In this commercial contract action, plaintiff moves for partial summary judgment on the complaint, while defendants cross-move for partial summary judgment to dismiss the same portion of the complaint (motion sequence number 001). For the following reasons, the motion is granted in part and denied in part, and the cross motion is denied in full.

Defendant 225 5th LLC (225 5th), a Delaware limited liability company licensed to do business in New York, is the owner and sponsor of a condominium development project (the project) that involves a building located at 225 5th Avenue in the County, City and State of New York (the building). See Notice of Motion, Exhibit G (complaint), ¶¶ 2, 6. Plaintiff 225 Fifth Avenue Retail, L.L.C. (plaintiff), a New York limited liability company, is the purchaser of two commercial condominium units in the building. Id., ¶¶ 1, 6. Co-defendants the El-Ad Group, Ltd. (El-Ad), a Delaware company licensed to do business in New York, and Industrial Buildings Corporation, Ltd. (IBC), an Israeli corporation that transacts business in New York, were 225 5th's guarantors on the transaction. Id., ¶¶ 3, 4, 31, 37.

On December 9, 2005, plaintiff's predecessor in interest, non-party corporation Wm. Neville & Sons Construction, Ltd. (Neville), entered into a contract with 225 5th to purchase the subject commercial condominium units (the purchase agreement). Id.; Shaw Affirmation, ¶ 5; Notice of [*2]Cross Motion, Exhibit A. Plaintiff and 225 5th eventually closed the transaction on November 9, 2006,^[FN1] at which time they also executed the following documents: 1) two deeds of transfer; 2) a guaranty of completion; 3) a guaranty of payment; 4) a letter agreement (the letter agreement); and 5) a license agreement (the license agreement). Id., ¶ 6; Exhibits A, B. On November 9, 2006, El-Ad also executed a guaranty of completion with respect to the transaction (the El-Ad completion guaranty). Id., ¶ 14; Exhibit E. Previously, on November 1, 2006, El-Ad and IBC had also executed a guaranty of payment with respect to the transaction (the El-Ad/IBC payment guaranty). Id., ¶ 16; Exhibit F.

At the time of closing, all work on the project had not yet been completed. Some of the remaining necessary work involved the two subject commercial condominium units. The parties executed the above-referenced documents to ensure that the work would be completed, and the units usable, within a certain time frame. The parties chose to designate the pending work as "the vanilla box work." The relevant portions of the documents provide as follows.

The license agreement states, in pertinent part, that:

6.The [vanilla box work] shall, to the extent that it affects the Commercial Units, be performed in accordance with the following conditions: ...

H.(i)Licensee [i.e., 225 5th ] agrees that it will perform the vanilla box work in a prompt and expeditious manner, but that it will substantially complete all aspects of such work by or before the dates set forth in Exhibit A hereto (each such date being an "Applicable Outside Date"). However, in the event that Licensee fails to substantially complete any aspect of the vanilla box work on or before the Applicable Outside Date, then Licensee shall pay Licensor [i.e., plaintiff] a penalty of $7,000.00 per day for each day after the Applicable Outside Date that Licensor fails to complete such aspect of the vanilla box work. Such penalty shall be payable by Licensee within five (5) days after demand by Licensor. Licensor agrees that, after the substantial completion of the vanilla box work, Licensor shall permit Licensee and its contractors such reasonable access to the Commercial Units as is necessary to complete the so-called "punch list items" and to correct any defects relating to such work. Any such access shall be subject to the provisions of this License and to the provisions of any existing leases covering space in the Commercial Units. ...

(iv)Licensor and Licensee agree that, for purposes of this Agreement, the substantial completion of the [vanilla box work] shall be determined by Gardiner & Theobold, Inc., Architect, and that the fees of such architect shall be shared equally by Licensor and Licensee. Such determination shall be binding upon Licensor and Licensee.

Id.; Exhibit A. One of the items of "vanilla box work" referenced above was described in Exhibit A annexed to the license agreement as follows:

Ventilation - Existing restaurant exhaust flue (including fan in sub-basement) shall be delivered in its current "as is" condition.

Outside Completion Date - September 1, 2006.

3.[225 5th] hereby represents and warrants that the galvanized aluminum kitchen flue existing as of the date hereof has been completed, is in working order, and is code compliant and available to service any restaurant operation in the Commercial Unit known as C2S. However, if such representation and warranty by [225 5th] shall be false in any material respect, then such item of vanilla box work shall be deemed to have not yet been completed as of the closing date under the Purchase Agreement.

