The following e-filed documents, listed by NYSCEF document number (Motion 004) 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 57, 64 were read on this motion to/for JUDGMENT — SUMMARY. DECISION ORDER ON MOTION Upon the foregoing documents, and there being no opposition, Plaintiff 508 Columbus Properties LLC’s (“Landlord”) motion seeking (1) to amend the pleadings to conform to the evidence pursuant to CPLR §3025(c); (2) to dismiss Defendants Square to Spare LLC (“Tenant”), Big Gay Agenda LLC (“Big Gay Agenda”), and Bryan Petroff’s (“Petroff”) (collectively “Defendants”) affirmative defenses pursuant to CPLR §3211(b); (3) to obtain a money judgment pursuant to CPLR §3212 against Tenant on Landlord’s first cause of action in the amount of $305,023.07, and (4) a declaratory judgment pursuant to CPLR §3212 against Big Gay Agenda and Petroff (collectively “Guarantors”) declaring that Landlord may collect all amounts owed by Tenant from Guarantors is granted in its entirety. I. Procedural History Landlord filed its verified complaint on May 19, 2021 seeking a money judgment for rent and attorneys’ fees against Tenant and Guarantors (NYSCEF Doc. 1). All Defendants failed to answer or otherwise appear, and Landlord moved for default judgment on September 10, 2021 (NYSCEF Doc. 6). Shortly thereafter, on September 28, 2021, all Defendants moved for an extension of time to respond to Landlord’s motion for default judgment (NYSCEF Doc. 26). On October 20, 2021, Defendants filed a cross-motion to Landlord’s motion for default judgment seeking an extension of time to file an answer (NYSCEF Doc. 29). On October 27, 2021, both Landlord’s and Defendants’ motions were withdrawn (NYSCEF Docs. 32-33). Defendants filed their Answer on November 12, 2021 (NYSCEF Doc. 12). On December 29, 2021, Plaintiff Landlord filed the instant motion for summary judgment (NYSCEF doc. 37). On the same day, Defendants’ attorney moved to be relieved as counsel (NYSCEF Doc. 51). In a decision and order dated February 14, 2022, Defendants’ attorney’s motion seeking to be relieved as counsel was granted (NYSCEF Doc. 59). By order dated November 18, 2022, Justice Tisch remitted this motion to the General Clerk’s Office for reassignment to this part (NYSCEF Doc. 64). Defendants’ have not filed any opposition to Landlord’s motion for summary judgment. II. Factual Background Tenant operated Big Gay Ice Cream (the “Business”) at 516 Columbus Avenue (the “Premises”) pursuant to a lease agreement dated December 5, 2018 entered between Tenant and Landlord (NYSCEF Doc. 11). The lease term was set for 10 years until 2028 (id.). The Guarantors executed a guaranty of the Lease where they personally guaranteed all of Tenant’s lease obligations (NYSCEF Doc. 12). Tenant soon fell into arrears, causing Landlord to commence a Civil Court eviction proceeding (the “Civil Court Action”) in December of 2019 (NYSCEF Doc. 13). Landlord obtained a possessory judgment in the Civil Court Action on February 11, 2020 (id.) On March 5, 2020, Tenant entered into a stipulation with Landlord to pay rental arrears in the amount of $59,710.01 in installments commencing April 1, 2020, in exchange for staying the execution of the warrant of eviction (NYSCEF Doc. 14). Tenant defaulted on the stipulation, and Landlord could not enforce the warrant of eviction due to Covid-19 executive orders (NYSCEF Doc. 1 at 16). As of December 2021, Tenant owed $305,023.07 dating back to October 2019 (id. at 14). III. Discussion A. Leave to Amend Landlord seeks leave to amend the pleadings to conform to the evidence. Pursuant to CPLR §3025(b), absent prejudice, a party may amend its pleading at any time upon such terms as may be just. Moreover, CPLR §3025(c) provides that “the court may permit pleadings to be amended before or after judgment to conform them to the evidence, upon such terms as may be just including the granting of costs and continuances.” Leave to amend pleadings is freely granted in the absence of prejudice if the proposed amendment is not palpably insufficient as a matter of law (Mashinksy v. Drescher, 188 AD3d 465 [1st Dept 2020]). A party opposing a motion to amend must demonstrate that it would be substantially prejudiced by the amendment, or the amendments are patently devoid of merit (Greenburgh Eleven Union Free School Dist. v. National Union Fire Ins. Co., 298 AD2d 180, 181 [1st Dept 2002]). Delay alone is not sufficient to deny leave to amend (Johnson v. Montefiore Medical Center, 203 AD3d 462 [1st Dept 2022]). Here, there is no opposition, and no party has shown how they might be prejudiced by allowing Landlord to amend its pleadings to conform to the evidence. Therefore, under this lenient standard, Landlord’s motion to amend the pleadings is granted. B. Dismissal of Affirmative Defenses Landlord moves to dismiss Defendants’ four affirmative defenses pursuant to CPLR §3211(b). 