The following e-filed documents, listed by NYSCEF document number (Motion 003) 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63 were read on this motion to/for JUDGMENT — SUMMARY. DECISION ORDER ON MOTION Upon the foregoing documents, Plaintiff D&D Building Company LLC’s (“Landlord”) motion for summary judgment against Defendant 206 E. 59th Street Garage Corp. (“Tenant”) is granted. I. Procedural Background Landlord filed its Complaint against Tenant on July 28, 2020, seeking ejectment, a money judgment for rent arrears, and attorneys’ fees (NYSCEF Doc. 1). Tenant filed its Answer on October 5, 2020, asserting fifteen affirmative defenses, the vast majority of which assert, in different manifestations, frustration of purpose and impossibility due to Covid-19 (NYSCEF Doc. 5). On May 10, 2021, Landlord filed a motion seeking use and occupancy pendente lite in the amount of $32,814.94 (NYSCEF Doc. 19). The motion was resolved via stipulation, wherein Tenant agreed to pay Landlord $35,428.67 per month beginning September 10, 2021 until this action was finally resolved by adjudication or stipulation (NYSCEF Docs. 34-35). These payments for use and occupancy were to be credited against amounts Tenant may owe under the Lease (id.) The note of issue was filed on March 31, 2022 (NYSCEF Doc. 38). Landlord made this motion for summary judgment on August 16, 2022 (NYSCEF Doc. 39). Landlord is seeking dismissal of Defendant’s affirmative defenses pursuant to CPLR §3211(b), a judgment of possession and issuance of a warrant of ejectment on its first cause of action, a money judgment in the amount of $538,071.45, and an award of attorneys’ fees (id.). II. Factual Background Landlord and Tenant entered into a written lease on January 23, 1984, commencing on February 1, 1984, and expiring on January 31, 2029 (the “Lease”) (NYSCEF Doc. 2). The Lease was for a parking garage on the ground floor, cellar, sub-cellar floor 1, and sub-cellar floor 2 at 210 East 59th Street (the “Premises”) (id.). Tenant was obligated to pay base rent, electric inclusion charges as additional rent, electric escalation charges as Additional rent, and water charges as additional rent (id.). Allegedly, Tenant defaulted in payment of base rent and additional rent beginning in April 2020 (NYSCEF Doc. 1 at 11). On June 4, 2020, Landlord sent Tenant a rent demand requesting $98,471.89, which represented unpaid base and additional rent then due and owing (NYSCEF Doc. 3). The rent demand provided Tenant with the option to either pay the amounts owed in full by June 25, 2020 or surrender possession of the Premises (id.). On June 19, 2020, Tenant paid $20,000 to Landlord but informed Landlord that Tenant was having difficulty projecting future revenue and that committing to a payment plan was “problematic” (NYSCEF Doc. 11). Thus, Landlord initiated this lawsuit on July 28, 2020 (NYSCEF Doc. 1). Since initiating of the lawsuit, Tenant’s financial documents produced in discovery show that Tenant’s profits have increased post-pandemic from their pre-pandemic levels (NYSCE Doc. 51). Tenant remains in possession of the premises, and the rent arrears have purportedly accrued to $538,071.45 (NYSCEF Doc. 40 at 38). In its memorandum of law in opposition to Landlord’s motion for summary judgment, Tenant argues that Landlord is in breach of paragraph 59 of the Lease and therefore summary judgment is inappropriate. Paragraph 59 of the Lease reads as follows: If at any time or times during the term of the Lease, the rents reserved in this lease shall not be fully collectable for reason of any order or regulation, or direction of a public officer or body pursuant to law then Tenant shall enter into such agreements and take such steps as Landlord may legally request to enable Landlord to collect the maximum rents which may from time to time during the continuance of such legal rent restriction be legally permissible (but not in excess of the amounts reserved under the Lease). Tenant argues that because of executive orders issued in March of 2020, paragraph 59 of the Lease was invoked and excused Tenant’s responsibility to pay full rent (NYSCEF Doc. 31). However, Tenant concedes in its memorandum of law that the executive orders issued by Governor Cuomo in March of 2020 that parking garages such as the one Tenant operated were considered essential transportation infrastructure which was allowed to remain open (id.). Tenant further asserts that paragraph 59 has a condition which requires Landlord to negotiate a new rent with Tenant when an executive order affects Tenant’s ability to pay rent, and since Landlord never negotiated a new rent, Tenant is not required to pay. In response, Landlord refutes Tenant’s interpretation of paragraph 59 (NYSCEF Doc. 32). Landlord argues that paragraph 59 only applies to a law that abates or regulates rent, not orders that may adversely impact Tenant’s business (id.). Landlord also points out that Tenant has not shown any regulation or executive order in response to Covid-19 that eliminated a commercial tenant’s obligation to continuing paying rent. III. Discussion A. Landlord’s CPLR §3211(b) Motion to Strike Tenant’s Affirmative Defenses The standard of review on a motion to dismiss pursuant to CPLR §3211(b) is similar to that used under CPLR §3211 (a)(7) (87th Street Realty v. Mulholland, 62 Misc3d 213, 215 [Civ Ct, New York City 2018]). The movant bears the burden of establishing the defense or counterclaim is without merit as a matter of law (534 E. 11th St. Hous. Dev. Fund Corp. v. Hendrick, 90 AD3d 541, 541 [1st Dept 2011]). This burden is a heavy one (Alpha Capital Anstalt v. General Biotechnology Corporation, 191 AD3d 515 [1st Dept 2021]). The allegations in the answer must be liberally construed and viewed in the light most favorable to the non-movant (182 Fifth Ave v. Design Dev. Concepts, 300 AD2d 198, 199 [1st Dept 2002]). It is inappropriate to dismiss a defense where there remain questions of fact requiring trial (Granite State Ins. Co. v. Transatlantic Reins. Co., 132 AD2d 479, 481 [1st Dept 2015]). However, conclusory and boilerplate affirmative defenses should be dismissed (Bankers Trust Co. v. Fassler, 49 AD2d 855[1st Dept 1975]; 366 Audubon Holding, LLC v. Morel, 22 Misc.3d 1108[A] [Sup. Ct., NY County 2008]). Tenant’s first through fourth, eighth, and fifteenth affirmative defenses all in one way or another deal with the doctrines of frustration of purpose, impossibility, or intervening acts due to Covid-19 and accompanying executive orders (NYSCEF Doc. 5 at
