Recitation, as required by CPLR 2219 (a), of the papers considered on this motion:

PAPERS              NYSCEF Doc Nos

Upon the foregoing papers, petitioner moves to dismiss respondent's affirmative defenses and counterclaims; and for summary judgment on the petition granting a judgment of possession and warrant of eviction and a money judgment for outstanding rent arrears through date of judgment. Respondent cross moves for summary judgment on its defenses and counterclaims to dismiss the petition.

Petitioner and respondent entered into a lease on October 1, 2017 for the demised premises that include the first floor and basement in the building located at 246 Eighth Avenue in Manhattan for a ten-year term (NYSCEF Doc No 10 [lease]). The lease required respondent to pay real estate taxes and rent in accordance with the rent schedule, which provided that the initial monthly rent was $46,000.00 for the first year and increased annually thereafter through 2027.

Petitioner commenced the instant commercial nonpayment proceeding on March 4, 2022 seeking possession of the premises and a money judgment in the amount of $1,036,203.08, alleging respondent defaulted in the payment of real estate taxes and rent since July of 2019 (NYSCEF Doc No 1).^[FN3]

Respondent moved, pre-answer, to dismiss the petition pursuant to, inter alia, CPLR 3211 (a) (7) on the grounds that petitioner failed to state a cause of action, petitioner did not have standing to bring this proceeding, and the equitable doctrine of laches bars the proceeding. By decision and order dated July 11, 2022, the Court (Padilla, J.) denied respondent's motion, finding, inter alia, that petitioner was the proper party to commence the proceeding as either landlord or lessor under RPAPL 721 and respondent's laches defense fails "without any showing of prejudice or adverse detrimental reliance on petitioner's position" (NYSCEF Doc No 18).

Respondent then filed and served an unverified answer asserting eleven affirmative [*3]defenses and two counterclaims for breach of contract and unjust enrichment, which allege that respondent paid more than its share of real estate taxes due under the lease (NYSCEF Doc No 21).

In support of its motion, petitioner argues that the affirmative defenses were previously rejected by the Court in its prior decision on respondent's motion to dismiss, which should be considered as law of the case and are otherwise without merit. Petitioner also claims the counterclaims should be dismissed as barred by the lease and otherwise without merit, as demonstrated by petitioner's affidavit in support introducing the rent ledger and accounting of taxes.

Initially, the Court finds that the branches seeking dismissal of the first through eighth and eleventh affirmative defenses, as well as the counterclaims, should be granted as unopposed. Accordingly, affirmative defenses first through eighth and eleventh are dismissed.

Respondent's ninth and tenth affirmative defenses remain at issue, which are as follows:

17. Petitioner's claims are barred, either in whole or in part by the equitable doctrine of laches, because upon information and belief during the Covid-19 Pandemic, Petitiomer did not assert its rights as herein alleged, namely, that:

(a) it did not commence a nonpayment proceeding upon any alleged breach by Respondent of its covenant to pay rent, notwithstanding the fact that courts were not hearing cases due to the Covid-19 Pandemic, though it is undisputed that Petitioner could have filed its petition;

(b) an appropriately filed petition would have put Respondent on notice of Petitioner's claims against it for money damages, giving Respondent sufficient opportunity to properly allocate its available funds and expend same toward rent and arrears;

(c) it waited approximately two years to bring a proceeding;

(d) it made no rent demands to Respondent; and

(e) it affirmatively communicated to Respondent that it would accept a reduced rental rate in full satisfaction of the monthly rent, in light of the hardships which ensued as a result of the Covid-19 Pandemic, an assertion of which Respondent reasonably relied;

18. Respondent detrimentally relied on Petitioner's inaction to assert its rights by properly deploying its available funds to cover other allowable and proper business expenses, including but not limited to, utilities, inventory, and payroll.

19. Respondent detrimentally relied on Petitioner's delay to assert its rights by reasonably relying on Petitioner's assertions that it would accept a reduced rental rate as well as Petitoner's acceptance of the reduced payment, which total approximately one (1) million dollars toward rent during the Covid period.

20. By reason of the foregoing, Petitioner's claims are barred by the equitable doctrine of laches. As the adage goes, ëquity aids the vigilant, not the negligent"thereby relieving Respondent of the obligations now alleged to be due.

21. Petitioner's claims are barred, in whole or in part, under the doctrine of waiver, estoppel, ratifications, acquiescence, or unclean hands.