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]). Defendants’ first affirmative defense, which is a mere sentence long, states that Landlord’s Complaint should be dismissed for failure to state a claim. This affirmative defense is meritless as Landlord has clearly stated a claim by laying out the alleged provisions of the Lease and Guaranty which have been breached (NYSCEF Doc. 1). Defendants’ second affirmative defense asserts waiver and unclean hands. However, as Landlord points out, paragraph 41 of the Lease (titled “No Waiver”) expressly provides that “the receipt by Landlord of rent…. with knowledge of the breach of any covenant of his Lease shall not be deemed a waiver of such breach and no provision of this Lease shall be deemed waived by Landlord unless such waiver be in writing signed by Landlord” (NYSCEF Doc. 44 at 41). As there is no writing signed by Landlord waiving any rights within the Lease, Tenant’s affirmative defense asserting waiver is dismissed (Wilmington Trust v. MC-Five Mile Commercial Finance LLC, 171 AD3d 591 [1st Dept 2019] [where agreement provided that waiver could only be effectuated by written instrument, plaintiff was not estopped from seeking remedies for defendant's default]). Defendants’ affirmative defense claiming Landlord’s claims are barred by Landlord’s unclean hands is conclusory, boilerplate, and devoid of even a scintilla of specificity; therefore, this affirmative defense is dismissed (366 Audubon Holding, LLC v. Morel, 22 Misc.3d 1108[A] [Sup. Ct., NY County 2008]). The third affirmative defense, which claims that Tenant is entitled to a set off in amounts owed based on improvements Tenant made to the property must be dismissed pursuant to the terms of the Lease. Indeed, paragraph 2 of the Lease expressly disallows any set off in the rent, while section (C)(9) of the Guaranty similarly states that Guarantors waive any right to assert any defense for a set-off in the rent (NYSCEF Docs. 44 at 2 and 45 at §[C][9]). Therefore, this affirmative defense, which is barred by operation of the Lease and Guaranty, must be dismissed. Finally, the fourth affirmative defense asserts equitable estoppel. However, again, this affirmative defense is merely stated in boilerplate and conclusory fashion. Defendants have not provided any further specification of this affirmative defense in opposition to Landlord’s motion. Therefore, this affirmative defense is also dismissed. C. Summary Judgment i. Standard Summary judgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact.” (Vega v. Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party’s “burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party.” (Jacobsen v. New York City Health and Hosps. Corp., 22 NY3d 824, 833 [2014]). Once this showing is made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial. See e.g., Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]; Pemberton v. New York City Tr. Auth., 304 AD2d 340, 342 [1st Dept 2003]). Mere conclusions of law or fact are insufficient to defeat a motion for summary judgment (see Banco Popular North Am. v. Victory Taxi Mgt., Inc., 1 NY3d 381 [2004]). To show prima facie entitled to summary judgment on a breach of contract claim, Plaintiff must prove the existence of a contract, Plaintiff’s performance, Defendant’s breach, and damages (see Markov v. Katt, 176 AD3d 401, 402 [1st Dept 2019]). “On a motion for summary judgment to enforce a written guaranty, all that the creditor need prove is an absolute and unconditional guaranty, the underlying debt, and the guarantor’s failure to perform under the guaranty.” (L. Raphael NYC Cl Corp. v. Solow Building Company, L.L.C., 206 AD3d 590, 592-593 [1st Dept 2022], quoting City of New York v. Clarose Cinema Corp., 256 AD2d 69, 71 [1st Dept 1998]). ii. Landlord Meets Its Prima Facie Burden Landlord has met its prima facie burden on its first cause of action seeking a money judgment for Tenant’s breach of the Lease. First, the existence of the Lease is not in dispute as Tenant has failed to provide any opposition to Landlord’s motion for summary judgment. Second, Landlord has performed under the terms of the Lease by allowing Tenant to occupy the Premises to operate its