The following e-filed documents, listed by NYSCEF document number (Motion 001) 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29 were read on this motion for DISMISSAL.

Upon the foregoing documents, it is ordered that this motion is granted.

Defendant SRI Eleven 1407 Broadway Operator, LLC (SRI), moves, pursuant to CPLR 3211 (a)(1) and (7), to dismiss the first and second causes of action.

Plaintiff, a commercial tenant, commenced this action against SRI, its landlord, for, inter alia, damages allegedly caused by SRI's renovation and remodeling of the subject building.

To succeed on a CPLR 3211 (a) (1) motion to dismiss, a defendant has the "burden of showing that the relied-upon documentary evidence 'resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim'" (Fortis Fin. Servs. v Fimat Futures USA, Inc., 290 AD2d 383, 383 [1st Dept 2002], quoting Scadura v Robillard, 256 AD2d 567, 567 [2d Dept 1998]). To be considered "documentary," the evidence must be unambiguous and of undisputed authenticity (Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc, Inc., 120 AD3d 431, 432 [1st Dept 2014]). Affidavits and summary notes do not constitute documentary evidence; they raise issues of credibility for a jury to decide (Art & Fashion Group Corp. v Cyclops Prod., Inc., 120 AD3d 436, 438 [1st Dept 2014]).

In support of its CPLR 3211 (a) (1) motion, defendant SRI submits the lease. Pursuant to paragraph 19 of the lease, SRI may, in its sole discretion, make repairs, improvements, and alterations to the building and premises without liability to tenant. Specifically, paragraph 19 of the lease provides, in relevant part:

Tenant shall permit Landlord to erect, use and maintain pipes and conduits in and [*2]through the demised premises. Landlord's agents shall have the right to enter the demised premises at all times to examine same, to show them to prospective purchasers or lessees of the building, and to make such repairs, alterations, improvements or additions as Landlord may deem necessary or desirable to the building or to the demised premises and Landlord shall be allowed to take all material into and upon said premises that may be required therefor without the same constituting an eviction of Tenant in whole or in part and the rent reserved shall in no wise abate while said decorations, repairs, alterations, improvements or additions are being made, by reason of loss or interruption of the business of Tenant, because of the prosecution of any such work or otherwise.

Moreover, pursuant to paragraph 7 of the lease, defendant SRI is not liable to plaintiff for any lost business profits by reason of defendant's making of any repairs, improvements, and/or alterations to the premises and/or the building. Paragraph 7 of the lease provides, in relevant part:

Except as provided in paragraph 13 hereof, there shall be no allowance to Tenant for a diminution in rental value, and no liability on part of Landlord by reason of inconvenience, annoyance or injury to person(s), property or business arising from the making of any repairs, alterations, additions or improvements in or to any portion of the building or the premises or in or to the fixtures, appurtenances or equipment, nor shall there by any liability upon the Landlord for failure to make any repairs, alterations, additions or improvements in or to any portion of the building or the demised premises or in or to the fixtures, appurtenances or equipment. The Tenant shall and does hereby indemnify and hold the Landlord harmless and free from all liability for all injuries suffered by any person(s), and for damages sustained to property, and for any monies paid out by Landlord in settlement of any claims or judgments resulting from such damages or injuries, as well as for all expenses and attorney's fees incurred by Landlord in connection therewith. Notwithstanding anything to the contrary contained herein, Landlord shall give reasonable advance notice to Tenant that it intends to make the repairs provided for herein.

Rider to the end of ¶ 7 hereof Landlord represents that any work performed by Landlord, as may be provided herein, shall be done in a reasonable and expeditious manner and that such work, including the storage of any material, shall not interfere with the day-to-day operation of Tenant's business, nor obstruct any entry nor permanently take away any more than a minimal and necessary party of Tenant's space in the demised premises. Landlord further represents that any such work shall be reasonably consistent with the appearance of Tenant's premises.

Defendant argues that paragraphs 7 and 19 of the lease preclude plaintiff from bringing the first and second causes of action (see After Midnight Co. LLC v MIP 145 E. 57th St., LLC, 146 AD3d 446, 447 [1st Dept 2017]). Plaintiff argues that the rider to paragraph 7 of the lease contemplates lost profits as a result of construction during the plaintiff's business hours.

Plaintiff's first and second causes of action, that seeks the recovery of lost profits for damages allegedly caused by SRI's renovation and remodeling of the subject building, must be dismissed. The first and second causes of action are expressly barred by paragraphs 7 and 19 of the lease. In this court's reading, the language of paragraph 7 is unambiguous: "there shall be no liability on part of Landlord by reason of injury to business arising from the making of any repairs, [*3]alterations, additions or improvements in or to any portion of the building or the demised premises" (emphasis added). The rider to paragraph 7 does not contradict the paragraph's essential point.

Accordingly, it is hereby

ORDERED that the motion of defendant SRI Eleven 1407 Broadway Operator, LLC to dismiss the first and second causes of action is granted and the first and second causes of action are dismissed; and it is further

ORDERED that defendant shall serve an answer within 20 days of entry of this order to the balance of the allegations of the complaint; and it is further

ORDERED that counsel are directed to appear for a preliminary conference in Part 43, Room 412, 60 Centre Street, New York, New York, on September 26, 2019, at 9:30 a.m.