Astor 207 Props. Corp. v Monfried

[*1] Astor 207 Props. Corp. v Monfried 2022 NY Slip Op 50866(U) Decided on August 24, 2022 Supreme Court, New York County Ramseur, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 24, 2022
Supreme Court, New York County

Astor 207 Properties Corp., Plaintiff,

against

Andrew Monfried, LISA MONFRIED, Defendant.



Index No. 652295/2020

Dakota D. Ramseur, J.

In this action for unpaid rent, plaintiff Astor 207 Properties Corp. (Astor Properties) moves for summary judgment under CPLR 3212 on its cause of action for breach of a lease agreement against defendants Andrew and Lisa Monfried. Further, pursuant to CPLR 3211, it moves to dismiss defendants' first counterclaim, which seeks a declaratory judgment that plaintiff illegally waived or modified the lease's warranty of habitability, and their third counterclaim for fraudulent inducement. Defendants oppose the motion in its entirety. For the following reasons, plaintiff's motions for summary judgment and dismissal are both granted.

BACKGROUND

In October 2019, Astor Properties, as the owner of the luxury condominium building at 235 West 75th Street, New York, New York in the Upper West Side (the premise), entered a lease agreement (the "lease") with defendants Andrew and Lisa Monfried for Unit 1020 (the unit). Starting on October 22, 2019, the lease ran for a one-year term and required defendants to pay $13,000 in monthly rent.

Beginning in December 2019, defendants complained to the premise's property managers [*2]and Precision Air, Astor Properties' separate heating/air conditioning contractor, that their unit's heating system would often malfunction, leaving them without heat for an extended period. (See NYSCEF doc. no. 25, email exchanges.) In one email exchange to Precision Air dated January 20, 2020, Andrew Monfried wrote, "Our room was 56 degrees last night I do believe if it does not get fixed today (and the temp remains as it was last night) that the apartment, without heat is uninhabitable." (Id.) In February, defendants again complained about a lack of a functioning heating system. The property managers explained that the unit's HVAC system would not function until the two units below had completed heating systems. (NYSCEF doc. no. 26.) Despite defendants' protestations during these months, they paid rent through April 1, 2020.

Around May 6, 2020, BP Air—a new contractor hired by Astor Properties to examine the central HVAC systems—conducted an inspection that discovered critical components of the building's water system had not been completed. (NYSCEF doc. No. 31, BP Air service ticket.) In an email sent by BP Air technician Alex Morte on May 21, 2020, Morte expressed the possibility that "it'll [only] be a matter of time before a lot of units experience unit 1020's problems" and that future air conditioning problems may arise as temperatures increased outside. (NYSCEF doc. No. 32.)

On May 12, 2020 (after two months of New York City's stay-at-home orders, but approximately ten days before Morte summarized the findings from BP Air's inspection), Andrew Monfried wrote to Astor's agent stating that "we are moving out of [sic] May 28th." (NYSCEF doc. no. 20 at ¶20, verified complaint.) On May 28th, defendants vacated the premise. As such, they did not pay rent from April 1, 2020, to October 21, 2020.

The Lease

Beyond the monthly rent rate and length of the lease, several other sections are pertinent in this litigation. Section 13 (A) of the lease provides that "the Condominium [FN1] will provide cold and hot water and heat, as required by law You [the lessee] are not entitled to any rent reduction because of a stoppage or reduction of the above services unless provided by law." (NYSCEF doc. no. 4, lease.) Section 16 (B) provides, "If you move out of the Apartment (abandonment) before the end of this Lease without the consent of Owner, this Lease will not be ended. You will be responsible for each monthly payment of rent as it becomes due." (Id.) Section 17 defines "default" to include Section 16, in that a lessee may default by permanently moving out before the lease ends. Section 17 also defines default to include failing to carry out any agreement or provision of the lease. As to remedies for defaulting, Section 18 (C) provides that, whether the Apartment is re-rented or not, the lessee must pay to Owner as damages: "(i) the difference between the rent in this Lease and the amount, if any, of the rents collected in any later lease of the Apartment for what would have been the remaining period of this Lease; and (ii) Owner's expenses for the cost of putting the Apartment in good condition for re-rental; and (iii) Owner's expenses for attorney's fees." (Id.) Moreover, the lease states that the owner cannot [*3]waive these damages unless the failure to re-rent to another tenant is due to the owner's deliberate inaction. Most relevantly for defendants' counterclaims, Section 8, entitled "Warranty of Habitability," states, "All the sections of this lease are subject to the provisions of the Warranty of Habitability Law in the form it may have from time to time during this lease. Nothing in this lease [emphasis added] can be interpreted to mean that You have given up any of your rights under that law."

