Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Papers Numbered Notice of Motion, Affirmation and Affidavit in Support, and Exhibits 1 Affirmation and Affidavit in Opposition 2 Affirmation in Reply and Exhibits 3 DECISION/ORDER Petitioner commenced this commercial non-payment proceeding seeking to recover possession of the premises located at 1921-35 Seventh Avenue aka 1921-35 Adam Clayton Powell Jr. B., Unit 1L, all rooms, New York, NY 10026 (“subject premises”), based upon the allegation that I SLEEP MANAGEMENT LLC (“respondent”) defaulted in the payment of rent and additional rent, and did not cure the default after being served with a Fourteen Day Notice to Tenant on January 13, 2024. Respondent continues in possession without petitioner’s permission. The relief sought in the petition includes possession of the subject premises with the issuance of a warrant to remove respondent therefrom; and a money judgment against respondent for rent and additional rent arrears, and attorneys’ fees, costs and disbursements. The petition is dated February 6, 2024. Petitioner moves to strike respondent’s affirmative defense, to amend the petition to date, and for summary judgment. Respondent files opposition and petitioner submits reply. The movant on a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). CPLR 3212(b) provides that a summary judgment motion must be supported by an affidavit of a person with knowledge of the facts, as well as other admissible evidence (see JMD Holding Corp. v. Congress Fin. Corp., 4 NY3d 373, 384-85 [2005]). Once such a showing is made, “the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986], citing Zuckerman v. City of New York, 49 NY2d at 562). Petitioner provides the court with the affidavit of Joshua Frankel, agent of petitioner; the subject lease; a rent ledger reflecting the outstanding balance owed by respondent; petitioner’s Fourteen Day Notice to tenant; the notice of petition and petition; affidavits of service of the pleadings and predicate notice; respondent’s answer; the certified deed to the subject premises; letters to tenant regarding tax bills, copies of the property tax bills, and other exhibits (see NYSCEF Doc. Nos. 11-19). With these documents, petitioner makes a prima facie showing of entitlement to summary judgment in this non-payment proceeding (see RPAPL 711[2]). Therefore, the burden shifts to respondent to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial. In opposition, respondent argues there are issues of fact regarding whether respondent was partially constructively evicted by petitioner’s erection and maintenance of scaffolding outside of the subject premise. Respondent states that in 2019, petitioner erected scaffolding at the premises that remained there until recently (see NYSCEF Doc. No. 24, 4). Respondent claims that the scaffolding resulted in public safety concerns and monetary loss (see id., 5). Respondent asserts that the scaffolding provided an encampment for “a large homeless population” and that many prospective customers/patients and referring sources were concerned and stopped using respondent’s services (see id.,
