The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 24, 26, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 46, 47, 48, 49, 50, 51, 52, 53, 54 were read on this motion for SUMMARY JUDGMENT.

Plaintiff, 45-47-49 Eighth Avenue LLC, has brought this action against defendant, Joseph Conti, to enforce Conti's personal guarantee of a commercial lease. Plaintiff moves for summary judgment in lieu of complaint under CPLR 3213 to collect on unpaid lease obligations in the amount of $1,827,750.20, plus attorney fees. Defendant cross-moves to dismiss based on New York City Administrative Code § 22-1005. Defendant also seeks summary judgment for no less than $10,000 on his counterclaim against plaintiff for commercial tenant harassment under New York City Administrative Code § 22-902 (a) (14) and § 22-903. Plaintiff's motion is denied. Defendant's cross-motion is granted in part and denied in part.

On July 1, 2017, plaintiff and Ichiban Nom LLC (tenant) entered into a 10-year lease for commercial property in Manhattan. (See NYSCEF No. 7.) On the same date, defendant, tenant's principal, signed a guarantee regarding certain of tenant's lease obligations. (See NYSCEF No. 5.) Tenant then opened and operated a restaurant at the premises.

Effective March 16, 2020, to combat the COVID—19 pandemic, Governor Andrew M. Cuomo issued executive order 202.3, which ordered all restaurants in the state of New York to cease serving patrons food or beverage on-premises. Tenant ceased its on-premises service and attempted to establish a take-out/delivery business. According to defendant, that more limited business did not cover tenant's operating expenses. (NYSCEF No. 36 at ¶ 10.) On or about April [*2]13, 2020, tenant sent a letter to plaintiff, stating that it would vacate and surrender the premises in six months. (NYSCEF No. 8.) Tenant stopped paying rent in May 2020.

New York City Administrative Code § 22-1005 became effective on May 26, 2020. (See Local Law No. 55 (2020) of City of NY § 1.) Under this statute, "provision[s] in a commercial lease or other rental agreement involving real property located within the city" (emphasis added) that provide for natural persons who are not the tenant to become personally liable for certain debts are unenforceable if (i) the tenant was required to cease serving food or beverage for on-premises consumption under executive order 202.3 and (ii) the default or other event causing personal liability occurred between March 7, 2020 and September 30, 2020. (Id.)

In June 2020, plaintiff served tenant with a notice of termination, effective July 19, 2020. (NYSCEF No. 9.) Tenant vacated the premises on July 18, 2020, and mailed plaintiff the keys. Plaintiff commenced this action on August 25, 2020.

Effective September 28, 2020, the language of § 22-1005 was modified to include "provision[s] in a commercial lease or other rental ag 11 AD3d 263, 265 [1st Dept 2004].) In the context of the COVID—19 pandemic, the Appellate Division, First Department, rejected the defenses of impossibility and frustration of purpose where the tenant, an electronics store that was shuttered for a period because of pandemic-related executive orders but then reopened for curbside service, had failed to pay rent during the pandemic. (558 Seventh Ave. Corp. v Times Sq. Photo Inc., 194 AD3d 561, 562 [1st Dept 2021].)

Here, defendant argues that operating a restaurant was prohibited by executive order 202.3 and thus impossible. This argument is not persuasive. First, tenant was at all times permitted to run a restaurant, albeit subject to certain restrictions. Second, the issue is not whether tenant was excused from operating the restaurant, but whether tenant was excused from performing its financial lease obligations. In that regard, the pandemic and the changes in tenant's operations necessitated by the executive order disrupted tenant's business. But the subject matter of the contract—the restaurant premises—remained intact and usable. That the executive order required tenant to rearrange its operations to take-out-and-delivery services, which turned out to be less profitable, does not render performance of tenant's financial obligations impossible.

Furthermore, although the lease permits the use of the premises only as a restaurant (NYSCEF No. 7 at §§ 1.11, 3.1), this purpose was not frustrated by the executive order. While the order did require tenant to cease serving food or beverage for on-premises consumption, it did not permanently or completely bar tenant from using the premises as a restaurant. This temporary restriction to take-out-and-delivery services did not frustrate the overall purpose of this 10-year lease. The defenses of impossibility and frustration of purpose are unavailing.

Although the defenses discussed above do not raise factual disputes requiring trial, plaintiff must also establish that it is entitled to summary judgment in lieu of complaint under CPLR 3213, in particular. This court concludes that plaintiff cannot obtain relief under CPLR 3213.

