The following e-filed documents, listed by NYSCEF document number (Motion 005) 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 144, 145, 147, 148, 149, 150, 153, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217 were read on this motion for SUMMARY JUDGMENT. DECISION ORDER ON MOTION This action concerns a dispute over a commercial lease for premises intended to house a restaurant. In July 2018, landlord-defendant 1 BK Street Corp. and tenant-plaintiff Empanada Fresca LLC entered into a 15-year commercial lease for the ground floor and basement space of the premises at 95 Greenwich Avenue, New York, New York 10012. Tenant intended to open a restaurant, as the preceding occupant had done. On November 6, 2018, a Con Edison of New York, Inc., representative went to the building to initiate gas service for the premises. During his investigation, he discovered a leak in the house pipe and that the meter bar supporting the gas meter was defective and outdated. According to plaintiff’s expert, “[t]he house pipe refers to the main gas distribution supply pipe after the meter” that, for the most part, is “not located within the subject Premises but, rather, in the common area cellar of the Building.” (NYSCEF No. 192 at 18 [emphasis in original].) Because of these deficiencies, the representative placed a Class A Warning Tag (Red Tag) and a lock on the meter. Based on Con Edison’s directions to restore gas service, tenant hired a licensed plumbing contractor to replace the defective equipment. (See NYSCEF No. 123 [Con Edison letter].) On January 15, 2019, tenant’s counsel sent a letter to landlord based on information from tenant’s hired plumbing company, Ariel Services, Inc. The letter stated that “the following Pre-Existing Conditions are preventing Tenant from opening: (1) currently existing gas appliances on the Premises are not registered with the New York City Department of Buildings; (2) No plans or permits were filed since 1993; and (3) the utilization of existing gas appliances ‘as is’ is a DOB violation.” (NYSCEF No. 130 at 1.) Tenant’s counsel further wrote that landlord was required to bear any expenses due to correct these conditions under §4.2 (j) (i) of the lease and that the letter acted as notice to activate that section’s “rent commencement date suspension.” (Id. at 2.) In response, landlord sent tenant a letter disputing tenant’s claim that these issues represented “preexisting conditions” as defined by the lease and disclaiming any responsibility for remedying them. (See NYSCEF No. 185 [January 31, 2019, response letter].) In March 2019, tenant hired a new plumbing company, Hudson Plumbing & Mechanical, to fix the gas equipment and restore service. To do so, Hudson had to obtain a Limited Alteration Application (“LAA”) permit from the NYC Department of Buildings (DOB). Hudson’s efforts were allegedly frustrated when it was unable to locate the DOB registration filings for the premises’ gas equipment. Tenant personally went to the DOB office “on two different occasions” to try to find proof of registration but was unsuccessful. He also hired an expediter who was similarly unable to locate any registration for the equipment. Then, on July 11, 2019, tenant’s counsel discovered that “years before Plaintiff signed the Lease, the existing appliances had been registered with the DOB under the wrong address.” (NYSCEF No. 180 at 39; see NYSCEF No. 186 [DOB Query Inspection Results] [listing the premises address as "87 Greenwich Avenue Manhattan"].) After finding the proof of registration, tenant hired Kew Forest Plumbing and Heating, Inc., to repair the defective equipment and increase its energy capacity. But Kew was also unable to apply for an LAA permit because Kew discovered that “[t]he building owner…[had] an old work without a permit violation from 2002 with the Department of Buildings,” and that the violation had incurred a $6,000 penalty that remained outstanding. (NYSCEF No. 127 [Kew's July 31, 2019 letter].) On August 2, 2019, tenant sent landlord its “Tenant’s Notice of Intent to Vacate” letter. (NYSCEF No. 131.) The letter notified landlord of tenant’s intent to vacate the premises on November 2, 2019. Tenant then sent landlord a second letter on August 7, 2019, informing it of tenant’s inability “to perform Tenant’s Work and/or the Alterations as contemplated by the terms of the Lease” due to the building’s outstanding 2002 Environmental Control Board (ECB) violation. (NYSCEF No. 132 at 1.) Landlord sent a reply letter to tenant informing it that landlord had retained the services of a professional expediting company to resolve the violation. On November 2, 2019, tenant vacated the premises. Two months later, on January 14, 2020, landlord received an email from its hired corrections specialist that the violation was resolved. And, on June 28, 2021, landlord re-let the premises. (NYSCEF No. 128 at 23.) In October 2019, tenant commenced this action against landlord. Tenant has asserted claims sounding in breach of contract, frustration of purpose, rescission, and negligence; and