The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, and 25 were read on this motion for SUMMARY JUDGMENT. DECISION + ORDER ON MOTION Upon the foregoing documents, it is hereby ordered that plaintiff’s motion for summary judgment pursuant to CPLR 3212 is granted in accordance with the following memorandum. Background In this action for breach of a commercial lease, plaintiff 933 Broadway, LLC (“plaintiff”) asserts three causes of action for breach of contract: for annual fixed rent (first cause of action), for additional rent (second cause of action), and for costs and reasonable attorney’s fees (third cause of action) against defendant Godiva Chocolatier, Inc. (“defendant”). Plaintiff now seeks summary judgment on its complaint. Pursuant to a lease dated May 23, 2019, plaintiff leased to defendant a portion of the ground floor and lower level of the building located at 933 Broadway, New York, New York (the “premises”) (NYSCEF Doc. No. 6, §1.1). Defendant was to use the premises as “a café for the sale by Tenant at retail and for off premises and on premises consumption of first quality chocolates, and retail sale for off premises and on premises consumption of food and nonalcoholic beverages” (id., §5.1). The commencement of the lease term and defendant’s obligation to pay rent were subject to completion of certain work by defendant in the premises, but the term was to last from the rent commencement date to “the last day of February immediately succeeding the sixth (6th) anniversary of the Rent Commencement Date (as hereinafter defined) occurs” (id., §1.2). Defendant began paying rent on July 1, 2019 (NYSCEF Doc. No. 8). The monthly fixed rent during the time relevant to this action is $40,000 (NYSCEF Doc. No. 6, §2.1(A). In addition, defendant agreed to pay additional rent of a proportionate share of real estate tax increases (id., §3.1). If defendant failed to pay either the fixed rent or additional rent when due, defendant agreed to pay a late fee of four cents per dollar of overdue rent, as well as interest of “four (4) percentage points above the rate then most recently announced by Citibank, N.A., New York, New York, or its successor, a its corporate base lending rate” annually from the date due to the date paid (id., §26.1). On March 17, 2020, defendant voluntarily closed the café located at the premises in response to the COVID-19 pandemic (NYSCEF Doc. No. 18, 8). Shortly thereafter, pursuant to the Governor’s Executive Order on March 20, 2020 (9 NYCRR 8.202.8), all non-essential businesses were required to close and on-premises dining was banned, which would have closed the café had defendant not done so itself (NYSCEF Doc. No. 18, 9). On July 20, 2020, the café reopened under the then present restrictions on gatherings and indoor dining, requiring masks, limited capacity, and pickup and delivery orders (NYSCEF Doc. No. 18, 11). Defendant continued to operate the café in this manner until it voluntarily shut down on November 6, 2020, as the COVID-19 restrictions then in effect “prevented orderly operations” (id., 12). At around the time the café reopened, the parties negotiated a First Amendment of Lease (id., 13). The amended lease provides that plaintiff would defer defendant’s fixed rent for April through June 2020, in the amount of $120,000 (NYSCEF Doc. No. 7, §2). Fixed rent payments would resume on July 1, 2020, and the deferred fixed rent would be paid back in ten installments beginning January 1, 2021 (id.). Defendant asserts that it paid the rent from July 1, 2020 through November 19, 2020, but that plaintiff never deposited the checks (NYSCEF Doc. No. 18, 14). Instead, roughly contemporaneous to the instant motion, plaintiff returned the checks to defendant with no explanation other than they had become “stale” (id.; NYSCEF Doc. No. 5, 12). At the time it commenced this action, plaintiff asserted that defendant owed outstanding fixed rent and additional rent of $200,000.00, for the period from July 1, 2020 through April 30, 2021 (NYSCEF Doc. No. 1, 15). Further, that defendant owed additional rent of $19,889.56 (id., 20). In support of its motion, plaintiff offers its rent ledger, and the affidavit of its managing agent to state that the total outstanding amount is now $511,159.86, including the returned checks, for totals of $490,000 in fixed rent, $13,973.30 in additional rent, and $7,186.56 in late fees (NYSCEF Doc. No. 5,
