Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Numbered Order to show Cause/ Notice of Motion and Affidavits /Affirmations annexed 1 Answering Affidavits/ Affirmations 2 Reply Affidavits/ Affirmations 3 Memoranda of Law Other Decision/Order Upon the foregoing cited papers, the Decision/ Order on the Motion is as follows: In this commercial nonpayment proceeding, petitioner-landlord seeks summary judgment against respondent-tenant Barry A. Weinstein only, and seeks to discontinue this proceeding against all other respondents in this proceeding. For the reasons set forth below, the instant motion is granted in part and denied in part, and this proceeding is scheduled for trial to resolve outstanding issues of fact pursuant to CPLR 3212(g). As to that branch of petitioner’s motion seeking a discontinuance without prejudice as against respondents Goldstein & Weinstein; Michael Nedick, Schwartzapfel Lawyers; Steven J. Schwartzapfel; Christopher Holbrook d/b/a Schwartzapfel Lawyers; Michael Reiner d/b/a Schwartzapfel Lawyers, J. Doe #1; J. Doe #2; J. Doe #3; J. Doe #4; XYZ Corp #1; and XYZ Corp. #2 without prejudice (see, CPLR 3217(b)), respondents do not oppose and, accordingly, the Court grants that branch of petitioner’s motion. (Aff. in Opp., 1). To the extent respondents’ answer asserted counterclaims on behalf of these now-discontinued respondents (other than respondent Weinstein), which is unclear from both the answer itself and the papers in the instant motion, the Court notes its discretion pursuant to CPLR 3217(b) to impose terms and conditions upon granting a discontinuance without prejudice after an answer has been filed, and will similarly discontinue any counterclaims in this action asserted by respondents Goldstein & Weinstein; Michael Nedick, Schwartzapfel Lawyers; Steven J. Schwartzapfel; Christopher Holbrook d/b/a Schwartzapfel Lawyers; Michael Reiner d/b/a Schwartzapfel Lawyers, J. Doe #1; J. Doe #2; J. Doe #3; J. Doe #4; XYZ Corp #1; and XYZ Corp. #2 without prejudice. As to that branch of petitioner’s motion seeking summary judgment as against respondent Weinstein, respondents oppose based upon the affirmative defenses and counterclaims pled, and that portion of the motion is granted in part and denied in part.1 There is no dispute that Weinstein leased the subject premises — a law office — from petitioner. (Aff. in Supp., Exs. C and D). Nor is there any apparent dispute concerning the amount of unpaid rent. (Aff. in Supp., Ex. E). Petitioner also does not, apparently, dispute the seemingly poor condition of the premises. (Aff. in Supp,
20-24; Mem. of Law in Supp., at 5-6; and Mem. of Law in Reply, at 2). However, the parties vigorously dispute their respective rights and obligations under the lease — a Blumberg standard form lease (the “Lease”) as modified by an additional rider (the “Rider”) and the parties’ signed option agreement (the “Option Agreement”) — and the impact of these documents upon the amount to which Weinstein’s outstanding rent should be abated, if any, which the Court addresses in turn after having searched the record.2 Respondent’s Ability to Assert Affirmative Defenses and Counterclaims in This Proceeding As a threshold matter, petitioner asserts that Weinstein may not assert counterclaims or affirmative defenses in this proceeding. (Mem. of Law in Supp., at 5; and Mem. of Law in Reply, at 4). Petitioner is wrong. RPAPL § 743 permits respondents in summary landlord/tenant proceedings to interpose counterclaims. While tenants may waive their right to interpose affirmative defenses and counterclaims — which petitioner asserts Weinstein did — any such waiver much be clear and unmistakable. See, P.S. 85th St. F.L.P. v. Demos, 17 Misc. 3d 1139(A), *1 (Civ. Ct., Kings Co. 2007). In support of waiver, petitioner offers paragraph 36 of the Rider, which states in relevant part that “[a]ll rent shall be paid to Landlord without notice, demand, counterclaim, setoff, deduction or defense, and nothing shall suspend, defer, diminish, abate or reduce any rent, except as otherwise specifically provided in this lease or as provided by law.” Courts have considered and rejected this specific type of waiver language to pay the stipulated rent without offsets or deductions as ambiguous and insufficiently clear to constitute a broad waiver of the right to interpose affirmative defenses or counterclaims for decades. See, e.g., Witthattan Realty Co. v. H. Abraham, Inc., 18 Misc. 2d 239, 239-240 (App. Term, 2d Dept. 1959), affd. without op., 10 A.D.2d 721 (2d Dept.), Iv. denied, 10 A.D.2d 874 (2d Dept. 1960) (tenant’s agreement to pay stipulated rent without offset or deduction, without more, is not a waiver of a tenant’s statutory right to assert offsets or deductions). See also, 3 Rasch’s Landlord & Tenant Including Summary Proceedings (4th ed.) (Dolan, ed. 1998; Supp. 2005); and Friedman on Leases § 5.102 A., Covenant to Pay Rent Without Offset or Deduction (1997). Additionally, the modifying clause at the end of the purported waiver provision — “except as otherwise specifically provided in this lease or as provided by law” — greatly limits the scope of the preceding clause’s waiver, as defenses and counterclaims are expressly permitted by law pursuant to RPAPL §743. See also, NFL Enters. LLC v. Comcast Cable Communications, LLC, 51 A.D.3d 52, 61 (1st Dept. 2008), quoting Pepco