it seeks damages and a refund of rent paid to landlord. Landlord counterclaimed against tenant for unpaid rent allegedly owed by tenant (plus attorney fees). Landlord also counterclaimed against counterclaim-defendant Jose Rodriguez, tenant’s guarantor, for all sums that tenant was determined to owe to landlord. Landlord now moves under CPLR 3212 for summary judgment dismissing tenant’s claims, and for judgment in landlord’s favor on landlord’s counterclaims against tenant and against guarantor. Tenant cross-moves for summary judgment dismissing landlord’s counterclaim against guarantor in its entirety. Tenant also cross-moves under CPLR 3025 (b) for leave to serve an amended complaint. Landlord’s summary-judgment motion dismissing tenant’s claims is granted in part and denied in part. The branch of tenant’s cross-motion seeking summary judgment dismissing landlord’s claims against guarantor is denied. The branch of tenant’s cross-motion for leave to amend is granted. DISCUSSION A party bringing a motion for summary judgment “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986].) Once the movant establishes its prima facie entitlement, the opposing party must tender evidence showing the existence of a triable factual issue, with inferences drawn in the nonmoving party’s favor. (See Zuckerman v. City of New York, 49 NY2d 557, 560 [1980].) Landlord contends on its motion that four provisions of the lease require dismissal of all of tenant’s claims. Given the recurring importance of these provisions, the court sets them out in detail here. Section 4.1 (a), or the “As Is” Clause: “Tenant has inspected the Premises and agree (a) to accept possession of the Premises in their ‘as is’ condition…, (b) that neither Landlord nor Landlord’s agents have made any representations or warranties with respect to the Premises or the Building…, (c) that Landlord shall be under no obligation to Tenant with respect to the physical condition of the Premises and (d) that Landlord has no obligation to perform any work, supply any materials, furnish any type or kind of services or facilities, incur any expense or make any alterations or improvements to the Premises to prepare the Premises for Tenant’s occupancy.…Tenant hereby assumes full responsibility for the condition, operation, repair, replacement, maintenance and management of the Premises.” (NYSCEF No. 129 at §4.1 [a].) Section 3.4 (b), or the “Disclaimer of Representations” Clause: “Tenant has not been induced by and has not relied upon any promises, representations, warranties or statements…made by Landlord…concerning: (a) the physical…condition of any portion of the Premises and the Building; (b) the suitability, feasibility or legality of the use of the Premises for any particular purpose; (c) the…projected income from or development expense of the Premises; (d) the Premises compliance or non-compliance with any requirements of laws…; or (e) any other matter whatsoever with respect to the Premises…including…those of fitness for a particular purpose, tenantability, habitability and use; and that all matters concerning the Premises and the Building have been and/or are to be independently verified by Tenant. Tenant acknowledges that it is leasing the Premises in its currently existing physical condition, in its currently existing state of repair, and subject to the Premises and/or Building’s non-compliance, if any, with any requirements of laws….” (NYSCEF No. 129 at §3.4 [b].) Section 16.3 or the “No Liability for Gas Interruption” clause: “Landlord shall not be liable…to Tenant for any failure, defect or interruption of, or change in the supply, character and/or quantity of…gas service furnished to the Premises for any reason,…and no liability shall arise on the part of Landlord by reason of inconvenience, annoyance or injury to business, whether electricity and/or gas is provided by public or private utility….” (NYSCEF No. 129 at §16.3.) Section 36.5 or the “Merger” clause: “This Lease…contains the entire agreement between the parties and all prior negotiations and agreements are merged into this Lease.” (NYSCEF No. 129 at §36.5.) This court begins by considering the branches of landlord’s motion seeking dismissal of tenant’s first and fifth causes of action, in particular. Consideration of the merits of those claims provides provide helpful factual background for the remaining causes of action. I. Tenant’s First Cause of Action Tenant’s first cause of action seeks a refund of all rent for “(a) Defendant’s failure to disclose that the gas service had been turned off by Con Edison, that a faulty Meter Bar had been installed and that there was an open Violation against the Property; (b) Defendant’s negligent installation of a defective and non-compliant Meter Bar; and (c) Defendant’s failure to address or remedy the Violation.” (NYSCEF No. 112 at 37.) Landlord’s motion for summary judgment dismissing tenant’s first cause of action is granted. a. First Branch of First Cause of Action: Negligence Tenant’s causes of action, as pleaded, do not identify the specific legal