The Instant Action

On June 5, 2020, plaintiff filed the instant action for unpaid rent running through the end of the lease term and totaling $86,806.45. On August 3, 2020, defendants filed their verified answer, in which they assert counterclaims for (1) a declaratory judgment that the lease is void as against public policy; (2) breach of the lease agreement; (3) fraudulent inducement; (4) breach of the warranty of habitability; (5) breach of the covenant of quiet enjoyment; and (6) constructive eviction. On September 22, 2020, prior to the completion of discovery, plaintiff filed the instant motion for summary judgment under CPLR 3212 and to dismiss defendants' first and third counterclaims under CPLR 3211; on October 22, defendants filed opposition papers for both branches of plaintiff's motion; and on November 30, plaintiff filed its reply. Consequently, on July 8, 2021, the motion was marked fully submitted. However, on August 23, 2022, defendants submitted a sur-reply without the Court's permission.[FN2] (See 22 NYCRR Section 202.8-c.) Thereafter, by order dated August 25, 2022 (NYSCEF doc. No. 41), the Court exercised its discretion to consider defendants' sur-reply but provided plaintiff the opportunity to respond.

DISCUSSION

In a motion for summary judgment under CPLR 3212, the moving party bears the initial burden of establishing that no material issues of triable fact exist and that he is entitled to judgment as a matter of law. (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986].) Once the movant has made this prima facie showing of entitlement, it is incumbent on the opposing party to produce evidence in admissible form sufficient to raise a triable issue of material fact. (Zuckerman v City of New York, 49 NY2d 557, 562 [1980].) Since summary judgment is an extreme remedy, the Court must draw all reasonable inferences in favor of the non-moving party. (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012].) A summary judgment motion should be denied where there is doubt as to the existence of material facts or where different conclusions can reasonably be drawn from the evidence. (Santos v Temco Serv. Indus., 295 [*4]AD2d 218, 218-219 [1st Dept 2002].)

Plaintiff's Prima Facie Showing of Entitlement

Plaintiff has sufficiently demonstrated the existence of a valid lease and that defendants defaulted under Section 17 of the lease by failing to pay rent from April 1, 2020, to May 28, 2020, (during which defendants occupied their unit) and from May 28, 2020, to October 21, 2020 (during which their unit remained unoccupied after they vacated). (See Traders Co. v AST Sportswear, Inc., 31 AD3d 276, 277-278 [1st Dept 2006] [affirming lower court's finding of liability where a plaintiff submitted proof in admissible form of a valid lease and unpaid rent]; 138 NY Realty v Conroy, NYLJ Aug. 6, 2019, at 7-8 [Sup Ct. NY County 2019] [finding liability where documents clearly and unambiguously require payment of rent in the event of defendant's default].)

Defendants argue that the lease is invalid because, in its interpretation, Section 13 (A) improperly and illegally delegates the warranty of habitability to an outside party. Section 235-b (2) of the Real Property Law, entitled "Warranty of habitability," provides, "Any agreement by a lessee or tenant of a dwelling waiving or modifying his rights as set forth [in § 235-b (1)] shall be void as contrary to public policy." They argue that the lease improperly modifies their rights under this section: instead of holding plaintiff responsible for the warranty, the lease delegates it to a third party, i.e., the Condominium. (See NYSCEF doc. no. 8 at ¶35, verified answer with counterclaims; NYSCEF doc. No. 23 at 20, def. memo of law.) If true, defendants contend, the entire lease (not just the section itself) should be voided against public policy. (Id.)