Please take further notice that as of the date hereof the following items of vanilla box work have not been completed as required: ... (2) exhaust flue not delivered in its "as is" condition, rather exhaust flue connection in cellar and fan are required to be re-installed and in good working order and portion of flue located on roof that was damaged needs to be repaired and re-installed ... .

With respect to El-Ad, the El-Ad completion guaranty provides, in pertinent part, that:

1.The undersigned [i.e., El-Ad] unconditionally guarantees that:

(a)the Licensee [i.e., 225 5th] shall construct, equip, complete and pay for the post closing work [which includes the vanilla box work] in accordance with the terms of the License; ...

2.The undersigned unconditionally guarantees that if the Licensee does not do the matters specified in clause[] (a) ... of paragraph 1 of this Guaranty on or before the time such matters are to be done by the Licensee the undersigned within ten (10) days from written notice given by the Licensor [i.e., plaintiff] of such failure by Licensee to perform the matters specified in clause[] (a) ... of paragraph 1 shall:

(a)construct, equip, complete and pay for the [vanilla box work] in accordance with the terms of the License, (b) construct and complete alterations, fixtures or any other work to meet the requirements of the [vanilla box work], (c) remove any liens arising from the construction of the [vanilla box work], and (d) pay all costs and expenses incurred in doing the matters specified in clauses (a), (b) and (c) of this paragraph and pay to or reimburse the Licensor for all expenses [*4]incurred by, or other monies due, the Licensor pursuant to the License and, in addition, reimburse the Licensor for any loss, cost or damage incurred or suffered by Licensor as a result of any breach by the undersigned of its obligations under this Guaranty, including, without limitation, by reason of delay in completion of the [vanilla box work].

3.The undersigned agrees that it may be impossible to accurately measure the damages to Licensor resulting from a breach of the undersigned's covenants to duly perform all of Licensee's obligations under the License and to complete or to cause the completion of the [vanilla box work] and that such a breach will cause irreparable injury to Licensor and that Licensor may not have an adequate remedy at law in respect of such breach and, as a consequence, the undersigned agrees that such covenants shall be specifically enforceable against the undersigned and hereby waives and agrees not to assert any defense against an action for specific performance of such covenants. Licensor shall not proceed against Licensee in any contempt proceeding. The preceding sentence shall not prejudice Licensor's rights to assert any and all claims for damages incurred as a result of default of the undersigned hereunder, and the Licensor may be held liable for all losses and damages sustained and expenses incurred by reason of failing of Licensee to perform all of Licensee's obligations under the License.

2.The undersigned [i.e., El-Ad and IBC] agrees that the undersigned shall indemnify and hold [plaintiff] harmless and defend [plaintiff] at the undersigned's sole cost and expense against any loss or liability, cost or expense (including, but not limited to, attorney's fees and disbursements of [plaintiff's] counsel, whether in-house staff, retained firms or otherwise), and all claims, actions, procedures and suits arising out of or in connection with the payment of the Penalty Amounts under the License Agreement and any and all lawful action that may be taken by [plaintiff] in connection with the enforcement of the provisions of this Guaranty or any of the documents executed or delivered in connection therewith (collectively, this Guaranty and the License Agreement and such other documents are the "Penalty Amount Documents"), whether or not suit is filed in connection with same, or in connection with the undersigned, 225 5th or any partner, joint venturer or shareholder becoming a party to a voluntary or involuntary federal or state bankruptcy, insolvency or similar proceeding.

When seeking summary judgment, the moving party bears the burden of proving, by competent, admissible evidence, that no material and triable issues of fact exist. See e.g. Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 (1985); Sokolow, Dunaud, Mercadier & Carreras L.L.P. v Lacher, 299 AD2d 64 (1st Dept 2002). Once this showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action. See e.g. Zuckerman v City of New York, 49 NY2d 557 (1980); Pemberton v New York City Tr. Auth., 304 AD2d 340 (1st Dept 2003). Here, plaintiff's motion is granted in part and denied in part, and defendants' cross motion is denied in full.

