The following e-filed documents, listed by NYSCEF document numbers (Motion 001) 7, 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, 40, 41, 42, and 43 were read on this motion for SUMMARY JUDGMENT. DECISION ORDER ON MOTION Background Plaintiff commenced this action seeking damages against the defendant Zaika Food Company LLC (“Zaika”) and defendant Manmohan Ahluwalia (“Manmohan”) for unpaid rent and additional rent in connection with leased premises. Zaika was the commercial tenant of the Ground Floor Store a/k/a Eastern Store and Lower Level located at 230 East 44th Street, New York, New York (the “Leased Premises”), pursuant to a written commercial Lease agreement date September 19, 2017, for a term of ten years (the “Lease”). Manmohan is the guarantor of Lease. On or about November 17, 2019, Zaika provided plaintiff with a “Notice of Surrender/Termination,” indicating its intent to surrender the Leased Premises by May 31, 2020, and seeking to obtain a termination of the Lease and a release of Manmohan from his responsibilities under the guaranty (the “Surrender Notice”). However, plaintiff asserts that in accordance with the Lease and guaranty, the defendants agreed that in order to properly effectuate a termination of the Lease and guaranty, the defendants were required to be current with their monetary obligations at the time of the Surrender Notice and through the date of the vacatur. Plaintiff claims that defendants failed to comply with their respective obligations under the Lease and guaranty, and as such, the Surrender Notice was null and void, and defendants remain liable for the unpaid rent and additional rent. The complaint’s prayer for relief states that it seeks money judgments against Zaika for $215,032.31 (for outstanding arrears through May 2020), for $93,607.42 (for outstanding arrears through November 2021), and $2,344,829.52 (for future rents). Plaintiff now seeks a default judgment against Zaika, although Zaika filed a late answer with counterclaims along with its counsel’s affirmation of excusable default and statement of possible merit (NYSCEF Doc. Nos. 30, 31). Plaintiff moves for summary judgment against Manmohan on his guaranty. Motion for a Default Judgment against Zaika Zaika’s counsel attests that the answer with counterclaims were filed late on account of anticipated adjournments, possible settlement, and personal issues (see, NYSCEF Doc. No. 30
6-39). The court deems those circumstances to constitute excusable default, especially in light of its filing of its answer and counterclaims, demonstrating a willingness to defend the action (see, Hunter v. Enquirer/Star Inc., 210 AD2d 32 [1st Dept 1994]). As for meritorious defense: Zaika asserts the following. Zaika points to a 2019 settlement agreement whereby all rent arrears claims would be settled upon payment of $90,000 (see, NYSCEF Doc. No. 33). Zaika further asserts that it was promised a rent credit of $30,000, pointing to a confirmation from plaintiff’s agent (see, id.,
