The following e-filed documents, listed by NYSCEF document number (Motion 003) 41, 42, 43, 44, 45, 46, 50, 51, 52, 53 were read on this motion to/for MISCELLANEOUS. DECISION AND ORDER ON MOTION In this landlord/tenant action, plaintiff Fifty East Forty Second Company LLC moves to reform and modify paragraph 8 of a stipulation of settlement dated August 24, 2021. Defendant Grand Central Physical Medicine & Rehabilitation P.C. opposes the motion. After consideration of the parties’ contentions, as well as a review of the relevant statutes and case law, the motion is decided as follows. FACTUAL AND PROCEDURAL BACKGROUND This action (Action No. 1) stems from an alleged breach of a written lease (the Lease) by defendant, the commercial tenant for Suite 1200 (the Premises) in a building owned by plaintiff located at 315 Madison Avenue, also known as 50 East 42nd Street, New York, New York. Plaintiff commenced this action against defendant on November 15, 2020 by filing a summons and complaint to recover unpaid rent and additional rent from August 2020 through November 2020 in the sum of $67,544.66, plus attorneys’ fees of not less than $10,000 (NY St Cts Elec Filing [NYSCEF] Doc No. 1, complaint
23 and 31). By decision and order dated May 7, 2021, this Court granted plaintiff’s motion for a default judgment and directed the Clerk of the Court to enter judgment against defendant in the sum of $67,978.41 plus prejudgment interest from August 6, 2020 (NYSCEF Doc No. 19). On June 1, 2021, the Clerk entered a judgment for plaintiff against defendant in the amount of $73,595.19 (NYSCEF Doc No. 24). The next day, June 2, 2021, plaintiff commenced a separate action captioned Fifty East Forty Second Co. LLC v. Grand Cent. Physical Medicine & Rehabilitation P.C., et ano., Sup Ct, NY County, Index No. 155324/2021 (Action No. 2) against defendant and nonparty William J. Gibbs, Jr. (Gibbs), the guarantor on the Lease, seeking to recover rent from December 2020 through April 30, 2021, the date defendant allegedly vacated and abandoned the Premises, and all rent due for the remainder of the Lease term (NYSCEF Doc No. 1, complaint, in Action No. 2). Plaintiff seeks a money judgment of $1,913,226.86 against defendant, a money judgment of $1,831,171.80 against Gibbs, and an award of not less than $10,000 for its legal fees (id.). Defendant and Gibbs have served and filed an answer in Action No. 2 (NYSCEF Doc No. 5, answer, in Action No. 2). On August 24, 2021, plaintiff and defendant executed a stipulation of settlement (the Stipulation of Settlement) settling Action No. 1, with defendant agreeing to pay plaintiff a settlement sum in installments by a date certain (NYSCEF Doc No. 43, David B. Rosenbaum [Rosenbaum] affirmation, Ex A at 1-2). Relevant to this motion is paragraph 8 of the Stipulation of Settlement, which reads: “This execution of this Stipulation of Settlement shall constitute a mutual general release between the parties, EXCEPT as to the obligations as set forth in this Stipulation of Settlement or any of Defendant’s obligations in connection with claims for indemnification and contribution arising from non-party claims for personal injury, property damage and/or wrongful death occurring at the Premises while Defendant occupied the Premises” (id. at 3) (extra spacing in original removed). Additionally, paragraph 14 of the Stipulation of Settlement provides as follows: “This Agreement supersedes any and all prior Agreements, representations o [sic] understandings (whether oral or written) between the parties concerning the Premises, Lease and Guaranty, and represents the entire, complete and fully-integrated understanding and agreement with respect to the subject matter hereof, and can only be amended, supplemented or changed by written document signed by all of the parties hereto” (id. at 4) (extra spacing in original removed). After Action No. 1 was marked disposed, plaintiff, defendant and Gibbs continued to litigate Action No. 2, with plaintiff filing a motion for summary judgment on September 23, 2021 (NYSCEF Doc No. 6, notice of motion, in Action No. 2), and defendant and Gibbs moving, by order to show cause, to vacate their default in opposing plaintiffs motion (NYSCEF Doc No. 19, proposed order to show cause, in Action No. 2). By so-ordered stipulation dated October 25, 2021, defendant and Gibbs agreed to withdraw their proposed order to show cause, and the parties agreed to restore the motion for summary judgment to the motion calendar and set a briefing schedule (NYSCEF Doc No. 23, stipulation, in Action No. 2). In opposing the motion for summary judgment, defendant and Gibbs argued that the mutual release language in paragraph 8 in the Stipulation of Settlement “explicitly released Defendants from their obligations under the Lease and Guaranty” (NYSCEF Doc No. 24, Ernest Wilson [Wilson] affirmation, 15, in Action No. 2). On November 18, 2021, plaintiff filed a notice withdrawing its motion without prejudice (NYSCEF Doc No. 34, notice, in Action No. 2). Action No. 2 remains active. Plaintiff now moves to reform the Stipulation of Settlement based on mutual mistake, arguing that the parties did not intend to settle or resolve Action No. 2, as evidenced by their conduct in continuing to litigate that action. In support of the motion, plaintiff’s counsel submits an affirmation describing his negotiations with defendant’s counsel. Defendant argues that on August 23, 2021, plaintiff’s counsel and defendant’s counsel orally agreed to settle Action No. 1 and that this agreement was reduced to writing (NYSCEF Doc No. 47, Wilson affirmation,