Breach of the License Agreement

Plaintiff's first cause of action alleges breach of the license agreement by 225 5th.The proponent of a breach of contract claim must plead the existence and terms of a valid, binding contract, its breach, and resulting damages. See e.g. Gordon v Dino De Laurentiis Corp., 141 AD2d 435 (1st Dept 1988). Here, the complaint specifically refers to: 1) the $7,000.00 per day liquidated damages provision set forth in paragraph 6 H (i) of the license agreement; 2) the portion of the letter agreement that enumerated the kitchen exhaust flue as part of the vanilla box work and required that it be completed by September 1, 2006; 3) the March 13, 2007 demand letter that plaintiff served on 225 5th requiring payment of the above penalty for non-completion of the above work; and 4) states that 225 5th has failed to make payment of same. See Notice of Motion, Exhibit G, ¶¶ 5-20. Plaintiff's motion also includes an affidavit from an architect employed by Gardiner & Theobold, Inc. to support the foregoing claims, as required by paragraph 6 H (v) of the license agreement. Id.; Johnson Affidavit. Plaintiff thus argues that it has proven all of the elements of its breach of contract claim against 225 5th. See Plaintiff's Memorandum of Law, at 4-5. It is evident that plaintiff has made out a prima facie case with respect to its first cause of action. In opposition, 225 5th raises four arguments as to why plaintiff's cause of action should be dismissed.

225 5th first contends that "the letter agreement ... establish[es] that the parties did not intend for liquidated penalties to apply to a breach of [225 5th]'s representations therein." See Defendants' Memorandum of Law in Opposition, at 3. 225 5th bases this argument on the language in paragraph 3 of the letter agreement, which warranted the fitness of the kitchen exhaust flue, that states that:

if such representation and warranty by [225 5th] shall be false in any material respect, then such item of vanilla box work shall be deemed to have not yet been completed as of the closing date under the Purchase Agreement [emphasis added].

It is well settled that " on a motion for summary judgment, the construction of an unambiguous contract is a question of law for the court to pass on, and ... circumstances extrinsic to the agreement or varying interpretations of the contract provisions will not be considered, where ... the intention of the parties can be gathered from the instrument itself'." Maysek & Moran, Inc. v S.G. Warburg & Co., 284 AD2d 203, 204 (1st Dept 2001), quoting Lake Constr. & Dev. Corp. v City of New York, 211 AD2d 514, 515 (1st Dept 1995).

A review of the letter agreement reveals that the parties: 1) agreed that four items of vanilla box work (i.e., natural gas service, heating, air conditioning and entrance door work) had not been completed; 2) agreed that four other items of uncompleted work (i.e., exterior doors, loading dock, pipework/ducting and drain connection/caulking) would be designated as "punch list work," rather than vanilla box work, and that the license agreement's penalty provision would not apply to these items; 3) agreed to accept 225 5th's representations that two other items of vanilla box work (i.e., the kitchen exhaust flue and the windows of the second commercial unit) had been completed, but would deem them incomplete, as of the closing date, in the event that 225 5th's representations proved to be untrue. See Notice of Motion, Exhibit B. With respect to the items of vanilla box work that had not been completed, paragraph 7 of the letter agreement specifically provides that:

Each of the parties hereto expressly reserves their respective rights with respect to any claim ... under the license agreement, relating to any period, including, without limitation, the period prior to the closing under the purchase agreement. Id.

Contrary to 225 5th's contention, paragraph 3 of the letter agreement clearly recites that the work to be performed on the kitchen exhaust flue is vanilla box work. 225 5th's other contention, i.e., that the reference in paragraph 3 to the purchase agreement (which does not contain a penalty provision) signifies that the parties did not intend for the license agreement's penalty provision to apply to the work described therein, is clearly belied by the language of paragraph 7 of the letter agreement that the parties "expressly reserved their rights" to make claims pursuant to the license agreement's penalty provision. Instead, in the three instances in which the purchase agreement is mentioned in the letter agreement, the parties were merely referring to the closing date of the transaction. Therefore, the agreement cannot be read so as to forbid plaintiff from seeking recourse pursuant to the license agreement's penalty provision.

225 5th next argues that "the architect was not the arbiter of [225 5th]'s representation concerning the flue in the letter agreement." See Defendants' Memorandum of Law in Opposition, at 5. 225 5th first contends that its "representation [in the letter agreement] as to the flue relates solely to the purchase agreement - not to the license [agreement]' which empowered architects Gardiner & Theobold, Inc. to verify the completion of vanilla box work. Id., at 5-6. Plaintiff responds that the foregoing argument "makes no sense whatsoever." See Shaw Reply Affirmation, [*7]¶ 24. I agree, since it has already determined that the penalty provision set forth in paragraph 6 (H) (i) of the license agreement applies to the items of vanilla box work specified in the letter agreement. Thus, paragraph 6 (H) (v) of the license agreement imposes a verification requirement as a prerequisite to the assessment of any such penalty.

