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

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 [*2]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., ¶¶6,7).

Respondent's argument is without merit. First, respondent did not plead an affirmative defense of constructive eviction in its answer (see CPLR 3018[b]). Second, even if the court were to consider such affirmative defense, respondent's argument fails to establish the existence of material issues of fact requiring a trial. The parties' lease explicitly states:

Owner shall maintain in good working order and repair the exterior and the structural portions of the building, including the structural portions of the demised premises, and the public portions of the building interior and the building plumbing, electrical, heating and ventilating systems (to the extent such systems presently exist) serving the demised premises. . . . There shall be no allowance to Tenant for diminution of rental value and no liability on the part of Owner by reason of inconvenience, annoyance or injury to business arising from Owner or others making repairs, alterations, additions or improvements in or to any portion of the building or the demised premises, or in and to the fixtures, appurtenances or equipment thereof. It is specifically agreed that Tenant shall not be entitled to any setoff or reduction of rent by reason of any failure of Owner to comply with the covenants of this or any other article of this lease. Tenant agrees that Tenant's sole remedy at law in such instance will be by way of an action for damages for breach of contract.

(NYSCEF Doc. No. 12, ¶4). Consequently, respondent's claim of partial constructive eviction caused by the erection of scaffolding is barred by this exculpatory provision of the parties' lease (see Bd. of Managers of Saratoga Condo. v Shuminer, 148 AD3d 609 [1st Dept 2017]; Cut-Outs, Inc. v Man Yun Real Est. Corp., 286 AD2d 258 [1st Dept 2001]). Notably, respondent also does not state that it ever vacated or abandoned even a portion of the demised premised, which is a [*3]necessary precondition to asserting a defense of partial constructive eviction (see Minjak Co. v Randolph, 140 AD2d 245 [1st Dept 1988]).

Respondent next argues that petitioner should not be awarded summary judgment because respondent made a good faith effort to repay the outstanding arrears owed (see NYSCEF Doc. No. 24, ¶¶10-12). While the court acknowledges respondent's efforts, they do not provide a legal defense to this summary non-payment action.

As respondent fails to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact, petitioner's motion for summary judgment is granted. The branch of petitioner's motion seeking dismissal of respondent's affirmative defenses is denied as moot as this court grants summary judgment to petitioner.

Lastly, the branch of petitioner's motion to amend its petition to date is granted. It is established practice in commercial landlord-tenant nonpayment proceedings to permit amending the petition to include all rent that accrued after the commencement of the proceeding (see 36 Main Realty Corp. v Wang L. Off., PLLC, 49 Misc 3d 51 [App Term, 2d Dept 2015]; GSL Enters., Inc. v Newlinger, NYLJ, May 24, 1996, at 25, col. 6 [App Term, 1st Dept 1996]; C.F. Monroe, Inc. v Nemeth, NYLJ, Oct. 25, 1994, at 25, col. 1 [App Term, 1st Dept 1994]). Respondent does not oppose this branch of petitioner's motion. Therefore, the petition is amended to reflect an amount demanded of $171,718.30, through and including April 2024, inclusive of legal fees.

Accordingly, it is hereby

ORDERED, that the branch of petitioner's motion to amend the petition to date is granted and petitioner's petition is amended to include all amounts due through April 2024, in the amount of $171,718.30, inclusive of legal fees; it is further

ORDERED, that the branch of petitioner's motion for summary judgment is granted. Petitioner is awarded a final judgment of possession of the subject premises as against I SLEEP MANAGEMENT LLC. Issuance of the warrant of eviction is forthwith, the earliest execution date is July 2, 2024. Petitioner is awarded a money judgment against I SLEEP MANAGEMENT LLC in the amount of $171,718.30, inclusive of attorneys' fees; and it is further

ORDERED, that the branch of petitioner's motion to dismiss respondent's affirmative defenses is denied as moot.

This constitutes the decision and order of this court.