CPLR 3213 is available as a procedural mechanism only where the plaintiff is relying on an instrument for the payment of money only, and which in itself establishes defendant's monetary obligation to plaintiff. This court is unpersuaded by defendant's argument that the need in this case to refer to straightforward extrinsic submissions to ascertain the precise sum payable under the guarantee does not preclude CPLR 3212 treatment of the guarantee. (See Punch Fashion, LLC v Merchant Factors Corp., 180 AD3d 520, 522 [1st Dept 2020], lv dismissed sub nom. Merchant Factors Corp. v Cleary, 35 NY3d 1124 [2020].) But the court agrees with defendant that the guarantee is not an instrument for the payment of money only.

An agreement guaranteeing both payment and performance does not qualify as instrument for payment of money only. (Punch Fashion, LLC, 180 AD3d at 521; Times Sq. Assoc. v Grayson, 39 AD2d 845, 845 [1st Dept 1972].) In the guarantee at issue, defendant [*4]"unconditionally guarantee[d] to Landlord . . . the full and timely payment, performance and observance of, and compliance with all of Tenant's obligations under the Lease, including, without limitation, the full and prompt payment of all fixed annual rent, Additional Rent and all other charges and sums" due under the lease. (NYSCEF No. 5.) Tenant's duties under the lease included various nonmonetary obligations. For example, tenant undertook to keep its restaurant open continuously, to maintain the glass in the premises' doors and windows, to keep the premises free of pests and arrange for extermination at regular intervals, to keep and dispose of waste in a certain way, and to prevent odors or noise from emanating beyond the premises. (NYSCEF No. 7 at §§ 3.4, 3.5[a]-[e], 3.5[i].) And, as the above language indicates, the guarantee does not separate these different kinds of duties so as to create a discrete, unconditional obligation to pay rent and additional rent that might form the basis of a CPLR 3213 motion-action—as was the case, for example, in iPayment, Inc. v Silverman (192 AD3d 586, 587 [1st Dept 2021]). The guarantee thus is not an instrument for the payment of money only. Plaintiff's CPLR 3213 motion is denied.

On defendant's cross-motion, defendant argues that § 22-1005 bars the enforcement of plaintiff's claim and warrants dismissal of this action. Plaintiff counters that § 22-1005, as it was originally enacted and in effect when plaintiff commenced this action, only applied to guarantee provisions in commercial lease agreements, and not to separate guarantee agreements. In plaintiff's view, the statute's amended wording, which includes guarantee provisions relating to such leases, may not be applied retroactively. Plaintiff also argues that if applied to the guarantee at issue, § 22-1005 would violate the Contracts Clause of the U.S. Constitution. This court disagrees with plaintiff and finds that § 22-1005 renders parts of plaintiff's claim unenforceable against defendant.

In plaintiff's view, prior to the September 2020 amendment, § 22-1005 only applied to provisions that are actually contained in commercial lease agreements, and not to separate guarantee agreements, such as the guarantee at issue. This argument is unavailing for two reasons.

First, the guarantee at issue is subject to § 22-1005 because the original version of the statute must be construed to include both guarantee provision in and related to commercial lease agreements. It is true that when plaintiff commenced this action in August 2020, § 22-1005 was worded to include only "provisions[s] in a commercial lease or other rental agreement." (See Local Law No. 55 (2020) of City of NY § 1.) It was only after plaintiff filed this lawsuit that the statute's language was amended to include provisions "relating to such a lease or other rental agreement." (See Local Law No. 98 (2020) of City of NY § 1.) However, with the September 2020 amendment, the New York City Council clarified its "intent that [the statute's] personal liability protections apply regardless of whether a personal liability provision appears within a commercial lease . . . itself or . . . a separate agreement relating to the same property." (See Local Law No. 98 (2020) of City of NY § 1, Declaration of Legislative Intent and Findings at ¶ 11.) In view of this clear expression of intent, both the original and amended versions of § 22-1005 must be understood to include guarantee provisions in and relating to commercial lease agreements.

Second, contrary to plaintiff's view, the guarantee is not a separate, stand-alone contract [*5]that was not part of the lease. Rather, the lease itself names defendant as guarantor. (See NYSCEF No. 7 at § 1.8.) The lease also required tenant to deliver to plaintiff, concurrently with the executed lease, "a guaranty executed by the Guarantor in the form annexed [to the lease] as Exhibit H." (See NYSCEF No. 7 at § 25.1.) Exhibit H to the lease, in turn, states that the guarantee is attached to the lease. (See NYSCEF No. 37 at 31.) Based on these provisions, the guarantee is an integrated part of the lease. Even if the original version of § 22-1005 only applied to guarantee provisions in commercial leases, it would cover the guarantee at issue.

