The following e-filed documents, listed by NYSCEF document number (Motion 001) 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62 were read on this motion to/for DISMISSDECISION AND ORDER In this action to enforce the guaranties of two so-ordered Stipulations of Settlement regarding two related commercial holdover disputes, plaintiff BP/CGCENTER II LLC moves: (1) to dismiss defendants Maria Sausa and Peggy Sausa’s six affirmative defenses and two counterclaims asserted in their capacity as guarantors pursuant to CPLR 3211; (2) for summary judgment pursuant to CPLR 3212 (b) on defendants’ liability, jointly and severally, per the Stipulations; and (3) to schedule a hearing on the issue of damages. The decision and order is as follows:FACTSThis action concerns enforcing two Stipulations of Settlement, agreed to by plaintiff landlord and defendants as guarantors that resolved two separate, but related, holdover proceedings in New York County Civil Court against two restaurants, Cuccina Too, and Restaurante. The restaurants occupied adjacent spaces in the Citigroup Center located at 153 East 53rd Street, New York, New York 10022 since 1998 (NYSCEF #12 — Levin Affidavit at
5-6). The restaurants are closely held corporations owned, operated, and maintained by defendants. Plaintiff claims that in January of 2015, it had informed defendants of the need to vacate the premises by January 31, 2016. However, defendants failed to vacate the premises on January 31, 2016, and plaintiff initiated holdover proceedings against both restaurants (id. at 10). The parties resolved the holdover proceedings by entering into separate but nearly identical so-ordered Stipulations of Settlement on August 18, 2016, which indicated that the vacate date would be January 31, 2017 (NYSCEF ## 19-20 — Stipulations of Settlement at 6). The stipulations were negotiated in anticipation of plaintiff’s major renovation of the building that was scheduled to begin on February 1, 2017 (Levin Affidavit at 15).The Stipulations provided detailed instructions for compliance by the restaurant entities to ensure that the vacate process went smoothly. Paragraph 16 of the Stipulations required the tenants to vacate the premises by the vacate date and leave the property vacant, broom clean, and required delivery of the keys and a Vacatur Affidavit by defendants to plaintiff (Stipulations at 16). The Stipulations also prohibited any application to modify or extend the vacate date, specifically preventing both parties from seeking any stays, injunctive relief, or declaratory relief in relation to the eviction warrant (id. at 22). Additionally, the stipulation contemplated default by the vacating tenants and included a liquidated damages provision, a provision for self-help, and attorneys’ fees related to any proceeding connected to the Stipulations or eviction process (id. at 18[iii-v]). The Stipulations also indicated that any “property remaining in the premises from and after the Vacate Date: (i) shall be deemed abandoned by [defendants]; and (ii) may be removed, retained and/or disposed of by [plaintiff] in its sole and absolute discretion…and at [defendants] sole cost and expense” (id. at 17). To ensure that the Stipulations were complied with, Maria Sausa and Peggy Sausa agreed to act as guarantors and they guaranteed “full and timely performance of the non-monetary obligations and monetary obligations under th[e] [Stipulations]” (id. at 9).However, on January 24, 2017, defendants filed an Order to Show Cause to extend the vacate date, in violation of 22 of the Stipulations. Judge Carol Feinman of the Civil Court, New York County, signed the first order to show cause with a return date of February 2, 2017 — two days after the vacate date. Plaintiff moved ex parte in the Appellate Term, First Department on January 30, 2017, to vacate the Order to Show Cause based on 22 of the Stipulations. On January 31, 2017, Justice Schoenfeld granted plaintiff’s application and vacated the Order to Show Cause (NYSCEF # 23 — J. Schoenfeld Order). Plaintiff retook the premises on February 1, 2017 pursuant to the self-help provision of the Stipulations. Defendants, however, again filed a second Order to Show Cause on February 1, 2017, which was left unsigned by Judge Feinman; rather, Judge Feinman instructed the parties to appear on February 2, 2017, for a conference to resolve outstanding issues. However, by the parties’ admissions, the meeting was unsuccessful and, thus, defendants were not granted an extension on the vacate date or the conditions of vacatur. Plaintiff contends that it experienced consequential and liquidated damages and is owed attorneys’ fees.Defendants inform that they sought to delay the vacate date because of issues at their new premises (NYSCEF # 56 — Maria Sausa Aff at 4). Defendants claim that plaintiff was unreasonable and would not adjust the vacate date at all. Defendants also claim that, upon reentering the premises, they found it demolished and that all of their equipment was removed (id. at 6). Additionally, defendants contend that plaintiff misrepresented facts to the Appellate Term (id. at 7). Defendants argue that they substantially performed on the Stipulations (id. at 14).MOTION TO DISMISSPlaintiff moves pursuant to CPLR 3211(a)(7) and (b) to dismiss defendants two counterclaims and first through sixth affirmative defenses. In deciding a motion to dismiss pursuant to CPLR 3211(a)(7), the court must liberally construe the pleading, accept the alleged facts as true, and accord the non-moving party the benefit of every possible favorable inference (see Leon v. Martinez, 84 NY2d 83, 87 [1994]; Goldman v. Metropolitan Life Ins. Co., 5 NY3d 561, 570 [2005]). “The court must determine only whether the facts as alleged fit within any cognizable legal theory” (Leon, 84 NY2d at 88). However, the court need not accept “conclusory allegations of fact or law not supported by allegations of specific fact” or those that are contradicted by documentary evidence (Wilson v. Tully, 43 AD2d 229, 234 [1st Dept 1998]).CPLR 3211(b) is governed by similar principles, wherein “plaintiff bears the heavy burden of showing that the defense is without merit as a matter of law. The allegations set forth in the answer must be viewed in the light most favorable to the defendant, and ‘the defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed’. Further, the court should not dismiss a defense where there remain questions of fact requiring a trial” (Granite State Ins. Co. v. Transatlantic Reins. Co., 132 AD3d 479, 481 [1st Dept 2015] [citations omitted]).Plaintiff’s motion is denied as to defendants’ first affirmative defense. Defendants’ boilerplate first affirmative defense — that plaintiff’s complaint “fails to state any cognizable cause of action” — is merely “surplusage” and “inclusion of such defense in an answer is not prejudicial” as this defense “may be asserted at any time even if not pleaded” (Riland v. Fredrick S. Todman & Co., 56 AD2d 350, 352 [1st Dept 1977]). However, it must be noted that such surplusage does not defeat summary judgment (see Citibank (S.D.) N.A. v. Coughlin, 274 AD2d 658, 659 [3d Dept 2000]).Plaintiff’s motion is granted as to defendants’ second and third affirmative defenses. Defendants’ second affirmative defense is that plaintiff’s exercise of the self-help provisions of the stipulation means that plaintiff “did not suffer any delay in the progress of the work as contemplated and did not sustain any damages” (NYSCEF #26 — Defts’ Ans with CCs at 22). Defendants’ third affirmative defense is that they did leave the premises on the vacate date and did not impede plaintiff’s right to demolish and renovate the premises (id. at 26).It is undisputed that plaintiff unilaterally exercised its right to self-help on February 1, 2017. It is also undisputed that defendants left equipment and other materials at the properties and did not deliver the keys or vacate documents, as per the Stipulations. As such, defendants have breached