225 5th nonetheless argues that the affidavit that was submitted by Gardiner & Theobold, Inc.'s architect, Tamela Johnson, raises issues of fact, because the work she describes therein as being necessary to perform on the kitchen exhaust flue actually constitutes "punch list work" rather than "vanilla box work." See Defendants' Memorandum of Law in Opposition, at 6. Plaintiff denies this contention and responds that the work that Ms. Johnson found left undone was vanilla box work. See Shaw Reply Affirmation, ¶ 25. Notably, 225 5th has not presented an affidavit from an architect - much less one employed by Gardiner & Theobold, Inc. - to support its' argument, but relies instead on its attorney's representations. However, the Appellate Division, First Department, has long held that "[a]n attorney's affidavit is of no probative value on a summary judgment motion unless accompanied by documentary evidence which constitutes admissible proof." Adam v Cutner & Rathkopf, 238 AD2d 234, 239 (1st Dept 1997). Here, there is no such proof.

225 5th next argues that the penalty provision set forth in paragraph 6 (H) (i) of the license agreement is unenforceable as a matter of law. See Defendants' Memorandum of Law in Opposition, at 7-15. 225 5th argues that New York's courts will not enforce contractual liquidated damages provisions that impose penalties which are disproportionate to the actual damages suffered, and that plaintiff here has failed to prove that it suffered any damages as a result of the kitchen exhaust flue not being in working order. Id. Plaintiff responds that it need not demonstrate actual damages, that 225 5th bears the burden of proof on this issue, and that liquidated damages provisions are enforced where actual damages were not readily ascertainable at the time of contract. See Shaw Reply Affirmation, ¶¶ 28-45. Plaintiff annexes a letter from 225 5th's former counsel, dated October 16, 2006, to support its contention that the parties had agreed, at the time of closing, that exact calculation of damages for breach would be impossible, and that the best that could be achieved would be the "remediation" of certain classes of potential losses. Id., ¶ 39; Exhibit A. 225 5th responds: 1) that it would be quite possible to calculate plaintiff's damages in terms of lost rental income; 2) that the law does require plaintiff to demonstrate actual damages; and 3) that plaintiff has mischaracterized the statements' of 225 5th's former counsel. See Defendants' Memorandum of Law in Further Support, at 8-12

In Bates Advertising USA, Inc. v 498 Seventh, LLC (7 NY3d 115, 120 [2006]), the Court of Appeals held that:

Whether a contractual provision "represents an enforceable liquidation of damages or an unenforceable penalty is a question of law, giving due consideration to the nature of the contract and the circumstances." The party challenging the liquidated damages ... "must demonstrate either that damages flowing from [the failure to complete on time the items of work called for by the lease] were readily ascertainable at the time [the parties] entered into their [lease], or that [the rent abatement] is conspicuously disproportionate to these foreseeable losses" [internal citations omitted].

Clearly, 225 5th bears the burden of proof. With respect to ascertainability of damages, 225 5th opines that "the New York City real estate market is among the most sophisticated ... in the [*8]world," and that "in the event the flue was not complete and prevented a tenant from taking possession of the commercial units, a multitude of brokers, appraisers and/or other real estate professionals could have determined what similar space was renting for in the surrounding area on a per-square-foot basis and determined a fair market rental ... for any period that any defect in the flue would have prevented a tenant from taking possession." See Defendants' Memorandum of Law in Opposition, at 8. 225 5th does not support this opinion with affidavits from "real estate professionals" or any other documentary evidence. Instead, 225 5th relies solely on its attorney's affirmation which, as previously noted, "is of no probative value on a summary judgment motion unless accompanied by documentary evidence." Adam v Cutner & Rathkopf, 238 AD2d at 239. For its part, plaintiff argues that the $7000.00 per day liquidated damages figure was intended to remediate a number of items, including "per diem losses related to the acquisition [of], operations [of], maintenance [of], real estate taxes [on] and potential losses of rental income [from]" the subject commercial units. See Shaw Reply Affirmation, ¶ 32. The letter from 225 5th's former counsel confirms that the parties considered a number of factors when deciding how to calculate potential liquidated damages. Id.; Exhibit A. By contrast, 225 5th's ascertainability argument does not address any factors other than loss of potential rental income. Thus, 225 5th has not presented sufficient proof that plaintiff's prospective losses flowing from 225 5th's failure to timely complete all vanilla box work were readily ascertainable at the time of contracting.