Contr. of New York, Inc. v. CNA Ins. Co., 15 A.D.3d 464, 465 (2d Dept. 2005) (ambiguous contract terms preclude summary judgment). Further, even if, arguendo, Weinstein is precluded from asserting counterclaims by the terms of the lease, that is a separate question from whether Weinstein may assert affirmative defenses to petitioner’s claims. Petitioner’s suggestion that respondent would not only be precluded from asserting counterclaims but also barred from asserting affirmative defenses (such as abatement) would, even if supported by the express text of the lease agreement (which it is not) be contrary to the plain text of RPAPL § 743 and likely unconscionable. See, Squadron Bvld. Realty Co. v. Emrite, Inc., 99 Misc. 2d 975, 976-977 (Rockland Co. Ct. 1979).3 Accordingly, the Court finds that Weinstein’s counterclaims are not barred. Even if they were, Weinstein asserts grounds for abatement that are essentially an affirmative defense. Abatement for Violations of the Warranties of Quiet Use and Enjoyment and Habitability Petitioner asserts that, as a commercial tenant, Weinstein does not benefit from the implied warranties of habitability and quiet use and enjoyment. (Mem. of Law in Supp., at 5-6; and Mem. of Law in Reply, at 2-3). While this may be correct, with regard to implied warranties of habitability and quiet use and enjoyment in a commercial setting, there is nothing that precludes commercial parties from consenting to an express right to quiet use and enjoyment in their lease agreement. In this instance, the Lease expressly provides that “Tenant shall quietly enjoy the demised premises.” (Lease, Landlord’s Covenants, 1). Further, petitioner concedes that a violation of the warranty of quiet use and enjoyment rising to the level of constructive eviction would form the basis of a viable claim even under petitioner’s interpretation of the lease. (Mem. of Law in Reply, at 2-3). Thus, Weinstein may assert this counterclaim. Petitioner has not met its burden in seeking summary judgment on the issues of habitability or quiet use and enjoyment. What petitioner characterizes as merely “47 random exhibits” submitted in opposition do not, in fact, “miss the mark,” and are instead a range of photographs potentially corroborating Weinstein’s position that the premises has been rendered uninhabitable and anything but enjoyably usable. (Aff. in Opp., Exs. 1-47). The exhibits annexed to the answer are similarly supportive of Weinstein’s assertions. (Answer, Exs. A-H). The Court also notes that that petitioner seemingly does not materially refute the conditions of the leased premises as alleged. Thus, regardless of whether the “47 random exhibits” ultimately establish Weinstein’s claims, they sufficiently raise triable issues of fact as to petitioner’s violation of the express warranties of habitability and quiet use and enjoyment and any resulting damages that might form the basis of an abatement of the outstanding rent. Abatement for Damage or Lack of Repairs Petitioner broadly asserts that the lease does not permit any abatement for damage or repairs. (Mem. of Law in Supp., at 5). In support of this assertion, petitioner relie supon the terms of the form lease requiring Weinstein to “take good care of the demised premises, fixtures and appurtenances, and all alterations, additions and improvements to either; make all repairs in and about the same necessary to preserve them in good order and condition, which repairs shall be in quality and class, equal to the original work.” (Aff. in Support, 21; and Lease, Joint Covenant 2). However, the Lease — at Joint Covenant 4 — also states that “[i]f the demised premises shall be partially damaged by fire or other cause without the fault or neglect of Tenant, Tenant’s servants, employees, visitors or licensees, the damages shall be repaired by and at the expense of Landlord,” and of particular note, “the rent until such repairs shall be made shall be apportioned according to the part of the demised premises which is usable by Tenant.” While the accompanying rider makes extensive modifications to the form lease — and controls pursuant to the rider’s preamble — reading the terms “in the light of the obligation as a whole and the intention of the parties manifested thereby,” the Court finds that petitioner remains responsible for damages resulting from petitioner’s own negligence. Riverside S. Planning Corp. v. CRP/Extell Riverside L.P., 13 N.Y.3d 398, 404 (2009), quoting Atwater & Co. v. Panama R.R. Co., 246 N.Y. 519, 524 (1927). Accordingly, summary judgment on the issue of an abatement arising from alleged damages and/or failures to repair is denied. Although paragraph 37 of the Rider notes that petitioner “shall not be responsible for making any improvements, alterations or repairs therein or for spending any other money to prepare the demised premises for Tenant’s occupancy, except as expressly provided herein,” and paragraph 38 states that petitioner “shall not be responsible to make any structural changes to the premises,” that “[a]ny damage to the premises, shall be the sole responsibility of the Tenant,” and “[r]egardless of who is the responsible party, Landlord shall not be responsible for any repairs or damage to the tenant’s interior,” that does not end the inquiry. At Weinstein’s request, petitioner attempted certain repairs to the premises. (Answer,
