The following e-filed documents, listed by NYSCEF document number (Motion 001) 7, 8, 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 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER.) DECISION ORDER ON MOTION Upon the foregoing documents, and oral argument having been held virtually before the court on February 23, 2022, it is ordered that plaintiff’s motion is granted and the cross-motion of defendant Radulescu LLP (the “Tenant”) is denied. In this action to recover for breach of a lease agreement, plaintiff is the landlord of the building at 350 Fifth Avenue in Manhattan, and Tenant, a law firm, is the tenant of Suite 6910 at the building pursuant to a lease between them dated as of July 7, 2014. Defendants David Radulescu and Tigran Vardanian (the “Guarantors”) executed a guarantee of said lease on or about July 10, 2014. Plaintiff now moves pursuant to CPLR 3212 for summary judgment on its First, Third, Fourth, Fifth, Sixth, and Seventh Causes of Action, and for dismissal of defendants’ affirmative defenses. Defendants oppose the motion. Tenant cross-moves to compel arbitration and stay the instant action. Plaintiff opposes the cross-motion. It is well established that “the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.” Alvarez v. Prospect Hospital, 68 N. Y.2d 320, 324 (1986) (citing Winegrad v. New York University Medical Center, 64 N.Y.2d 851 (1985)). The party opposing a motion for summary judgment is entitled to all reasonable inferences most favorable to it, and summary judgment will only be granted if there are no genuine, triable issues of fact. Assaf v. Ropog Cab Corp., 153 A.D.2d 520, 521-22 (1st Dep’t 1989). Here, viewing the evidence in a light most favorable to the non-moving party, plaintiff has made a prima facie showing of entitlement to judgment as a matter of law. Defendants, while opposing the motion, fail to raise any triable factual issues sufficient to warrant its defeat. For example, the Tenant maintains that questions of fact as to the foreseeability of the Covid-19 pandemic would preclude summary judgment under the doctrines of impossibility of performance and frustration of purpose. The doctrine of impossibility or impracticability generally applies where performance is prevented by “the destruction of the means of performance by an act of God, vis major, or by law [citations omitted].” 407 E. 61st Garage, Inc. v. Savoy Fifth Ave. Corp., 23 N.Y.2d 275, 281 (1968). “…[W]here impossibility or difficulty of performance is occasioned only by financial difficulty or economic hardship, even to the extent of insolvency or bankruptcy, performance of a contract is not excused [citations omitted].” 407 E. 61st Garage, Inc., 23 N. Y.2d at 281. Further, “the impossibility must be produced by an unanticipated event that could not have been foreseen or guarded against in the contract [citations omitted].” Kel Kim Corp. v. Central Markets, Inc., 70 N.Y.2d 900, 902 (1987). The frustration of purpose doctrine applies where the frustrated purpose was “so completely the basis of the contract that, as both parties understood, without it, the transaction would have made little sense.” Crown IT Servs., Inc. v. Koval-Olsen, 11 A.D.3d 263, 265 (1st Dep’t 2004). See also, PPF Safeguard, LLC v. BCR Safeguard Holding, LLC, 85 A.D.3d 506, 508 (1st Dept 2011) (frustration of purpose applies “when a change in circumstances makes one party’s performance virtually worthless to the other, frustrating his purpose in making the contract”). Neither doctrine is applicable here. The subject lease (Affidavit in Support of Rodney Gomes, Exhibit A) specifically addresses the kind of circumstances occasioned by the pandemic, and sets forth the Tenant’s obligations at Article 21(A), which provides in pertinent part: If, by reason of (i) strike, (ii) labor troubles, (iii) governmental pre-emption in connection with a national emergency, (iv) any rule, order or regulation of any governmental agency, (v) conditions of supply or demand, (vi) conditions affected by, or actions (including without limitation any evacuation or closure of the Building) taken by Landlord or others reasonably intended to assure the health, security or safety of the Building or any person in response to, war, any act of terrorism or violence (even if not directed at the Building or any occupant thereof), or other national, state or municipal emergency (whether or not officially proclaimed by any governmental authority), (vii) unavailability of power or any disruption of electrical or any other utility service, or (viii) any other cause beyond Landlord’s control, Landlord does not fulfill any obligation under this Lease or shall be unable to supply any service which Landlord is obligated to supply, this Lease and Tenant’s obligation to pay rent hereunder shall in no wise be affected, impaired or excused. This lease provision contains a carve-out requiring the continued payment of rent in the instant situation, and as such defendant cannot use same to establish an issue of fact precluding summary judgment. Nor are the Guarantors’ personal guarantees unenforceable pursuant to New York City Administrative Code §22-1005(l)(b). Nothing in the “Declaration of legislative intent and findings,” which follow the statute, support a finding that the City Council considered a law firm to be a “non-essential retail establishment,” where the Council named non-food service establishments in the “retail trade sector” to include “the clothing stores industry, the furniture and home furnishings stores subsector, and the sporting goods, hobby, book, and music stores subsector.” The court does not find that entities such as law firms were intended to be included as part of the “retail trade sector.” As such, the Guarantors’ reliance on this statute is misplaced. Finally, Tenant’s cross-motion contends that plaintiff’s claims are subject to mandatory arbitration. However, the evidence before the court indicates that there is no basis for mandatory arbitration under the present circumstances. The subject lease provides arbitration as a remedy where Tenant disputes plaintiff’s statements as to any additional rent charges or real estate tax escalations, and Tenant gives notice to plaintiff of such dispute within 30 days of receiving such statements. (Gomes Affidavit, Exhibit A, Articles 2(C)(vii), 2(D)(iii)(d), 39) Tenant appears not to have given plaintiff timely notice of any dispute, and has not paid any disputed amounts pending resolution of the dispute. (Gomes Reply Affidavit,