business. Landlord has demonstrated Tenant’s breach of the Lease by providing a rent ledger showing Tenant’s rent arrears (NYSCEF Doc. 48). Finally, Landlord has been damaged by not receiving amounts due and owing pursuant to the terms of the Lease. Landlord has met its prima facie burden on its second cause of action seeking to enforce the Guaranty against Guarantors. Landlord has proven the existence of an absolute and unconditional guaranty by submitting the Guaranty to which Guarantors are signatories (NYSCEF Doc. 45). Landlord has also proven the existence of the underlying debt of which Guarantors guaranteed payment (NYSCEF Doc. 48). Finally, as the guaranteed debt is still due and owing, Landlord has shown that Guarantors have failed to perform under the terms of the Guaranty.1 Landlord has proven it is entitled to attorneys’ fees on its third cause of action. Paragraph 44 of the Lease expressly provides that “in the event of any litigation between the parties regarding this Lease…the prevailing party in any such litigation shall be entitled to reasonable attorneys’ fees and disbursements and court costs” (NYSCEF Doc. 44). Likewise, section (C)(6) of the Guaranty provides that “in the event of any litigation between the parties regarding this Guaranty, the prevailing party in any such litigation shall be entitled to reasonable attorneys’ fees and disbursements and court costs.” (NYSCEF Doc. 45). As Landlord has prevailed on its first and second causes of action seeking money judgments against Tenant and Guarantors, Landlord is entitled to attorneys’ fees. iii. Defendants Fail to Raise a Material Issue of Fact As Landlord has met its prima facie burden, the burden now shifts to Defendants to raise a material issue of fact which requires a trial. Defendants fail to raise a material issue of fact, let alone submit opposition to this motion. Nor have any issues of material fact raised in any of Defendants’ filings which would preclude summary judgment in favor of Landlord. Thus, due to the lack of triable issues, summary judgment in favor of Landlord and against Defendants is appropriate. Accordingly, it is hereby, ORDERED that Plaintiff 508 Columbus Properties LLC’s motion pursuant to CPLR §3025(c) to amend the pleadings to conform to the proofs supporting the instant motion for summary judgment is granted; and it is further ORDERED that Plaintiff 508 Columbus Properties LLC’s motion to strike Defendants Square to Spare LLC, Big Gay Agenda LLC, and Bryan Petroff’s affirmative defenses is granted; and it is further ORDERED that Plaintiff 508 Columbus Properties LLC’s motion for summary judgment on its first cause of action seeking a money judgment against Defendant Square to Spare LLC is granted, and the Clerk of the Court is directed to enter judgment in favor of Plaintiff 508 Columbus Properties LLC and against Defendant Square to Spare LLC for rent arrears from October 2019 through December 2021 in the amount of $305,023.07, plus statutory interest from October 2019, in an amount calculated by the Clerk of the Court; and it is further ORDERED and ADJUDGED that Plaintiff 508 Columbus Properties LLC’s motion for summary judgment on its second cause of action against Defendants Big Gay Agenda LLC and Bryan Petroff is granted, and Plaintiff 508 Columbus Properties LLC may collect from Defendants Big Gay Agenda LLC and Bryan Petroff, jointly and severally, all amounts owed Plaintiff 508 Columbus Properties LLC by Defendant Square to Spare LLC, and the Clerk of the Court is directed to enter judgment accordingly; and it is further ORDERED that Plaintiff 508 Columbus Properties LLC’s motion for summary judgment on its third cause of action seeking attorneys’ fees jointly and severally against Defendants Square to Spare LLC, Big Gay Agenda LLC, and Bryan Petroff, is granted, and Plaintiff 508 Columbus Properties LLC is directed to submit an affirmation in support of attorneys’ fees, with sufficient supporting proofs, within 30 days of entry of this order via NYSCEF and by email to [email protected], with a copy to all parties to this lawsuit; and it is further ORDERED that any opposition to said affirmation shall be submitted within 10 days thereafter; and it is further ORDERED that within 10 days of entry of this decision and order, Plaintiff 508 Columbus Properties LLC shall serve a copy of this Decision and Order with notice of entry upon all Defendants via first-class mail, return receipt requested, at Defendants’ last known addresses. This constitutes the Decision and Order of the Court.
