CPLR 2219(a) RecitationMotion and affidavits, Memo of Law, Exhibits 1-2, 3, 4-12Opposition/Cross-motion, Exhibits 13-16, 17-39Reply, Memo of Law, Exhibits 40, 41, 42-46DECISION & ORDER Petitioner-Sublandlord Kate Spade & Company, LLC commenced this commercial summary nonpayment proceeding against Respondent-Subtenant G-CNY Group LLC to recover 1440 Broadway, Fourth Floor, New York, New York 10018 (the “Premises”). Subtenant now moves pursuant to CPLR 3212 for summary judgment dismissing the Petition (sequence 001). Sublandlord cross-moves pursuant to CPLR 406, 3212, and/or 3211 for judgment on the Petition and to dismiss ten of Subtenant’s thirteen affirmative defenses and its sole counterclaim (sequence 002). For the reasons below, Subtenant’s motion to dismiss is denied, Sublandlord’s motion for summary judgment is granted, possessory and monetary judgment shall be entered for Petitioner-Sublandlord, and the matter shall be scheduled for an attorneys’ fees hearing.BACKGROUND FACTSSubtenant has conceded nonpayment of rent and additional rent (Resp/Wurm Aff 22). Sublandlord leased the Premises from Overlandlord Investment Properties Associates in 1997 (Pet’r Exh D, [the "Overlease"]; Pet’r/Kopelowitz Affirm 14[a]). Sublandlord and Subtenant negotiated and ultimately executed a sublease for the Premises on or about December 31, 2017 (Pet’r Exhs E/Resp Exh B [the "Sublease"]). The Sublease was effective February 6, 2018, upon Overlandlord’s consent and subject to a five-month rent abatement (Pet’r Exh F/Resp Exh C [the "Consent"]; Sublease 1; Pet’r/Bates Aff 19).1 During negotiations, and prior to execution of the Sublease, Sublandlord’s broker emailed Subtenant a list of approved contractors, together with a statement that “any reputable [general contractor] can be used, and [the Overlandlord] would ask for references if they don’t recognize” the contractor (Resp/Wurm Aff 6, citing Resp Exh A [the "Broker Email"]).Current monthly rent is $72,794.40 (Sublease 1[b]). In addition to monthly rent, Subtenant is responsible for additional rent, defined as “any and all amounts other than Fixed Rent and [Paragraph] 24 Rent which, by the terms of the Overlease, become due and payable by Sublandlord to Overlandlord as additional rent or otherwise with respect to the Premises…”(Sublease 18). Such charges include, among other things, those “attributable to the Premises or the use thereof or services or utilities provided thereto,” “any additional charges to Subtenant on account of Subtenant’s use of cleaning and elevator services after hours or in excess of normal usage,” and the “cost of cooling towers, water and electric, serving the HVAC units, as well as maintenance of the units” (id.). Subtenant is also responsible for utilities, payable as “108 percent of the amount shown on the electric submeter measuring Subtenant’s electric usage and consumption” at the Premises (Sublease 20).The Sublease incorporates the Overlease:all of the terms, covenants, conditions and provisions in the Overlease are hereby incorporated in, and made a part of this Sublease, and such rights and obligations as are contained in the Overlease are hereby imposed upon the respective parties hereto; the Sublandlord herein being substituted for the Landlord named in the Overlease, and the Subtenant herein being substituted for the Tenant named in the Overlease…(3; see also Resp Exh C
7, 11).Thus, pursuant to the Overlease, if Subtenant is late paying rent and/or additional rent, Subtenant is responsible for a late fee, calculated as the Chase Manhattan Bank, N.A. prime rate plus 3 percent (Overlease 42[A]). Similarly, Sublandlord is entitled to legal expenses and fees incurred in seeking arrears (Overlease 5).The Sublease memorializes the parties’ agreement that Subtenant was taking the Premises “as-is” and would require renovation, the sole obligation for which would fall upon Subtenant (Sublease 5). Any renovations, however, would require the approval of both Overlandlord and Sublandlord, whose consent “shall not be unreasonably withheld” (Sublease 23).The crux of the dispute, and Subtenant’s defense, is Sublandlord’s alleged violation of — in Subtenant’s words — the “very essence” of the deal by not allowing Subtenant to perform renovations on the Premises utilizing “open shop” contractors; that is, contractors which do not mandate union membership and which are, therefore, generally cheaper. According to Subtenant, the parties had an understanding that Sublandlord would be permitted to utilize open shop contractors to capitalize upon cost savings and therefore render the renovation economically viable (Resp/Wurm Aff 20). Sublandlord disputes that characterization.In the days and months after the February 6, 2018 Consent, the parties discussed access to and work on the Premises (Pet’r/Bates Aff