theories on which it relies. This court understands tenant’s first cause of action to sound in negligence and frustration of purpose, and evaluates this branch of landlord’s summary-judgment motion accordingly. Tenant contends that landlord “negligent[ly] install[ed]…a defective and non-compliant Meter Bar.” (NYSCEF No. 112 at 37.) It is a “a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated.” (Dormitory Auth. of the State of N.Y. v. Samson Constr. Co., 30 NY3d 704, 711 [2018] [internal quotation marks omitted].) An independent legal duty may arise based on the parties’ relationship, the nature of the injury, and the resulting harm. (Id.) But if negligence allegations are “merely a restatement, albeit in slightly different language, of the implied contractual obligations asserted in the cause of action for breach of contract,” the tort claim must be dismissed as duplicative. (Id. at 711-712 [internal quotation marks omitted].) Tenant’s allegations of landlord’s negligent installation of the gas equipment mirror those of its breach-of-contract claims. Further, the facts underlying both claims, as well as the relief sought, are identical. The branch of tenant’s first cause of action alleging negligence is dismissed as duplicative.1 b. Second Branch of First Cause of Action: Frustration of Purpose The second branch of tenant’s first cause of action alleges that “[t]he purpose of the Lease was frustrated by Defendant as a result of its failure and refusal to replace the defective Meter Bar and correct the open Violation.” (NYSCEF No. 112 at 34.) To support a claim under the doctrine of frustration of purpose, “the frustrated purpose must be so completely the basis of the contract that, as both parties understood, without it, the transaction would have made little sense.” (Warner v. Kaplan, 71 AD3d 1, 6 [1st Dept 2009] [internal quotation marks omitted].) The doctrine, however, “is not available where the event which prevented performance was foreseeable and provision could have been made for its occurrence.” (Id. [internal quotation marks omitted].) Landlord argues that the defective gas equipment was foreseeable because equipment defects were provided for in the lease’s As-Is and No Liability for Gas Interruption clauses. The court agrees. Section 4.1 (a) provides that tenant has inspected the premises prior to entering the lease and agrees to accept it in “as is” condition. (NYSCEF No. 129 at §4.1 [a].) And §16.3 of the lease provides that “Landlord shall not be liable in any way to Tenant for any failure, defect or interruption of…gas service.” (NYSCEF No. 129 at §16.3.) The 2002 violation was also foreseeable based on provisions of the lease. Indeed, tenant’s August 7, 2019, letter cites §4.2 of the lease as requiring landlord “to promptly take such actions which are commercially reasonable in order to cure the ECB Violation.” (NYSCEF No. 132 at 1.) Even if, as landlord argues, the violation did not constitute a “Pre-Existing Condition” as defined in §4.2, the lease’s Disclaimer of Representations and Warranties clause also contemplated events like that of the 2002 violation. (See NYSCEF No. 129 §3.4 [b] [providing that "[t]enant acknowledges that it is leasing the Premises…subject to the Premises and/or Building’s non-compliance, if any, with any requirements of laws” and any applicable building codes, ordinances, or requirements].) The court grants landlord’s motion for summary judgment dismissing tenant’s first cause of action.2 II. Tenant’s Fifth Cause of Action Landlord’s motion for summary judgment dismissing tenant’s fifth cause of action is granted in part and denied in part. Tenant’s fifth cause of action asserts a breach-of-contract claim against landlord. Tenant alleges that landlord was required, but failed, to (i) “fully cooperate with Plaintiff in the obtaining of government approvals and permits to…reconnect the gas service”; and (ii) “take commercially reasonable actions to cure the Violation to enable Plaintiff to obtain a permit to…reconnect the gas service.” (NYSCEF No. 112 at
63, 65, 67.) To state a valid breach-of-contract cause of action, plaintiff must plead “the existence of a contract, the plaintiff’s performance under the contract, the defendant’s breach of that contract, and resulting damages.” (JP Morgan Chase v. J.H. Elec. of N.Y., Inc., 69 AD3d 802, 803 [2d Dept 2010].) When interpreting contracts, “[a] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms.” (Greenfield v. Philles Records, 98 NY2d 562, 569 [2002].) An unambiguous contract is one that “is reasonably susceptible of only one meaning.” (Id. at 570.) Silence alone does not constitute contractual ambiguity. (See id. at 573.) a. Requirement that landlord fully cooperate. Tenant claims that landlord was aware that the existing gas equipment and associated permits were filed with the DOB under an address different than that of the premises but that it failed to notify tenant. Tenant argues that landlord’s refusal to do so violated §§4.2 (b) and 5.1 (iii) of the lease, under which landlord agreed to cooperate