In its reply papers, 225 5th further argues that circumstances had changed drastically between December 9, 2005, when the parties entered into the purchase agreement, and November 9, 2006, when the parties closed the transaction and executed the license and letter agreements. See Defendants' Memorandum of Law in Further Support, at 3-5. 225 5th contends that, even if damages would have been difficult to ascertain as of the first date (when a quantity of vanilla box work remained to be done), that scenario had changed by the second date (when only a few items of vanilla box work remained undone). Id. 225 5th thus concludes that plaintiff's damages as of the second date should be calculated as zero because the undone work on the kitchen exhaust flue was not "material," in that it was so insignificant that it did not affect plaintiff's ability to rent out the commercial units. Id., at 6-7. Here, 225 5th is taking a contractual term out of context. Paragraph 3 of the letter agreement provides that:

[i]f such representation and warranty [i.e., regarding the fitness of the kitchen exhaust flue] by [225 5th] shall be false in any material respect, then such item of vanilla box work shall be deemed to have not yet been completed as of the closing date under the Purchase Agreement [emphasis added].

With respect to disproportionality of damages, 225 5th cites to cases to support its claim that the mere fact that the penalty provision in paragraph 6 (H) (i) of the license agreement utilizes a $7,000.00 a day calculation makes it per se disproportionate. See Defendants' Memorandum of Law in Opposition, at 11-15. However, since Bates Advertising USA, Inc. v 498 Seventh, LLC (7 NY3d 115, supra), upheld a similar per diem calculation, this argument is rejected.

225 5th also argues, without explaining its rationale, that paragraph 6 (H) (i) should be deemed to be an unenforceable penalty because its very terms impose a disproportionate amount of liquidated damages and then refers to facts to support this contention. See Defendants' Memorandum of Law in Opposition, at 10-11. However, while of course the factual record must be examined, on these partial summary judgment motions, summary judgment cannot be defeated merely by claiming that there is an issue of fact with respect to disproportionality.

Earlier, in Truck Rent-A-Center v Puritan Farms 2nd (41 NY2d 420, 425 [1977]), the Court of Appeals also noted that, in order to determine whether a liquidated damages provision imposes a disproportionate penalty, "the agreement should be interpreted as of the date of its making and not as of the date of its breach." The First Department, recently applied this principle in Addressing Systems and Products, Inc. v Friedman (59 AD3d 359, 359 [1st Dept 2009])(, "[p]laintiffs' contention - that the liquidated damages were grossly misvalued - [was] predicated solely on the contrast between defendants' post-breach calculation of damages in this particular instance ... and the ... [stated] liquidated damages figure, a standard which is without basis in the law.") Here, 225 5th is making the same argument; i.e., that the amount of liquidated damages that it will be forced to pay today is excessive. However, that that figure would have been significantly lower if 225 5th had completed the outstanding vanilla box work in a timely fashion or, better yet, if 225 5th's warranties that that work was in fact completed before closing had been accurate.Addressing Systems and Products, disposes of this argument, "[t]he fact that a liquidated damages clause was designed to provide an incentive not to breach does not transform such provision into a penalty merely because they operate in this way as well, so long as they are not grossly out of scale with foreseeable losses'." 59 AD3d at 359.

As previously discussed, the parties had executed a liquidated damages provision that sought to remediate a number of potential loss factors. Thus, agreed upon figure of $7000.00 per day, represented a not unreasonable attempt - at the time of contracting - by two sophisticated business entities engaged in the sale and purchase of commercial real estate to place a dollar figure upon those factors, and to provide the seller (i.e., 225 5th) with an incentive not to breach the agreement. 225 5th has not borne its burden of proving that paragraph 6 (H) (i) imposes liquidated damages that are grossly disproportionate to the harm that plaintiff would suffer in the event of a breach. Thus, I conclude paragraph 6 (H) (i) of the license agreement is not unenforceable, as a matter of law, as [*10]a prohibited penalty.

