The following e-filed documents, listed by NYSCEF document number (Motion 002) 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89 were read on this motion to/for SUMMARY JUDGMENT. DECISION + ORDER ON MOTION Plaintiff D & D Building Company, LLC brings this action against defendant Allegro Pianos of Manhattan Corp. for allegedly breaching a commercial lease. Plaintiff moves for an order, pursuant to CPLR 3212, for summary judgment on the issue of defendant’s liability for a money judgment of $711,315.50, excluding costs, interest and attorneys’ fees, and for an order, pursuant to CPLR 3013, CPLR 3211 (a) (1), (6), (7), CPLR 3211 (b), and CPLR 3212, dismissing defendant’s affirmative defenses and counterclaims. Defendant opposes the motion and cross-moves for summary judgment on its counterclaims. Background Information and Procedural History Pursuant to a written lease dated November 11, 2015 (the Lease), plaintiff, as landlord, leased a portion of the fifteenth floor known as Showroom 1540 (the Premises) in the building located at 979 Third Avenue, New York, New York (the Building), to defendant, as tenant, for a term (the Term) beginning on the “Commencement Date” (the Commencement Date) and ending on an “Expiration Date” (the Expiration Date) that was five years and five calendar months after the “Rent Commencement Date” (the Rent Commencement Date) (NYSCEF Doc No. 40, Stephen A. Fredericks [Fredericks] aff, exhibit A at 5-6 [§§1.01 and 2.01 (a) and (c)]). The Commencement Date is the date parties executed the Lease, after which “Landlord and Tenant are bound by this Lease…[and] each shall perform all of their respective obligations that apply during the Term” (id. [§2.01 (a)]). Section 2.01 (b) defines the Rent Commencement Date as “the earlier of (i) the date that Landlord shall have substantially completed ‘Landlord’s Work’ (as defined in Schedule B) in the Demised Premises, or (ii) the date that Tenant shall have commenced the operation of its business in the Demised Premises” (id. at 6). Plaintiff may request that defendant execute a statement “confirming the Rent Commencement Date and Expiration Date…provided, however, that the execution of such statement shall not be necessary for the Rent Commencement Date to occur” (id. at 7 [§2.05]). Schedule B defines the scope of the “Landlord’s Work” (Landlord’s Work), and reads: “1. Landlord, at Landlord’s expense, will provide work, materials and service to perform the following work in the Demised Premises (‘Landlord’s Work’), all of which shall be of materials, manufacturer, design and capacity of the building standard adopted by Landlord for the Building: (a) Fully demise the Demised Premises. (b) Demolish the remaining details of the previous installation including, but not limited to, moldings and flooring tiles. (c) Install a building standard air conditioning return; install a Building standard smoke detector; and connect the smoke detector to the Building’s fire safety system. (d) Partially relocate air-conditioning ductwork serving the adjacent premises. (e) Place in good working order the perimeter convector units. (f) Replace all broken window panes and weather stripping” (id. at 77). In addition, Section 2.02 states: “Except as set forth on Schedule B, Landlord shall have no obligation to perform any other work in connection with preparing the Demised Premises for Tenant’s occupancy. Landlord’s Work shall be deemed to be substantially completed even though minor details or adjustments, none of which materially interfere with Tenant’s access to and use of the Demised Premises may not then have been completed, but Landlord agrees, at its sole cost and expense, to promptly thereafter complete all unfinished work. Landlord shall deliver possession of the Demised Premises to Tenant on the Rent Commencement Date” (id. at 6). Defendant agreed to take possession of the Premises on the Rent Commencement Date in “‘As Is’ condition, subject to the substantial completion of the Landlord’s Work” (id. at 7 [§2.03] and 80 [Schedule C]). If defendant wished to perform alteration work, it was required to obtain plaintiff’s prior consent, including approval of its architect, contractor and plans (id. at 11 [§5.01 (a)] and 80 [Schedule C]). Defendant agreed to furnish plans to plaintiff for approval within 30 days of the Commencement Date, and if plaintiff did not approve, defendant had 14 days to submit revised plans (id. at 80 [Schedule C]). The Lease obligated defendant to pay a fixed minimum annual rent (Minimum Rent) from the Rent Commencement Date forward (id. at 7-8 [§3.01 (a)]). Minimum rent on a prorate basis (the Per Diem Rate) for any “Partial Month,” as that term is defined in Section 2.01 (c), was §356.16 per day (id. at 8). Provided defendant was not in default