Yet their interpretation of the lease cannot be correct. Even under the modification, where the lease designated to plaintiff's agent responsibility for the warranty of habitability, defendants are entitled to the full scope of protections that the warranty provides. The modification as to which entity owes them the warranty of habitability quite obviously does not purport to affect or modify the substantive right owed. Thus, defendants have not demonstrated the lease "modified [their] rights" under §235-b.[FN3] Further, Section 8 of the lease eliminates even the possibility that Section 13 modified their rights under the warranty. Discussed supra, Section 8 provides, "Nothing in this lease can be interpreted to mean that You have given up any of your rights under that law." (NYSCEF doc. no. 4 at ¶8.) Contrary to defendants' interpretation, under this section, no substantive contractual modification of the warranty could be interpreted to have taken place. As such, the Court finds defendants' contention that the lease is invalid to be unpersuasive.[FN4]

The contention that the lease modified the warranty of habitability is also the very basis of defendants' declaratory judgment counterclaim. (NYSCEF doc. no. 8 at ¶35, ¶39; ["The lease provided to defendants by plaintiff improperly and illegally waived and/or modified Plaintiff's obligation to provide heat in the Premise. Paragraph 13. A of the lease provides, in pertinent part, "The Condominium will provide heat, as required by law Based on the foregoing, defendants are entitled to a judicial declaration that the Lease is void ab initio."] Given the Court has already concluded it has no basis in law, the Court further grants plaintiff's motion to dismiss defendants' first counterclaim under CPLR 3211.

Existence of Triable Issues of Fact

Defendants argue that several of their counterclaims raise issues of fact that preclude the Court from granting summary judgment. The Court addresses each in turn.

Whether Plaintiff Breached the Warranty of Habitability

Defendants contend that plaintiff is not entitled to summary judgment because material issues of fact exist as to plaintiff's performance under the lease, including whether the lack of heating and air-conditioning made the apartment so uninhabitable as to constitute a breach of the warranty of habitability. (NYSCEF doc. no. 23 at 13-15.) If anything, defendants argue, the question for the trier of the fact is not one of liability but of damages: given plaintiff acknowledges the heating issues in the building, they are entitled to a rent abatement for, at least, December, January, and February. (Id.) Conversely, for plaintiff, whether it breached the warranty of habitability such that defendants are entitled to a rent abatement for those months very much is a triable issue but one wholly separate from its summary judgment motion. (NYSCEF doc. no 17.) For this motion, the issue is whether defendants defaulted from April 1st, 2020, through October 21, 2020. Answering that question, plaintiff asserts, does not require the Court to account for months that defendants already paid rent. (Id. at 18 ["Nor can the Monfried's counterclaim for rent abatement for the winter months serve as a setoff defense for unpaid rent for the later months"].)[FN5]

The Court concludes that defendants' counterclaim for breach of the warranty of habitability does not raise a triable issue of material fact as to whether plaintiff is entitled to unpaid rent from April 1, 2020, through October 21, 2020. The First Department has held that the protections provided by the warranty of habitability to lessees extends only so far as they inhabit the leased premise. (Andreas v 186 Tenants Corp., 2022 NY App. Div. Lexis 2892 at *2-[*5]3 [1st Dept 2022] [damages arising from an alleged breach of the warranty could not be sustained, as plaintiffs averred that they did not live in the apartment full time but only for a few days per year]; citing Genson v Sixty Sutton Corp., 74 AD3d 560, 560 [1st Dept 2010] ["Plaintiff was not entitled to compensation for breach of warranty of habitability during a period in which she was not living there."].) In this context, the warranty of habitability does not protect lessees who fear a prospective breach and move out in anticipation. Here, even granting the proposition that defendants vacated their apartment because they anticipated a breach,[FN6] they cannot claim protection of the warranty after they vacated the apartment. The practical effect of this rule is that their counterclaim does not raise material issues of fact from May 28, 2020, through October 2020, leaving April 1st through May 28, 2020, as the only remaining potential timeframe in which the counterclaim creates issues of fact. But neither Andrew Monfried's affidavit nor defendants' memorandum of law provides any facts that could be interpreted or construed as a breach of the warranty during this period.

Consequently, defendants' counterclaim does not present any issues of material fact that prevents the Court from granting plaintiff's motion.

Whether Plaintiff has a Liquidated Damages Claim

Plaintiff argues that its claim is a liquidated one because it is for a set sum of unpaid rent from April 1, 2020, to October 21, 2020; it also argues that defendants' warranty-of-habitability counterclaim is an unliquidated one because, if proven, it would only entitle them to a partial rent abatement to be determined based on the severity of the breach and its duration. The distinction between a liquidated and unliquidated claim is important, plaintiff argues, because an unliquidated claim may not be used to defeat summary judgment on a liquidated claim. (Willett v Lincolnshire Mgmt., 756 NYS2d 9, 10 [1st Dept 2003] ["There is no right to set off a possible, unliquidated liability against a liquidated claim that is due and payable."]) In opposition, defendants maintain that plaintiff actually has an unliquidated claim as well. (They do not dispute their own unliquidated claim.) In their view, plaintiff did not attach evidence of its mitigation effort to re-lease the apartment, which the lease—in Section 18 (C)—and Property Law 227-e mandate. They argue, therefore, that plaintiff has not met its burden of proof, and its claim is unliquidated because, without this evidence, its claim is no longer for a set sum.