Finally, 225 5th argues that plaintiff is barred from seeking liquidated damages by the doctrines of waiver and/or equitable estoppel. See Defendants' Memorandum of Law in Opposition, at 15-18. With respect to the former, the argument is that plaintiff's four-month delay between Johnson's inspection of November 9, 2006 and plaintiff's service of the demand letter on March 13, 2007 constituted a waiver of the right to seek liquidated damages pursuant to the license agreement. Id. at 15-17. Plaintiff responds that its correspondence with 225 5th and the text of both the license and letter agreements all show its ongoing intent to seek liquidated damages in the event that 225 5th did not timely complete all of the vanilla box work. See Shaw Reply Affirmation, ¶¶ 47-50. 225 5th replies that none of that correspondence took place during the four-month period between November 9, 2006 and March 13, 2007. See Defendants' Memorandum of Law in Further Support, at 14-15.In Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Management, L.P. (7 NY3d 96, 104 [2006]), the Court of Appeals observed that:

Contractual rights may be waived if they are knowingly, voluntarily and intentionally abandoned. Such abandonment "may be established by affirmative conduct or by failure to act so as to evince an intent not to claim a purported advantage." However, waiver "should not be lightly presumed" and must be based on "a clear manifestation of intent" to relinquish a contractual protection. Generally, the existence of an intent to forgo such a right is a question of fact [internal citations omitted, emphasis added].

Each of the parties hereto expressly reserves their respective rights with respect to any claim ... under the license agreement, relating to any period, including, without limitation, the period prior to the closing under the purchase agreement [emphasis added].

With respect to the doctrine of equitable estoppel, "the party seeking estoppel must demonstrate a lack of knowledge of the true facts; reliance upon the conduct of the party estopped; and a prejudicial change in position." River Seafoods, Inc. v JPMorgan Chase Bank, 19 AD3d 120, 122 (1st Dept 2005), citing BWA Corp. v Alltrans Express U.S.A. Inc., 112 AD2d 850, 853 (1st Dept 1985); Airco Alloys Div. v Niagara Mohawk Power Corp., 76 AD2d 68, 81-82 (4th Dept 1980). 225 5th argues that it "lacked true knowledge of the facts because [it] did not know that plaintiff intended to rely on the [liquidated damages] provision in the license agreement," and that it "detrimentally relied on plaintiff's failure to seek damages." See Defendants' Memorandum of Law in Opposition, at 17-18. Plaintiff responds that "defendants' claims that they did not know that plaintiff intended to rely on the [liquidated damages provision] are contradicted by the correspondence of defendants' [former] counsel ..., the execution of the License agreement and the letter agreement ..., the inspections of the units and the building by Gardiner & Theobold ... which prompted the March 13, [*11]2007 notice, as well as the commencement of this litigation." See Shaw Reply Affirmation, ¶ 54. 225 5th's reply papers restate their original argument. See Defendants' Memorandum of Law in Further Support, at 14-15.

225 5th's alleged reliance on plaintiff's "failure to seek damages" was not justifiable. (See In Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Management, L.P. [(7 NY3d supra at 106-107)]. 225 5th has unilaterally chosen to characterize the four-month lag between November 9, 2006 (when Johnson inspected the kitchen exhaust flue and found it inoperative), and March 13, 2007 (after Johnson had re-inspected the flue and plaintiff had mailed its demand letter) as an intentional "failure to seek damages." However, 225 5th presented no evidence to support this characterization. Indeed each successive contract between the parties provided for plaintiff to seek liquidated damages in the event of defendants' breach. Also, during the time frame in question, Johnson made repeated inspections of the flue (and the building) to determine whether 225 5th was in breach, or whether it was discharging its construction/renovation obligations in good faith. Further, both parties to the transaction were sophisticated real estate entities who are deemed to be aware of the consequences of their actions. In light of the foregoing, it strains credulity that 225 5th could believe that plaintiff had chosen to permanently forego its claims for liquidated damages. See e.g. Bank of NY v Murphy, 230 AD2d 607 (1st Dept 1996); Citibank, N.A. v. Smith, 245 AD2d 148 (1st Dept 1997). Finally, neither of the affidavits of merits that 225 5th submitted from its principals in support of its cross motion makes any representations regarding 225 5th's purported reliance on the four-month delay. See Notice of Cross Motion, Sigoura Affidavit; Shargian Affidavit. Rather, all of 225 5th's representations concerning this issue come from its attorney. Id.; Lycoyannis Affirmation. As was previously observed, "an attorney's affirmation is of no probative value on a summary judgment motion unless accompanied by documentary evidence." Adam v Cutner & Rathkopf, 238 AD2d at 239. Here, the only available documentary evidence shows that plaintiff had reserved its right to seek liquidated damages.

