failure to state a cause of action, lack of standing, unclean hands, statute of limitations, statute of frauds, release and payment, failure to mitigate damages, lack of proximate causation, lack of consideration, defendants’