However, the premise that plaintiff did not submit evidence of its mitigation efforts is unsupported by the record. CPLR 105 [U] provides that verified pleadings "may be utilized as an affidavit whenever the latter is required." Plaintiff submitted its verified complaint as part of its moving papers and therein asserted that it had relisted the apartment for the remainder of the lease term at the monthly rate defendants had previously been paying. And in response to defendants' assertion that it had not submitted evidence as to its mitigation efforts, plaintiff submitted an additional affirmation from David Sahargun, a partner at Grant, Hermann, Schwartz & Klinger LLP (plaintiff's managing agent). The affidavit noted that plaintiff listed the unit and received an offer in June 2020 to re-rent the property for $10,000 but the [*6]prospective tenant backed out after she determined she needed a larger apartment to accommodate her son's living arrangements. (NYSCEF doc. No. 36 at ¶2-4, aff. of Sahargun.)[FN7]

In defendants' sur-reply,[FN8] they argue that these mitigation efforts did not comport with Real Property Law section 227-e's requirement that the landlord in good faith "take reasonable and customary actions to rent the premise at fair market value or at the rate agreed to during the term of the tenancy." (See Real Property Law §227-e.) Yet their evidence does not demonstrate how plaintiff might have failed to act in good faith. Indeed, plaintiff's response to the sur-reply shows that it undertook reasonable and customary actions to rent the premise at fair market value. Contrary to defendants' assertions, it relisted the apartment just ten days after defendants vacated (NYSCEF doc. no. 44), even finding a potential tenant during the COVID-19 pandemic in late June 2020. (NYSCEF doc. no. 43, supp. aff. of Sahargun.) When plaintiff discovered potential damage to the unit, it withdrew it from the market only to put it back up once the repair work had been completed. (Id.) Plaintiff has satisfied its burden showing it took reasonable and customary actions to re-rent the apartment. (See 14 E. 4th St. Unit 509 LLC v Toporek, 203 AD3d 17, 23-24 [1st Dept 2022] [holding no triable issues precluded summary judgment where landlord submitted an affidavit from a person with knowledge of the steps taken to re-rent the apartment].)

Whether Plaintiff Constructively Evicted Defendants

Defendants further assert that plaintiff's wrongful actions substantially and materially deprived them of the beneficial use and enjoyment of the apartment, i.e., that plaintiff constructively evicted them. (See Barash v Pennsylvania Terminal Real Estate Corp., 26 NY2d 77, 84 [1970] [restating the principle that constructive eviction requires a tenant to relinquish possession of the subject premise because she cannot claim substantial interference with the beneficial enjoyment of her property and remain in possession without paying rent].) In their answer, defendants assert that the chronic lack of heat and air conditioning, coupled with improper ventilation due to scaffolding outside their unit, substantially deprived them of their enjoyment of the apartment. (NYSCEF doc. no. 8 at ¶62.)

If the counterclaim is broken down based on each alleged deprivation, as plaintiff suggests, the problem with defendants' constructive eviction claim becomes more evident,[FN9] specifically (for now) as it relates to whether material issues of fact exist. The lack of heating in defendants' unit is perhaps the most significant alleged deprivation they experienced, especially as they vacated the apartment before alleging any adverse impact from the lack of air conditioning. Assuming arguendo the severity of this type of deprivation amounts to a constructive eviction (which, it bears repeating, remains strenuously disputed to this point), defendants have not put forth any evidence that they abandoned the premise with reasonable promptness or that the complained-of conditions were what caused them to vacate. (See M.Y. Realty Corp. v Atl. First Fin. Corp., 19 AD3d 156, 156 [1st Dept 2005] [unanimously affirmed motion court's finding that the complained-of conditions did not cause the defendant to vacate and defendant did not abandon premise with reasonable promptness].)

