The following e-filed documents, listed by NYSCEF document number (Motion 005) 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194 were read on this motion to/for PARTIAL SUMMARY JUDGMENT. DECISION + ORDER ON MOTION In this action arising out of the alleged default of plaintiff-tenant Booston LLC (plaintiff) under a commercial lease, defendant-landlord 35 West Realty Co., LLC (defendant) moves pursuant to CPLR 3212 (e) for an order (l) granting it partial summary judgment (i) dismissing the first and second causes of action in the complaint, (ii) declaring that plaintiff materially breached Article 9 of the lease rider by providing $1,000,000 in per occurrence insurance coverage rather than the required $2,000,000 per occurrence coverage, (iii) declaring that the lease was properly terminated and that plaintiff no longer has a right to possess the premises, (iv) granting judgment on its first counterclaim for ejectment, (v) dismissing the first through fifteenth affirmative defenses in plaintiff’s verified reply to landlord’s counterclaims, and (2) severing and continuing for disposition landlord’s second and third counterclaims which seek use and occupancy and attorney’s fees based on plaintiff’s material breach of the lease. Plaintiff opposes the motion and cross moves for summary judgment for the relief sought in the complaint, including a declaratory judgment adjudging and declaring that plaintiff is not in default under the lease, and for a permanent injunction enjoining landlord from terminating the lease. Background Plaintiff leased the cellar, basement, and first floor of the building located at 35 West 57th Street (the Premises) from landlord’s predecessor-in-interest Friedphil Realty Corp (Friedphil) pursuant to a lease agreement dated October 10, 2000 (the Lease) (NYSCEF # 151 at 1-23). The Lease was originally for a 20-year term beginning on October 31, 2000, and was purportedly amended in 2005, to add an additional 20 years to the lease term, or until October 31, 20401 (NYSCEF # 168 — Plaintiff’s Rule 19-a Statement, 1; NYSCEF # 172).2 Defendant became the lessor of the premises in or about 2008 (NYSCEF # 151 at 24-25). On July 10, 2019, defendant issued a 5-day Notice to Cure stating that plaintiff was in violation of Article 9 of the Rider to the Lease which requires plaintiff “to obtain public liability coverage against claims for bodily injury or death in the amount of $2,000,000 in a single limit or under an original policy with an umbrella” (NYSCEF # 151, Exh. A, Art. 9 at 11).3 Plaintiff, through its insurance broker, furnished defendant with certificates of insurance (COIs) annually for the policy years from 2014 to 2019. The COIs reflect that plaintiff maintained coverage in the amount of $1,000,000 “per occurrence” and “general aggregate” of $2,000,000, and named defendant as an additional insured (NYSCEF #147″Defendant rule 19-a Statement; NYSCEF # 153). Before July 2019, defendant did not object to the sufficiency of the insurance coverage or make any assertion that the coverage was not fully compliant with the Lease (NYSCEF # 167-Kohan Aff.
13-16). After receiving the Notice to Cure, plaintiff provided for an additional $1,000,000 of coverage, both per occurrence and in the aggregate, by way of an umbrella policy which brought the total coverage to $2,000,000 per occurrence and $3,000,000 aggregate (id., 17; NYSCEF # 178). Plaintiff commenced this action on July 29, 2019, seeking (i) a declaration that it did not violate any substantial obligation of its tenancy, and (ii) a Yellowstone injunction preventing defendant from terminating its tenancy pending a determination as to whether it violated any substantial obligations under the Lease (NYSCEF #1-Complaint). Plaintiff also moved by order to show cause for a Yellowstone injunction and sought a temporary restraining order (TRO) preventing defendant from taking any action to terminate the Lease (NYSCEF #’s 4-19). Defendant opposed the motion (NYSCEF #,”s 20-26); it also filed an answer and counterclaim for attorney’s fees (NYSCEF # 20-27), and subsequently amended the answer to add counterclaims for ejectment and use and occupancy (NYSCEF #33). In the meantime, by Decision and Order dated September 12, 2019, Hon. Andrew Borrok denied plaintiff’s motion for a Yellowstone injunction and vacated the TRO, finding that a default in obtaining insurance was not capable of being cured, and therefore, there was no basis for granting Yellowstone relief (NYSCEF # 30). Plaintiff appealed Justice Borrok’s decision and obtained an interim stay enjoining any termination of the Lease or eviction proceedings pending a decision on the appeal (NYSCEF # 36).4 The Appellate Division, First Department affirmed Justice Borrok’s decision, but noted that “denial of a Yellowstone injunction does not resolve the underlying merits of the dispute or whether the default requires termination of the lease” (Booston LLC v. 35 West Realty Co. LLC, 185 AD3d 508, 508 [1st Dept 2020]).5 By decision dated November 18, 2020, Hon. O. Peter Sherwood (ret.) granted a motion by the defendant to draw down the bond posted by plaintiff to pay past and future use and occupancy (NYSCEF # 58), and subsequently issued an order consistent with the decision (NYSCEF #90). By Decision and Order dated May 25, 2021, the First Department reversed, writing that the order to draw down on the bond for the alleged arrears in the payment of use and occupancy following the lifting of the stay pending appeal is tantamount to a grant of summary judgment to defendant on the ultimate relief sought in its counterclaim, despite the absence of a request for such relief in the motion and the fact that the claim has not been finally resolved. Although CPLR 6315 permits a party to recover damages sustained by the improper issuance of an injunction, the damages, if any, must await a determination on the merits…. ([Booston LLC v. 35 West Realty Co., LLC, 194 AD3d 609, 609-610 [1st Dept 2021]). Defendant now moves for partial summary judgment, arguing that because plaintiff’s incurable and material breach of the insurance requirements of Article 9 of the Lease rider are incontrovertible, it is entitled to a declaration that plaintiff is no longer entitled to continue to possess the Premises, a judgment of ejection restoring it to the Premises, and an order dismissing the plaintiffs first cause of action that it was not in default of insurance requirements, and the second cause of action for Yellowstone relief as moot. In support of its motion, defendant submits an expert affidavit of Robert Sterling who, upon reviewing the Lease and COIs, opines that: By providing coverage on a “per occurrence” basis in the amount of only $1,000,000.00, Landlord is underinsured by $1,000,000 for any one occurrence. This stands in contrast to the $2,000,000 single limit coverage, which was required under the Lease, and which would provide coverage against each and every occurrence during a policy period for the full amount of $2,000,000. Landlord is entitled to the insurance coverage required under the Lease and the $1,000,000 short fall in required coverage leaves Landlord exposed to direct and uninsured liability. The $2,000,000 aggregate limitation on the coverage as reflected in the Certificates is also problematic. A policy aggregate, which is not permitted by the Lease, expressly limits coverage up to but not greater than the aggregate limitation during any one insured period. Once the aggregate limitation is reached, whether on one or multiple occurrences in any one insurance period, no further coverage is available. (NYSCEF # 150-Sterling Aff.,