with tenant in its attempts to obtain government approvals, including by participating in any proceedings or in the execution of any required documents. Landlord argues that tenant’s claims “blam[ing] Landlord for the problems Tenant allegedly had accessing gas to serve the Premises…are barred by As Is, Disclaimer of Representations, Merger and No Liability For Gas Interruption Clauses as well as Section 21.1 of the Lease.” (NYSCEF No. 142 at 15.) The court agrees with landlord that the lease assigns to tenant the primary responsibility for all work associated with repairing, replacing, and initiating gas service to the premises. But the lease does not provide that these provisions supersede the lease terms assigning to landlord the obligation to cooperate with tenant in its efforts to do so. And, as discussed below, landlord does not refute as a matter of law tenant’s claims that §§4.2 (b) and 5.1 (iii) require cooperation from the landlord that it failed to provide to tenant. b. Lease §4.2 (j)’s requirement that landlord take commercially reasonable actions to cure pre-existing conditions. Tenant argues that landlord was required — but failed — to take commercially reasonable actions to cure the 2002 ECB violation, to repair or replace the defective meter bar, and to provide tenant with a rent abatement until those issues were resolved. Tenant cites §4.2 (j) of the lease, which provides that “if Tenant is unable to procure any governmental permit and/or license required in order to permit the Premises to be used for the Permitted Use…due to a Pre-Existing Condition, and Tenant notifies Landlord of same with reasonable details thereof, then…Landlord shall promptly take such actions which are commercially reasonable in order to cure such Pre-Existing Condition.” (NYSCEF No. 129 at 17-18 §4.2 [j].) Landlord again contends that the As Is, Disclaimer of Representations, Merger and No Liability For Gas Interruption clauses preclude tenant’s claims under its fifth cause of action. This court disagrees. When interpreting contracts, a court must “examine the entire contract and consider the relation of the parties and the circumstances under which it was executed. Particular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties as manifested thereby.” (Kass v. Kass, 91 NY2d 554, 566 [1998].) Here, the lease provisions relied upon by landlord do not provide that they supersede or override other potentially conflicting terms of the lease. Those provisions must be harmonized and read together, if reasonably possible, with §4.2 (j). Thus, although the court agrees with landlord to the extent that it argues that the provisions it cites limit its responsibility to help prepare the premises for tenant’s purposes, the court does not agree that they override its responsibility to cooperate as expressly delineated in other areas of the lease, including in §4.2 (j). Landlord argues that tenant’s January 15, 2019, letter did not constitute the notice required by §4.2 (j); that the conditions of which tenant complains do not constitute pre-existing conditions as defined in the lease; and that landlord took commercially reasonable actions to cure the 2002 ECB violation regardless. This court considers these arguments in turn. i. Whether tenant notified landlord of the conditions. The court concludes that tenant’s January 15 letter was sufficient to notify landlord that the gas equipment was filed with the DOB under an address different than that of the premises and that this constituted notice of an asserted pre-existing condition under the lease. Tenant’s January 2019 letter expressly stated that tenant had “discovered ‘Pre-Existing Conditions’ defined under the Section 4.2 (j) of the Lease” for which landlord was solely responsible to remedy. (NYSCEF No. 130 at 1.) Further, tenant’s letter attached its plumber’s letter that explained that the “existing appliances in restaurant were not registered for gas at the NYC DOB and that there are no plans or permits dating back to 1993.” (Id. at 3.) Landlord argues that the lease “provides that [Landlord] should promptly act fix a pre-existing [condition] if asked by Tenant, but the letter does not even ask Landlord to do any such thing.” (NYSCEF No. 142 at 15.) Tenant’s letter does not ask that landlord itself cure the defects, but it does request that landlord “bear the expenses for the” work. And landlord does not offer any reasons why this court should not conclude that a request from tenant that landlord reimburse it for fees incurred in curing pre-existing conditions falls within the scope of §4.2 (j)’s required “actions.” In terms of the leaking house pipe, defective meter bar, and Red Tag, tenant argues that landlord was on notice of these conditions because (i) Con Edison was required under the NYCRR and its own internal procedures to notify landlord of the conditions and Red Tag; and (ii) Carlos Santos, Empanada’s co-founder, represented in an affidavit that he personally spoke to landlord’s property manager, Celine Negron, about the conditions.3 (NYSCEF No. 189 at