The record shows that, from their last complaint in February, they waited approximately two and a half months before first communicating their desire to vacate and then another three weeks before actually doing so. Moreover, in early May, when they communicated their desire to abandon the premise, they were no longer experiencing the type of deprivation that relates to lack of central heating. (Defendants do not dispute this.) That defendants do not challenge this timeline demonstrates a lack of triable issues of fact on the issue of whether they were constructively evicted. (See NY 46th LLC v Gerard Addeo, CPA, P.C., 2017 Slip Op 32485 [U] at *8-9 [Sup. Ct. NY County, Nov. 17, 2017] [dismissing constructive-eviction counterclaim where the record is devoid of evidence explaining the delay in vacating the premise].)

Further, concerning defendants' lack of air conditioning heading into summer, Andrew Monfried implicitly acknowledges that they had not yet experienced any ill effects of the lack of air conditioning. This is most clearly demonstrated by focusing on the future-oriented language in the relevant portion of his affidavit. He alleges: "The fact that confirmation was provided by two different repair companies that no air conditioning could be provided to the Apartment convinced us that we would spend the summer without air [emphasis added];"[FN10] "[At the time of the decision] After having endured a Winter with no heat we were not willing to suffer through a New York City summer without air conditioning;" and "It was for that reason, none other, that we determined that we could not continue to live in the Apartment." (NYSCEF doc. no. 22 at ¶15.) But conditions that pose a prospective threat to a tenant's use and enjoyment of their premise cannot form the basis of a constructive eviction claim as there has been no substantial and material deprivation of their use and enjoyment of the premise yet.

Just as importantly, defendants have cited no provision in the contract or at law that entitles them to air conditioning: Section 13 (A) only contemplates "the Condominium provid[ing] cold and hot water, and heat, as required by law;"[FN11] and the warranty of habitability does not extend so far as to require a landlord to provide air conditioning, even during the summer. (See Solow v Wellner, 86 NY2d 582, 587-589 [1995] [rejecting Civil Court's interpretation of § 235-b that the warranty of habitability provides protections greater than what are essential components of a residential lease, including air conditioning][FN12] ; Baker v Bros. Advisors, LLC v Galloway Chaplin Capital, 2009 NY Slip Op. 31745[U] at *7-8 [Sup. Ct. NY County July. 23 2009] [holding that plaintiff's claim—based on a non-function air conditioning unit—does not rise to the level of a breach of the warranty of habitability because they fail to articulate a violation of an essential function].) Defendants' inability to point to an obligation on plaintiff's part to provide air-conditioning ultimately proves fatal to its claim. (See Barash, 26 NY2d at 82 ["Of course, [to state a claim] the tenant must have been deprived of something to which he was entitled under or by virtue of the lease."].)

To summarize: defendants did not vacate their apartment while they were experiencing the lack of heat or even within a short time thereafter; they vacated in anticipation of potential problems with their air conditioning; and they failed to show entitlement to air conditioning under the lease or at law. Taken together, the Court concludes that defendants have not demonstrated material issues of fact on their constructive eviction counterclaim that prevents the Court from granting summary judgment.[FN13]

The Court's conclusion here is important in another respect. Though plaintiff has not moved to dismiss defendants' counterclaim for constructive eviction, its summary judgment motion cannot be granted while the counterclaim survives. In demonstrating as a matter of law it is entitled to the unpaid rent from April 1 onward, plaintiff has shown, as it must, the absence of any material issues of fact as to whether a constructive eviction occurred. Where required, appellate precedent permits this Court to search the record and grant summary judgment on causes of actions and issues that are properly the subject of the motions before it. (See Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996] [holding that a court's power to search the record and afford summary relief is limited to causes of action or issues that are the subject of the motions before the court]; Baseball Office of the Comm'r v Marsh & McLennan, 295 AD2d 73, 82 [1st Dept 2002] ["A motion for summary judgment 'on one claim or defense does not provide a basis for searching the record and granting summary judgment on an unrelated claim or defense'"]) Here, plaintiff's breach-of-the-lease-agreement cause of action and defendants' counterclaim for constructive eviction are intertwined such that both are the subject of the summary judgment motion. Thus, the Court has the power to search of the record; after so doing, and because defendants' constructive eviction claim fails as a matter of law, the Court grants plaintiff summary judgment on defendants' counterclaim.

