The following e-filed documents, listed by NYSCEF document numbers (Motion 001) 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, and 40 were read on this motion for SUMMARY JUDGMENT. DECISION + ORDER ON MOTION Upon the foregoing documents, the plaintiff’s motion for summary judgment is granted to the limited extent of dismissing certain of defendant’s affirmative defenses and is otherwise denied. Background Plaintiff, an agency of the State of New York, entered into a Grant Disbursement Agreement (“GDA”) with defendant, an Australian company, pursuant to which plaintiff would provide defendant with up to $3,500,000 in grants to establish a facility in Rochester, New York (GDA [NYSCEF Doc. No. 14]). Receipt and retention of the grant money was contingent on defendant employing a certain number of full-time employees at its Rochester location (GDA §2 & Exh. C to GDA [titled "Employment Goals & Recapture Terms"]). Failure to maintain the minimum number of full-time employees on staff would allow plaintiff to recapture a percentage of the grant money, determined by when the shortfall took place relative to the grant disbursement (GDA Exh. C). The GDA contains a “Integration/Modification” clause, which provides that the GDA “contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior oral or written agreements or statements relating to such subject matter” (GDA §17). Finally, there is a “No Waiver” clause, which provides that absent a signed writing regarding a waiver of plaintiff’s rights under the agreement, “there shall be no estoppel against [plaintiff] and the other parties’ alleged detrimental reliance shall be deemed to be unreasonable” (GDA §16). Plaintiff brings this action for breach of contract, alleging that defendant received a payment of $1,000,000 through the grant program, but failed to maintain the required staffing levels at its Rochester location and must therefore return the funds pursuant to the GDA. Defendant, in response, states that plaintiff either willfully or negligently misrepresented facts about the Rochester area’s suitability for defendant’s business. Standard of Review Summary judgment is appropriate where there are no disputed material facts (Andre v. Pomeroy, 35 NY2d 361, 364 [1974]). The moving party must tender sufficient evidentiary proof to warrant judgment as a matter of law (Zuckerman v. City of N.Y., 49 NY2d 557, 562 [1980]). “Failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986] [internal citations omitted]). Once a movant has met this burden, “the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial” (Kershaw v. Hospital for Special Surgery, 114 AD3d 75, 82 [1st Dept 2013]). “[I]t is insufficient to merely set forth averments of factual or legal conclusions” (Genger v. Genger, 123 AD3d 445, 447 [1st Dept 2014] [internal citation omitted], lv denied 24 NY3d 917 [2015]). Moreover, the reviewing court should accept the opposing party’s evidence as true (Hotopp Assocs. v. Victoria’s Secret Stores, 256 AD2d 285, 286-287 [1st Dept 1998]), and give the opposing party the benefit of all reasonable inferences (Negri v. Stop & Shop, 65 NY2d 625, 626 [1985]). Therefore, if there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 [1978]). Discussion Here, plaintiff has established prima facie entitlement to its claim for breach of the GDA by submission of the GDA and its amendments, the wire transfer information showing that defendant received funds from plaintiff (wire transfer [NYSCEF Doc. No. 15]), defendant’s employment report showing that it was employing below the minimum required by the GDA (2021 Annual Report of Employment [NYSCEF Doc. No. 19]), and the affidavit of its Senior Vice President for Regional Economic Development, Vincent Esposito (NYSCEF Doc. No. 9), who attests to the parties’ course of dealing (Harris v. Seward Park Housing Corp., 79 AD3d 425 [1st Dept 2010]). In response, defendant does not contest these facts. Rather, defendant raises defenses of fraudulent or negligent misrepresentation, as well as equitable estoppel, which are pled as the third and fourth affirmative defenses in the answer, as well as the subject of defendant’s counterclaims. As an initial matter, the court grants so much of the motion as seeks dismissal of the first, second, and fifth through eleventh affirmative defenses, as defendant failed to raise them in opposition to the motion (Steffan v. Wilensky, 150 AD3d 419, 420 [1st Dept 2017] ["By his silence in his opposition brief, defendant concedes, as plaintiff argues, that the second, third, and sixth affirmative defenses should be dismissed"]). “Generally, in a claim for fraudulent misrepresentation, a plaintiff must allege a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury” (Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173, 178 [2011]). For a claim of fraudulent concealment, a plaintiff must allege the same elements, and further “that the defendant had a duty to disclose material information and that it failed to do so” (Gomez-Jimenez v. New York Law School, 103 AD3d 13, 18 [1st Dept 2012], lv denied 20 NY3d 1093 [2013]). Defendant’s amended verified answer1 states that in the lead-up to the parties entering into the GDA, Esposito specifically made the following representations about Rochester: “there were thousands of talented University of Rochester graduates looking for tech jobs in Rochester,” Rochester was a “great environment for tech,” with companies such as Kodak and Paychex either already present or soon to be opening offices in the Rochester innovation zone, and that “eight additional tech companies had confirmed plans to open offices in the Rochester innovation zone” (amended verified answer [NYSCEF Doc. No. 6]
29, 31-32). Similar representations were allegedly made at other points during the negotiating process (id.,
