The following e-filed documents, listed by NYSCEF document number (Motion 001) 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER). DECISION + ORDER ON MOTION Plaintiff moves: (i) for summary judgment against defendants Beer Factory LLC, Franios Halkiadakis, Georios Tzikas, and Constantinos Alexiou (collectively, the “Non-Defaulting Defendants”); and (ii) for a default judgment against defendant Sakis Pitsionas. The Non-Defaulting Defendants cross-move for leave to serve and file an amended answer and counterclaim. Background: Plaintiff is the owner of commercial real property located at 104 Second Avenue, New York, New York. By written lease dated August 11, 2015, plaintiff leased that property to defendant Beer Factory LLC for anticipated use as a restaurant (see, NYSCEF Doc. No. 14). The term of the lease was for ten years, ending on July 31, 2025 (id.). The individual defendants guarantied Beer Factory’s obligations under the lease by written guaranties (NYSCEF Doc. Nos. 15-18). The complaint ( 25) alleges that Beer Factory vacated the premises prior to the expiration date of the lease, in November 2017, without satisfying the pre-expiration surrender conditions found at paragraph 8 of the guaranties. That paragraph is reproduced in full, directly hereafter: Notwithstanding anything contained herein, if (a) Tenant is in good standing and is not in default beyond applicable notice and cure periods under any of the terms of the Lease both when (1) the Surrender Notice (referred to below) is given to the Landlord and (2) on the Final Day (defined below), and (b) Tenant gives written notice (“Surrender Notice”) by certified mail, return receipt requested or by reputable overnight carrier with signature requested, to the Landlord at Landlord’s address in the same manner as set forth in the Lease that Tenant will vacate the Premises on the last calendar day (the “Final Day”) of the 5th (fifth) calendar month after the month in which the Surrender Notice is actually received by the Landlord, and (c) Tenant performs all of the conditions set forth in subparagraphs (i) through (viii) below (the “Release Conditions”), on or before the Final Day, TIME AND TENANT’S PERFORMANCE BEING OF THE ESSENCE, then (and only in such circumstances) Guarantor shall be released from liability under this Guaranty accruing after the Final Day. The Release Conditions are as follows, i.e., Tenant shall have: (i) Vacated and surrendered the Premises to the Landlord, in broom clean condition, free from any occupancies and in the condition called for on the expiration of the Lease term; and (ii) Delivered the keys and all alarm codes relating to the Premises to the Landlord; and (iii) Delivered to Landlord a duly executed and notarized surrender of lease (a form of which is annexed hereto as an exhibit); and (iv) Paid to Landlord all Rent and Additional Rent, including court costs and reasonable legal fees incurred by the Owner through the Final Day; and (v) Delivered reasonable proof to the Landlord that there are no Mechanic’s Lien(s) filed or recorded against the Premises; and (vi) Complied with provisions of Paragraph 82 of the Rider to the Lease; and (vii) Paid to Landlord the unamortized portion of all broker’s fees or commissions paid by the Landlord in connection with the Lease, such amortization to be determined as of the Final Date; and (viii) Paid to Landlord an amount equal to any rent credit, abatement or concession received by Tenant between lease execution and the Final Date. If Tenant has not strictly complied with all of the requirements as set forth in this Article 8, on or before the Final Day, then Guarantor agrees and acknowledges that the provisions of this Article 8 shall be null and void and of no force and effect as if they were not including in the Guaranty and all of the other provisions of this Guaranty shall remain in full force and effect. Nothing contained in this Guaranty shall be in any way construed or deemed to create any right by the Tenant to terminate, cancel and/or surrender the Lease prior to the expiration of the Term thereof and the provisions of this Article shall operate solely to limit the liability of the Guarantor in the event the Tenant vacates the Premises prior to the expiration of the Term in strict conformance with all the terms and conditions of this Article 8. (NYSCEF Doc. No. 14 at 27-28.) The complaint (