Plaintiff raises the issue whether the September 2020 amendment to § 22-1005, which modified the statute's language to include guarantee provisions relating to a commercial lease, may be applied retroactively. As discussed above, on this court's reading of the statute, there is no issue of retroactivity. But even if one were to take a different view and hold that only the September 2020 amendment to § 22-1005 covered guarantee provisions, plaintiff's argument would still fail because the September 2020 amendment must be applied retroactively.

To determine whether a statute may be applied retroactively, it must first be assessed whether the statute's application to events that occurred before its enactment truly has retroactive effect. (See Regina Metro. Co., LLC v New York State Div. of Hous. and Community Renewal, 35 NY3d 332, 364-365 [2020], rearg denied sub nom. Raden v W7879, LLC, 35 NY3d 1079 [2020], and rearg denied sub nom. Taylor v 72A Realty Assoc., L.P., 35 NY3d 1081 [2020].) This is the case if the statute "would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed, thus impacting substantive rights." (Id. at 365 [quotation marks omitted].)

According to plaintiff's interpretation of the original version of § 22-1005, plaintiff had the right to enforce the guarantee against defendant when this lawsuit was filed in August 2020. If the September 2020 amendment of § 22-1005 is applied to the guarantee, this right is impaired in as far as defendant's obligations under the guarantee are rendered unenforceable. This affects plaintiff's substantive rights. The application of the September 2020 amendment of § 22-1005 to the guarantee at issue has retroactive effect.

If a statute is found to have retroactive effect, a presumption against retroactivity is triggered. (Id. at 370.) To overcome this presumption and justify retroactive application, the legislature must have expressed a clear intent to apply the statute retroactively. (Id.) This "expression of intent must be sufficient to show that the legislature contemplated the retroactive impact on substantive rights and intended that extraordinary result." (Id. at 370-371.) Notably, "retroactive intent can be discerned from the nature of the legislation." (Id. at 370.)

Here, there is sufficient expression of legislative intent to overcome the presumption against retroactive application. The City Council was aware that § 22-1005 limited landlords' remedies against individual guarantors. (See Local Law No. 98 (2020) of City of NY § 1, Declaration of Legislative Intent and Findings at ¶ 10.) In spite of that, § 22-1005 renders certain guarantee provisions unenforceable if the relevant default occurred between March 7, 2020, and June 30, 2021. March 7, 2020, was in the past when the statute was enacted in May 2020 and amended in September 2020 and April 2021. This circumstance requires retroactive application by necessary implication and is evidence of a deliberate decision to apply the statute retroactively. For this reason, the September 2020 amendment of § 22-1005 must be applied retroactively.

Plaintiff also argues that if applied to the guarantee at issue, § 22-1005 would violate the Contracts Clause of article I, § 10 (1) of the US Constitution. This court disagrees. To determine whether a state law violates the Contracts Clause, the threshold issue is whether the state law has operated as a substantial impairment of a contractual relationship. If so, the state law must be appropriate and reasonable to advance a significant and legitimate public purpose. (Sveen v Melin, 138 S Ct 1815, 1821-22 [2018].) Unless the state itself is a contracting party, courts "defer to legislative judgment as to the necessity and reasonableness of a particular measure." (Energy Reserves Group, Inc. v Kansas Power and Light Co., 459 US 400, 412-413 [1983].)

Arguably, § 22-1005 imposes a substantial impairment on contractual relationships. It renders certain obligations unenforceable. But in enacting § 22-1005, the City Council and the Mayor pursued the legitimate public purpose of protecting individual guarantors to limit the economic and social damage caused to the city by COVID—19 and the ensuing government regulations. (See Local Law No. 98 (2020) of City of NY § 1, Declaration of Legislative Intent and Findings at ¶¶ 5-7.) Limiting enforceability of certain personal guarantees is not an inappropriate means to achieve this goal. Therefore, § 22-1005 does not violate the Contracts Clause.