Therefore, the plaintiff's motion is granted, and 225 5th's cross motion is denied, with respect to plaintiff's first cause of action for breach of the license agreement.

Breach of the El-Ad Completion Guaranty

Plaintiff's third cause of action alleges that El-Ad breached paragraph 3 of the El-Ad completion guaranty by failing to: (i) complete and pay for the post-closing work (including the vanilla box work); (ii) pay plaintiff all monies due under the license agreement; and (iii) reimburse plaintiff for any loss caused by El-Ad's breach of the El-Ad completion guaranty. See Notice of Motion, Exhibit G, ¶ 28; Exhibit E. Here, El-Ad argues that plaintiff has failed to establish its prima facie case because paragraph 2 of the El-Ad completion guaranty sets forth the requirement that plaintiff serve ten (10) days written notice as a prerequisite to seeking recourse thereunder. See Defendants' Memorandum of Law in Opposition, at 18. Plaintiff does not answer this claim in its reply papers. Further, upon reviewing all of plaintiff's submissions, El-Ad is correct that plaintiff has failed to annex said ten days notice to its moving papers. Thus, plaintiff has failed to establish a prima facie case against El-Ad for breach of the El-Ad completion guaranty at this juncture, and, the motion for summary judgment on the third cause of action is denied. Because plaintiff will have the opportunity to present its missing evidence at trial, however, the defendants' cross motion for summary judgment to dismiss the third cause of action is also denied.

[*12]Breach of the El-Ad/IBC Payment Guaranty

Plaintiff's fourth cause of action alleges that El-Ad and IBC breached paragraph 2 of the El-Ad/IBC payment guaranty by failing to reimburse plaintiff for the "penalty amounts" due pursuant to the lease agreement. See Notice of Motion, Exhibit G, ¶ 34; Exhibit F. Defendants do not dispute that plaintiff has established a prima facie case of breach of the El-Ad/IBC payment guaranty, but only argue that they cannot be held liable because the "penalty amounts" referred to in the El-Ad/IBC payment guaranty stem from the liquidated damages provision of the license agreement which, they assert, is unenforceable. See Defendants' Memorandum of Law in Opposition, at 18. However, as discussed above, I have concluded that the liquidated damages provision is enforceable. Therefore, since plaintiff has established a prima facie claim that that El-Ad and IBC breached paragraph 2 of the El-Ad/IBC payment guaranty, the portion of plaintiff's motion that seeks summary judgment on its fourth cause of action is granted, and that the corresponding portion of defendants' cross motion that seeks summary judgment dismissing that cause of action is denied.

Plaintiff's fifth cause of action seeks an award of attorney's fees against El-Ad and IBC, pursuant to paragraph 2 of the El-Ad/IBC payment guaranty. See Notice of Motion, Exhibit G, ¶ 37; Exhibit F.The contract specifically lists attorney's fees and costs among the items that defendants agreed to guaranty. Id. Thus, there is a prima facie case with respect to this claim. Defendants, nonetheless, raise the same unenforceability argument against this cause of action that they did against the fourth cause of action. See Defendants' Memorandum of Law in Opposition, at 18. However, for the reasons already discussed, the argument has been rejected, and summary judgment on the fifth cause of action is granted. The corresponding portion of defendants' cross motion that seeks summary judgment dismissing that cause of action is denied.

ACCORDINGLY, for the foregoing reasons, it is hereby

ORDERED that the motion, pursuant to CPLR 3212, of plaintiff 225 Fifth Avenue Retail, L.L.C. is granted solely to the extent of granting partial summary judgment in favor of plaintiff and against defendants 225 5th LLC, the El-Ad Group, Ltd. and Industrial Buildings Corporation, Ltd. finding defendants liable to plaintiff on the first, fourth and fifth causes of action in the complaint, and the issue of the amount of a judgment to be entered thereon shall be determined at the trial herein, but the motion is otherwise denied; and it is further

ORDERED that the cross motion, pursuant to CPLR 3212, of defendants 225 5th LLC, the El-Ad Group, Ltd. and Industrial Buildings Corporation, Ltd. is in all respects denied; and it is further

ORDERED that the balance of this action shall continue.

Dated: New York, New York

July, 2009

ENTER: [*13]

_____________________

J.S.C.