The following e-filed documents, listed by NYSCEF document number (Motion 003) 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, and 187 were read on this motion IN LIMINE. DECISION ORDER ON MOTION Upon the foregoing documents, the motion of plaintiff 90th Street Corp. (“Plaintiff”) in limine, and the cross-motion of defendant 203 West 90th Street Retail, LLC (“Defendant”), in limine, are determined as follows. Background On December 1, 2013, Plaintiff, as tenant, and Defendant, as owner and landlord, entered into a commercial lease agreement for the store and basement located at 620 Amsterdam Avenue, New York, New York (the “Premises”).1 In or about November 2014, Plaintiff approached Defendant “for an amicable surrender of the lease” because Plaintiff was unable to meet its Lease obligations (Decision and Order of Hon. David B. Cohen dated November 4, 2019 [NYSCEF Doc 188] at 1). In early 2015, Defendant commenced a nonpayment proceeding against Plaintiff in Civil Court, New York County, captioned 203 W. 90th St. Retail, LLC v. 90th St. Corp. (index No. 050551/2015) (id. at 2). The parties subsequently executed a stipulation of settlement (the “Stipulation”) in the nonpayment proceeding (id.). Under the terms of the Stipulation, Plaintiff consented to a final judgment of possession in Defendant’s favor, but Defendant agreed to refrain from executing a warrant of eviction if Plaintiff paid $60,000 in use and occupancy “in advance” for six months beginning January 2015 (id.). The Stipulation further required Plaintiff to vacate and return the Premises in “broom clean condition and free of all…tenant’s property” (id.). Finally, the Stipulation provided that if Plaintiff complied with all these terms and timely vacated the Premises, Defendant would return Plaintiff’s security deposit (id.). Plaintiff ultimately vacated the Premises on May 13, 2015, and Defendant refused to return the security deposit because (1) Plaintiff failed to pay use and occupancy for May and June 2015; and (2) Plaintiff failed to vacate and leave the Premises in the condition required under the Stipulation (id. at 3). Plaintiff commenced this action, asserting a single cause of action for breach of the Stipulation and seeking restitution of its $316,668.68 security deposit (NYSCEF Doc 2 21). Defendant answered the complaint and interposed three counterclaims for (1) damages in the amount of $1,583,333.40 for monthly rent due from May 2015 through December 2016; (2) alleging that Plaintiff damaged the Premises by removing fixtures belonging to Defendant, including the HVAC system, shelving, and refrigerated display cases; and (3) for legal fees, costs, and expenses under the Lease (NYSCEF Doc 36