Plaintiff's Motion to Dismiss Defendants' Fraudulent Inducement Counterclaim

Plaintiff's motion to dismiss defendants' fraudulent inducement counterclaim is granted as duplicative of their breach of contract claim.[FN14] For a fraudulent inducement claim to be considered a separate, cognizable cause of action, the fraud or misrepresentations alleged must concern an interest collateral to the opposing party's contractual obligations. (Cronos Group Ltd. v XCompIP, LLC, 156 AD3d 54, 67 [1st Dept 2017]; citing Fairway Prime Estate Mgt., LLC v First Am. Intl. Bank, 99 AD3d 554, 557 [1st Dept 2012].) As the Court explained, an "insincere" promise to perform certain obligations while having no intention of actually doing so constitutes a fraudulent misrepresentation of material fact. (Id.) But where the promised performance has become an obligation under an enforceable contract, and the only damages sought are those recoverable for a breach of contract, this "insincere" promise to perform cannot make out a separate claim for fraudulent inducement because it is redundant of the claim for breach of contract. (Id.)

Here, defendants' breach-of-contract counterclaim is premised on plaintiff's failure to provide heating and air conditioning despite having an obligation under the lease to do so—just as their fraudulent-inducement counterclaim rests entirely on plaintiff's alleged misrepresentation that it would provide heating and air conditioning. (Compare NYSCEF doc. no. 8 at ¶42, second counterclaim ["Plaintiff failed to provide services and facilities required of Plaintiff to be provided under the Lease and Law"] with NYSCEF doc. no. 8 at ¶49-52, third counterclaim ["Plaintiff was aware that there was no heat or air conditioning services supplied to the premise Plaintiff deliberately and intentionally withheld from Defendants this material fact [*7]before Defendants entered into the Lease."].) Moreover, defendants seek the same amount in damages—$79,583.00 plus interest—for both causes of action. As clearly demonstrated, defendants' allegation that plaintiff fraudulently induced them into entering the lease agreement does not concern a collateral promise separate from obligations in the lease. The alleged misrepresentation at the heart of their fraudulent inducement cause of action—that plaintiff had no intention of providing heat or air conditioning—is of the "insincere" promise-to-perform-type that the First Department has held is not collateral to the contract. (Fairway, 99 AD3d at 557; HSH Nordbank AG v UBS AG, 95 AD3d 185, 206 [1st Dept 2012] ["if the promise concerned the performance of the contract itself, the fraud claim is subject to dismissal as duplicative of the claim for breach of contract."].) Consequently, the Court dismisses defendants' fraudulent inducement counterclaim.

Accordingly, it is hereby

ORDERED that plaintiff Astor 207 Properties Corp.'s motion for summary judgment pursuant to CPLR 3212 on its breach-of-contract cause of action against defendants Andrew and Lisa Monfried is granted; and it is further

ORDERED that plaintiff's motion pursuant to CPLR 3211 is granted, and defendants' first counterclaim for a declaratory judgment, third counterclaim for fraudulent inducement, and sixth counterclaim for constructive eviction are dismissed; and it further

ORDERED that parties shall appear at 80 Centre Street, Courtroom 325 on September 27, 2022, at 11:00 a.m. for a discovery conference; and it is further

ORDERED that the Clerk of the Court shall enter judgment accordingly; and it is further

ORDERED that counsel for plaintiff shall serve a copy of this order, along with notice of entry on all parties within ten (10) days of entry.

DATE 8/24/2022
DAKOTA D. RAMSEUR, J.S.C. Footnotes

Footnote 1:As will be discussed infra, defendants' counterclaim for a declaratory judgment is premised on plaintiff having improperly delegated responsibility for the warranty of habitability to the Condominium (and away from itself). If true, defendants argue the lease would be void against public policy.

Footnote 2:As can be seen from the date, defendants submitted their sur-reply more than a year after the motion had been marked submitted. Moreover, it did so on the same day as, and in fact, immediately prior to, oral arguments on the motion. As such, defendants relied on facts in oral arguments that were unbeknownst to the Court at that time. The Court originally ordered both parties to submit supplemental memorandums of law on the issues raised in the sur-reply. However, two days later, the Court issued an amended order contravening its first one and limited further arguments to give plaintiff the opportunity to respond to the sur-reply.

Footnote 3:Defendants only authority for the proposition that a delegation of the warranty to a third party alters the substantive right comes from Permanent Mission of the Republic of Estonia v Thompson (477 F. Supp. 2d 615, 618-619 [SDNY 2007]) in a string of quotations taken out of context. There, the lease delegated the warranty of habitability to the tenant himself. Quite obviously this is not analogous to the lease at issue here.