Having found that § 22-1005 is applicable to the guarantee at issue, the next question is whether the statute renders plaintiff's entire claim unenforceable against defendant. Plaintiff claims that defendant is liable for unpaid lease obligations in the total amount of $1,827,750.20. This sum comprises the following claims: (a) $101,226.23 due through July 18, 2020, including fixed rent of $54,646, real estate taxes of $7,673.07, water and sewer charges of $2,187.16, and the repayment of rent credit in the unamortized amount of $36,720; (b) $1,689,804, representing rents due for the remaining balance of the lease, and; (c) $36,720 representing the unamortized amount of the repayment of the brokerage commission. Defendant does not dispute plaintiff's claims or its failure to pay but argues that plaintiff's entire claim is unenforceable based on § 22-1005. This court finds that plaintiff's claim is only largely unenforceable against defendant, rather than completely unenforceable.

Section 22-1005 bars enforcement of guarantees against natural persons who are not the tenant for payment of rent, utility expenses, taxes, or fees and charges relating to routine building maintenance owed by the tenant under commercial lease agreements. With the exception of the claim for repayment of the brokerage commission of $36,720—which is unaffected by the statute and remains enforceable against defendant—plaintiff's claims are covered by the statute.

Section 22-1005 bars enforcement only if "[t]he default or other event causing such natural persons to become wholly or partially personally liable for such obligation occurred between March 7, 2020 and June 30, 2021, inclusive" (the COVID-period). To determine if plaintiff's claims for fixed rent, real estate taxes, water and sewer charges, repayment of rent credit, and rent for the lease balance are unenforceable, it must be established whether the defaults or other events causing defendant's liability occurred during the COVID-period.

Plaintiff demands payment of fixed rent for the months of May, June, and July 2020, totaling $54,646. (NYSCEF No. 3 at ¶¶ 15-17.) Under the lease, rent is due in advance on the first day of the month, and a default occurs if tenant fails to pay when due any rent. (NYSCEF [*6]No. 7 at § 2.2, 18.1.) Tenant defaulted on these rent payments in May, June, and July 2020, i.e., during the COVID-period. Plaintiff's claim for fixed rent in the amount of $54,646 is unenforceable against defendant.

Plaintiff also demands payment of real estate taxes in the amount of $7,673.07 due under § 6.2 of the lease. (NYSCEF No. 3 at ¶¶ 18-22.) Under exhibit F of the lease, tax payments are due on demand after tenant is invoiced for the amount. (NYSCEF No. 37 at 29 ¶ 3.) Tenant was invoiced for real estate taxes on June 18, 2020, payable within 10 days. (NYSCEF No. 10.) As real estate taxes were due on June 28, 2020, tenant defaulted during the COVID—period. Plaintiff's claim for real estate taxes in the amount of $7,673.07 is unenforceable against defendant.

Plaintiff further demands payment of water and sewer charges in the amount of $2,187.16. (NYSCEF No. 3 at ¶¶ 23-30.) Under the lease, tenant must pay water and sewer charges promptly when due and payable. (NYSCEF No. 7 at § 8.1.) In the amount of $1,155.81, this claim is unaffected by § 22-1005, because plaintiff failed to pay this sum in 2019. (See NYSCEF No. 11 [bill for $618 dated December 9, 2019] and NYSCEF No. 14 at 3 [tenant ledger showing unpaid 2019 charges of $537.81].) Tenant also failed to pay water and sewer charges during the COVID-period, namely in the amount of $600.95 in March 2020 (see NYSCEF No. 12 [bill dated March 17, 2020]) and in the amount of $430.40 in June 2020 (see NYSCEF No. 13 [bill dated June 29, 2020]). Plaintiff's claim for water and sewer charges is unenforceable against defendant in the amount of $1,031.35, but enforceable in the amount of $1,155.81.

Plaintiff also demands repayment of rent credit in the amount of $36,720. (NYSCEF No. 3 at ¶¶ 31-33.) Under the lease, tenant only had to pay half of the fixed monthly rent for the first six months, with the other half being given as rent credit. (NYSCEF No. 7 at 24 ¶ B.) In the event of breach, the lease entitles plaintiff to repayment of this credit, "which sum shall be deemed additional rent hereunder and shall be due upon demand by Landlord." (NYSCEF No. 7 at 24 ¶ C.) Plaintiff demanded repayment of the rent credit in its notice of termination in June 2020. (NYSCEF No. 9 at 2 ¶ 2.) Tenant defaulted on this payment during the COVID-period. Plaintiff's claim for repayment of a rent credit of $36,720 is unenforceable against defendant.