under the Lease, it was entitled to a rent abatement for each of the first five full calendar months of the first year of the Term (id. [§3.02 (a)]). Upon execution of the Lease, defendant agreed to pay plaintiff $10,833.33, to be applied to the monthly rent due for the sixth month of the first year (id. [§3.03]). The Lease also required defendant to pay certain charges as additional rent, such as real estate tax escalations (id. at 42 [§22.01]) and electric charges (id. at 48 [§23.04]), and to pay a security deposit of $55,000 (id. at 67 [§39.01]). The “Permitted Use” of the Premises was for the display and sale of musical instruments and related accessories (id. at 9 [§4.01 (a)]). Under Section 4.01 (b) (i), defendant is “‘Open For Business’…when the Demised Premises is open for business for the Permitted Use…. The ‘Opening Day’ is the first day that the Demised Premises shall be Open For Business” (id. at 9). If defendant did not “Open for Business” by the “Target Opening Day,” which was 180 days after the Rent Commencement Date, plaintiff was entitled to recover a “Per Diem Rate of $356.16 per day” in damages until defendant opened for business (id. at 10 [§4.01 (b) (ii)]). If the Term expired before the Expiration Date because of defendant’s default, then defendant was liable for all amounts due on the Lease through the Expiration Date and any other damages that survived an early termination (id. at 6 [§2.01 (c)]). Under Section 2.06, defendant waived its right to rescind or terminate the Lease under Real Property Law §223-a and its “right to recover any damages, direct or indirect, which may result from Landlord’s failure to deliver possession of the Demised Premises on the Rent Commencement Date. Tenant agrees that the provisions of this Section are intended to constitute ‘an express provision to the contrary’ within the meaning of RPL §223-a” (id. at 7). The Lease could not be orally modified or terminated (id. at 58 [§32.01]), and the Lease and annexed schedules constituted the parties’ entire agreement, with all prior negotiations merged therein (id. at 59 [§32.05]). On January 27, 2016, Fredericks, vice president for plaintiff’s managing agent, nonparty Cohen Brothers Realty Corp. (CBRC), notified Ori Bukai (Bukai), defendant’s president, that plaintiff had substantially completed the Landlord’s Work and requested that defendant execute a “Commencement Date Agreement” (the CDA) (NYSCEF Doc No. 41, Fredericks aff, exhibit 2 at 3-4). The CDA set January 26, 2016, as the Rent Commencement Date and June 30, 2021, as the Expiration Date (id. at 2). Defendant did not sign the CDA. By letter to defendant dated April 15, 2016, Andrew M. Smith (Smith), senior vice president at CBRC, repeated plaintiff’s position that January 26, 2016, was the Rent Commencement Date whether or not the CDA was signed; rent for the “Partial Month” of January was due; defendant was entitled to a rent abatement for February through June; and defendant had to “Open for Business” by July 25, 2016, or else face a per diem charge of $356.15 as damages until it did so ((NYSCEF Doc No. 42, Fredericks aff, exhibit 3). Defendant’s counsel replied by letter on April 18, 2016, writing that defendant had toured the Premises on January 28 and determined that the Landlord’s Work was neither substantially completed nor code compliant (NYSCEF Doc No. 43, Fredericks aff, exhibit 4). Defendant’s counsel wrote that efforts to reach the building manager, John D. Woytowicz (Woytowicz), were futile, and as a result, defendant was exercising its right of rescission to terminate the Lease (id.). Plaintiff commenced this action on October 5, 2016, by filing a summons and complaint pleading a single cause of action for breach of contract. It seeks to recover all rent due under Section 3.01 (a) of the Lease and monthly rent for February through June 2016 under Section 3.02 (b) (NYSCEF Doc No. 1, complaint
13). Defendant served an answer asserting nine affirmative defenses and three counterclaims for breach of contract, promissory estoppel and unjust enrichment. On the first counterclaim, defendant alleges that plaintiff breached the lease by failing to substantially complete the Landlord’s Work, by failing to deliver possession of the Premises, by demanding that defendant work outside the Premises, and by failing to approve of defendant’s architectural plans (NYSCEF Doc No. 6, answer 48). On the second counterclaim based on the theory of promissory estoppel, defendant alleges that it relied on plaintiff’s promise to substantially complete the Landlord’s Work before the Rent Commencement Date to its detriment (id., 63). On the third counterclaim, defendant alleges that plaintiff was unjustly enriched by refusing to return the security deposit and one month’s rent (id.,
