MEMORANDUM AND ORDER Plaintiff Viktoria von Siemens (“Plaintiff”) brings a state law breach of contract claim against Matthew and Nadine Abramcyk (collectively, “Defendants”) under diversity jurisdiction. Defendants rented a residential unit from Plaintiff and defaulted on multiple payments. Plaintiff now moves for summary judgment. For the following reasons, Plaintiff’s motion is GRANTED in part and DENIED in part. I. Background The facts presented here and in the Discussion section are taken from the pleadings, the parties’ Rule 56.1 statements, and supporting documentation. They are undisputed unless otherwise noted. The Court construes all evidence in the light most favorable to the non-moving party, drawing all inferences and resolving all ambiguities in that party’s favor. See LaSalle Bank Nat. Ass’n v. Nomura Asset Cap. Corp., 424 F.3d 195, 205 (2d Cir. 2005). Plaintiff, a German citizen, owns a brownstone (the “Premises”) in Brooklyn, New York. Von Siemens Decl. 4, ECF No. 63-85. “On March 18, 2019, von Siemens entered into a written lease agreement” (the “Lease”) to rent the Premises to the Defendants, a married couple with New York citizenship, “for a stated term of April 15, 2019[,] through June 30, 2021,” at $16,000 per month. Pl. Mem. 2, ECF No. 63-1. All was well until the COVID-19 pandemic hit New York. In March 2020, Defendants were forced by New York State Executive Orders 202.3 and 202.7 to shutter multiple restaurants and nail salons they operated. Defs.’ Opp. 3, ECF No. 64. In April 2020, Defendants “stopped paying rent [on the Premises] and relocated to a rental home” in East Hampton, New York. Id. At this point, Defendants had defaulted on rent for April and May 2020. On May 16, 2020, defendant Nadine Abramcyk contacted Plaintiff to request rent reductions “for possibly 2-3 months” because Defendants “were having financial difficulties due to the closure of their businesses,” Pl. Mem. at 2, for which they received Paycheck Protection Program loans (“PPP loans”) from the federal government. Defs.’ Opp at 3-4. Plaintiff offered to accept partial payments “[w]ithout waiving any of [Plaintiff's] rights, provided that the April rent payment [was] received in full by May 22, 2020,” Ex. 3, ECF No. 63-6, a condition Defendants failed to meet. Pl. Mem. at 2. On June 4, 2020, Nadine Abramcyk emailed Plaintiff’s counsel to request “50 percent off the rent from the months of April [2020] through June [2020], stating ‘[t]his adjustment will help us tremendously in getting through these difficult times.’” Id. at 2-3. In response, Plaintiff’s counsel agreed over email to accept partial payments from April to June 2020 and later agreed to the same for July 2020. Id. at 3; Emails 17-25, ECF No. 64-7. After failing to negotiate further partial payments, Defendants paid rent for August and September 2020. Defs.’ Opp. at 4. Defendants then did not pay any rent “for the remainder of the Lease term,” from October 2020 through June 2021. Pl. Mem. at 3. Defendants allege “that they could no longer reside in the Premises” for financial reasons, vacating and surrendering the Premises in March 2021 before their lease ended. Defs.’ Opp. at 4. Plaintiff contests whether Defendants truly suffered financial hardship. Following Defendants’ vacatur, Plaintiff discovered needed repairs and hired a contractor in April 2021. Plaintiff fired the contractor after he “made no progress on the work for months,” and could not hire another contractor “until after the Lease term expired” because “of the record number of home renovation projects occurring during” the pandemic. Pl. Mem. at 4. Defendants contend that repairs were unnecessary. Defs.’ Opp. at 4. This action is not the first stemming from this dispute. Plaintiff brought an action in Kings County Civil Court on October 29, 2020, seeking damages and to evict Defendants. Pl. Mem. at 3. Defendants did not answer until March 3, 2021, when they submitted a hardship declaration form “claiming that they had been constructively evicted and could not leave the Premises or pay rent because they had ‘suffered tremendous financial hardship.’” Id. Plaintiff now brings a breach of contract claim under New York state law for $176,000 in damages: $32,000 for partially unpaid rent from April to July 2020, and $144,000 for unpaid rent from October 2020 to June 2021. Pl. Reply 7, ECF No. 65. II. Summary Judgment Summary judgment is appropriate only if the pleadings, the discovery materials on file, and any affidavits show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court must “resolv[e] all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Sloley v. VanBramer, 945 F.3d 30, 36 (2d Cir. 2019) (citing Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010)). “Where a plaintiff uses a summary judgment motion, in part, to challenge the legal sufficiency of an affirmative defense — on which the defendant bears the burden of proof at trial — a plaintiff may satisfy its Rule 56 burden by showing that there is an absence of evidence to support an essential element of the non-moving party’s case.” F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (cleaned up). III. Discussion a. Breach of Contract Plaintiff’s sole claim alleges that Defendants breached the Lease by making only partial payments from April to July 2020 and defaulting on payments from October 2020 to June 2021. “Under New York law, an action for breach of contract requires proof of (1) a contract; (2) performance of the contract by one party; (3) breach by the other party; and (4) damages.” First Inv’rs Corp. v. Liberty Mut. Ins. Co., 152 F.3d 162, 168 (2d Cir. 1998) (cleaned up). Plaintiff has undisputably established every element. The record shows that Defendants did not pay Plaintiff rent from at least October 2020 to June 2021. Defendants do not dispute that they are legally bound by the Lease, that Plaintiff performed, and that Plaintiff suffered damages from Defendants’ breach of the lease. See Defs.’ Opp; Defs.’ Resp. Pl.’s SOF
2-3, 64-65, ECF No. 64-2. Defendants make multiple arguments that implicate damages but not liability. Contrary to Defendants’ assertion, whether Plaintiff mitigated damages “is properly considered in determining damages rather than liability.” Aetna Cas. & Sur. Co. v. Aniero Concrete Co., 404 F.3d 566, 608 (2d Cir. 2005). And although Defendants argue that Plaintiff waived any right to seek full rent for April to July 2020, that issue goes to the damages owed. Defendants have otherwise admitted that they breached by failing to pay rent from October 2020 to June 2021. See Defs.’ Resp. Pl.’s SOF at 64-65. Thus, Plaintiff has demonstrated that no genuine issue of material fact exists to any element of her breach of contract claim. b. Waiver and Estoppel The parties do not dispute that Plaintiff’s counsel agreed over email to accept Defendants’ partial rent payments from April to July 2020. Pl. Reply at 7; Emails 18, 23-25, ECF No. 64-7. But the parties dispute whether Plaintiff waived her right to later seek full payment. Defs.’ Opp at 6; Defs.’ Resp. Pl.’s SOF at 52; Pl. Reply at 7. Waiver “should not be lightly presumed” and requires Defendants to show “a ‘clear manifestation of intent’ to waive” by Plaintiff that does not contradict any express reservation of rights in the Lease or communications. Globecon Grp., LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 176 (2d Cir. 2006) (quoting Gilbert Frank Corp. v. Fed. Ins. Co., 70 N.Y.2d 966, 968 (1988)). Plaintiff makes two arguments against waiver. First, Plaintiff disputes that the written communications agreeing to accept partial payments evidenced intent to waive her right under the Lease to later seek full payment. Second, Plaintiff argues that any waiver is invalid because it was fraudulently induced by Defendants misrepresenting their financial hardship. Both these arguments present genuine issues of material fact. As to whether waiver occurred, Plaintiff asserts that any agreement approving the rent reduction must have been signed by von Siemens, and that the Lease reserved all rights absent a contrary written agreement. Pl.’s Reply at 8. The Lease includes a non-waiver clause, stating that “the failure of Owner to make action or Owner’s acceptance of [partial] rent does not prevent Owner from taking action at a later date,” and that “[o]nly a written agreement between [tenant] and Owner can waive any violation of this Lease.” Lease 6-7, ECF No. 63-15. Plaintiff also emphasizes that her unsuccessful offer on May 20, 2020, to reduce rent for April and May 2020 expressly reserved all rights. Id.; Defs.’ Resp. Pl.’s SOF at