Plaintiff further claims that defendant is liable for rent in the amount of $1,689,804 for the balance of the lease term from August 2020 through June 2027. (NYSCEF No. 3 at ¶¶ 34-43.) Plaintiff bases this claim on the language of the guarantee. Under the guarantee, defendant is liable for tenant's obligations under the lease "through and including the date" that tenant has (i) provided 6 months' written notice, (ii) vacated and surrendered the premises, (iii) returned the keys, (iv) repaid the rent credit, (v) repaid the brokerage commission, and (vi) paid all obligations through the date which is the later of either the actual receipt of the payments, or the surrender of the premises, or the receipt of the keys. (NYSCEF No. 5.) Plaintiff claims that neither tenant nor defendant performed these acts (which partly contradicts plaintiff's own submission, see NYSCEF No. 3 at ¶¶ 11-13), and therefore that defendant is liable for these rents. This court concludes that these terms merely state that the guarantee remains in effect until tenant has performed the listed acts. This provision does not establish that defendant is liable for rent for the remainder of the lease term if tenant fails to fulfill these requirements. Plaintiff did not point to any lease provision that establishes such liability, either. In any case, this claim is unenforceable against defendant. It is a claim for rent payments, and tenant's alleged failure to perform the acts required under the guarantee occurred during the COVID-period. Plaintiff's [*7]claim for rent from August 2020 onwards—even if it were established—is unenforceable against defendant.

In summary, plaintiff's claims for fixed rent of $54,646, real estate taxes of $7,673.07, water and sewer charges of $1,031.35, repayment of rent credit of $36,720, and rent for the lease balance of $1,689,804 are barred as unenforceable against defendant. Plaintiff's claims for water and sewer charges of $1,155.81 and repayment of the brokerage commission of $36,720 are not barred.

Defendant also cross-moves for summary judgment against plaintiff for at least $10,000 in damages for commercial tenant harassment under New York City Administrative Code § 22-902 (a) (14) and § 22-903. Defendant's motion is denied; and, upon searching the record under CPLR 3212 (b), plaintiff is granted summary judgment dismissing defendant's tenant-harassment claim.

Defendant lacks standing to raise this claim because § 22-903 grants a right of action only to a "commercial tenant," not to a commercial tenant's guarantor. Defendant's motion must be denied on this basis alone.

In addition, defendant has failed to show that there are no issues of material fact. Section 22-902 (a) (14) defines commercial tenant harassment as "any act or omission by or on behalf of a landlord that (i) would reasonably cause a commercial tenant to vacate covered property, or to surrender or waive any rights under a lease or other rental agreement or under applicable law in relation to such covered property, and (ii) includes . . . attempting to enforce a personal liability provision that the landlord knows or reasonably should know is not enforceable pursuant to section 22-1005 of the code."

Defendant fails to address, let alone prove, that plaintiff's actions would reasonably cause a commercial tenant to vacate the property or surrender or waive any rights. Indeed, such an argument seems difficult to make in this case, since defendant had already vacated the premises when plaintiff filed this lawsuit.

As to the knowledge required under § 22-902 (a) (14), defendant claims that plaintiff knew or should have known that the guarantee is unenforceable but fails to present any evidence for this claim. In addition, after plaintiff brought this action, the City Council deemed it necessary to amend § 22-1005 to clarify that the statute also covers personal guarantee provisions "relating to" commercial leases. (See Local Law No. 98 (2020) of City of NY § 1, Declaration of Legislative Intent and Findings at ¶ 11.) This clarification undermines defendant's suggestion that plaintiff should have known the guarantee was unenforceable when it filed suit.

Accordingly, it is hereby

ORDERED that plaintiff's motion for summary judgment in lieu of complaint under CPLR 3213 is denied; and it is further

ORDERED that the branch of defendant's cross-motion seeking summary judgment under CPLR 3212 dismissing plaintiff's claims is granted as to $1,789,874.42 of the sum sought by plaintiff, denied as to the sum of $37,875.81, and denied as to the application for attorney fees; and it is further

ORDERED that the branch of defendant's cross-motion seeking summary judgment in its favor under CPLR 3212 on defendant's claim for commercial tenant harassment is denied; and it is further

ORDERED that plaintiff as the non-moving party is granted summary judgment [*8]dismissing defendant's tenant-harassment claim, and that claim is dismissed; and it is further

ORDERED that plaintiff's claims for $37,875.81 and reasonable attorney fees are severed and shall continue in the form of a plenary action, and that plaintiff's motion papers shall be deemed a complaint (with supporting affidavits) and defendant's opposition papers shall be deemed an answer, respectively; and it is further

ORDERED that defendant shall serve a copy of this order with notice of entry on all parties.