Footnote 4:Having determined that Section 13 (A) does not modify the substantive rights of defendants, the Court need not address their additional contention that the remedy for a modification of the substantive right would be to void the entire lease. However, it is worth noting that defendants themselves operated for six months under the assumption that they had a valid lease.

Footnote 5:While neither party raises defendants' breach-of-the-covenant-of-quiet-enjoyment counterclaim on this motion, the Court recognizes that the issues and principles raised under the warranty for habitability are similar if not identical to those that would be raised by the quiet-enjoyment covenant. For example, just as with the warranty of habitability, any triable issue of fact the covenant raises would, from plaintiff's view, be immaterial to the extent they are limited to the post-May 28 time period.

Footnote 6:Plaintiff disputes whether defendants vacated the apartment due to heating and air conditioning issues with their unit. It asserts that they simply sought to live outside the city during the summer months, especially during the COVID-19 pandemic.

Footnote 7:Because defendants raised the issue of whether plaintiff had included mitigation efforts in its moving papers, the Court concludes that plaintiff's follow-up affirmation is properly considered in reply.

Footnote 8:In exercising its discretion to consider the sur-reply, the Court recognized a trade-off. It could refuse to consider the sur-reply as a strict reading of 22 NYCRR Section 202.8-c would require. ("Absent express permission in advance, sur-reply papers, including correspondence, addressing the merits of a motion are not permitted Materials submitted in violation hereof will not be read or considered.") However, doing so would require the Court to ignore alleged deficiencies in plaintiff's efforts to mitigate defendants' damages and, thereby, undermine a substantive right the legislature has provided to defaulting tenants. As the Court has discretion to consider sur-replies (Gastaldi v Chen, 56AD3d 420 [2d Dept 2008]; U.S. Bank Trust, N.A. v Rudick, 156 AD3d 841 [2d Dept 2017]), it opted instead to accept the sur-reply but provide plaintiff with two weeks to file a memorandum of law in response.

Footnote 9:The Court will consider the contention raised in defendants' memo of law that lack of heat contributed to their constructive eviction. However, Andrew Monfried contradicts this assertion when he explains, in his affidavit, that the prospect of not having air conditioning during summer in New York City was the reason "none other, that we determined we could not continue to live in the Apartment." (NYSCEF doc. no. 22 at ¶15.)

Footnote 10:Upon a close reading of their motion papers, it appears that defendants decided to vacate the apartment before Alex Morte provided any final determination as to the cause of the lack of air conditioning or how long it would last. (Compare NYSCEF doc. no. 22 at ¶13, with NYSCEF doc. no. 31 at 1-2)

Footnote 11:Defendants' claim that the lease provides for air conditioning under Section 13 (D), entitled "Appliances," is meritless.

Footnote 12:Defendants rely on Whitehouse Estates, Inc. v Thompson (87 Misc 2d 813 [Civ. Ct. NY County 1981]) for the proposition that air conditioning is included in the warranty of habitability under the covenant that the premise is "fit for the uses reasonably intended by the parties." (See also Mantica R Corp. NV v Malone, 106 Misc 2d 953 [Civ. Ct. NY County 1981].) Yet, 14 years after these decisions, Solow rejected this expansive view of § 235-b. "The statutory reference to 'uses reasonably intended by the parties,' rather than referring to a broad spectrum of expectations arising out of the parties' specific contractual arrangement, reflects the Legislature's concern that tenants be provided with premises suitable for residential habitation, in other words, living quarters having 'those essential functions which a residence is expected to provide.'" (Solow, 86 NY2d at 588-589; citing Park West Mgt. Corp. v Mitchell, 47 NY2d 316 [1979].)

Footnote 13:Defendants argue that the motion should be denied because the discovery process, still incomplete at this time, may uncover facts that support its opposition that are in the exclusive possession of plaintiff. (NYSCEF doc. No. 23 at 16.) Undoubtedly defendants will have the opportunity to complete discovery to support their warranty-of-habitability counterclaim for rent abatement. But with respect to the constructive-eviction counterclaim, completion of the discovery process would not aid them in their opposition. Any explanation for not abandoning the premise with reasonable promptness should have been submitted as evidence in this motion considering such evidence lies exclusively with defendants, and no amount of discovery will change whether plaintiff was responsible, in the lease or at law, for air conditioning.

Footnote 14:As to any alleged fraudulent omissions made to defendants, the Court does not need to address plaintiff's assertion that defendants have failed to set out a fiduciary duty that would require it to disclose those facts.