"On a motion to dismiss affirmative defenses pursuant to CPLR 3211 (b), the [petitioner] bears the burden of demonstrating that the defenses are without merit as a matter of law" (534 E. 11th St. Hous. Dev. Fund Corp. v Hendrick, 90 AD3d 541, 541 [1st Dept 2011]). "In deciding a motion to dismiss a defense, the [respondent] is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed" (id. at 542).

Regarding the ninth affirmative defense of laches, petitioner contends that the Court's prior decision is law of the case, precluding the defense. However, "a court's prior denial of a motion to dismiss does not constitute law of the case when there is a difference in 'procedural posture'" (Courtney v McDonald, 2021 NY Slip Op 30177[U], *2-6 [Sup Ct, New York County 2021], quoting Bodtman v Living Manor Love, Inc., 105 AD3d 434, 434 [1st Dept 2013]).

As to the tenth defense, petitioner alleges that the putative defenses, without more, are insufficiently plead pursuant to CPLR 3013. The portions of the defense asserting "acquiescence" and "unclean hands" are dismissed as unopposed. The remaining defenses alleging "waiver" and, to the extent raised in the motion papers, "estoppel [and] ratification," are all addressed on the merits within respondent's cross-motion.

Pursuant to CPLR 409 (b) in a summary proceeding the court "shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised" (see Matter of Gonzalez v City of New York, 127 AD3d 632, 633 [1st Dept 2015]). "The standards governing motions for summary judgment are applicable to special proceedings generally, of which the summary proceeding to recover possession of real property is a species" (Brusco v Braun, 199 AD2d 27, 31-32 [1st Dept 1993] [internal citations omitted], affd 84 NY2d 674 [1994]). It is, therefore, "the court's duty to search the record and make summary determinations where appropriate" (McKay v Farquharson, 75 Misc 3d 1223[A], 2022 NY Slip Op 50646[U], *3 [Civ Ct, Queens County 2022]; see New 110 Cipriani Units, LLC v Bd. of Mgrs. of 110 E 42nd St. Condominium, 166 AD3d 550, 551 [1st Dept 2018] ["The court had the power to dismiss the complaint upon a search of the record, as on a motion for summary judgment"]; see also Fourth Hous. Co., Inc. v Bowers, 53 Misc 3d 43, 44-45 [App Term, 2d, 11th & 13th Jud Dists 2016]).

"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The "evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must be resolved in favor of the nonmoving party" (Valentin v Parisio, 119 AD3d 854, 855 [2d Dept 2014]). "In considering a motion for summary judgment, the function of the court is not to determine issues of fact or credibility, but merely to determine whether such issues exist" (Rivers v Birnbaum, 102 AD3d 26, 42 [2d Dept 2012]; see Ferrante v American Lung Assn., 90 NY2d 623, 631 [1997]).

Respondent moves to dismiss the petition based on (1) its ninth affirmative defense [*4]asserting that the doctrine of laches bars petitioner from seeking the arrears; (2) its "third counterclaim" asserting that the parties modified the rent amount under the lease; and (3) its "fourth counterclaim" and tenth affirmative defense that petitioner waived its right to the arrears and the rent amount for the balance of the lease term (see NYSCEF Doc No 41).

Initially, it is facially obvious that respondent's answer only contains two counterclaims. The third and fourth counterclaims upon which respondent moves do not exist. Respondent's request and asserted grounds for leave to amend the answer upon either subdivisions (b) or (c) of CPLR 3025 are improperly asserted for the first time in its reply papers on the cross motion (see Dannasch v Bifulco, 184 AD2d 415, 417 [1st Dept 1992] ["The function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds for the motion"]).

Even if the Court were to entertain such a request, "leave to amend should be denied" "if the proposed amendments are totally devoid of merit and legally insufficient" (Mosaic Caribe, Ltd. v AllSettled Group, Inc., 117 AD3d 421, 421—22 [1st Dept 2014]; see Ancrum v St. Barnabas Hosp., 301 AD2d 474, 475 [1st Dept 2003] ["We have consistently held, however, that in an effort to conserve judicial resources, an examination of the proposed amendment is warranted, and leave to amend will be denied when the proposed pleading is palpably insufficient as a matter of law"] [internal citation omitted]). The Court knows of no cognizable claim for "waiver" or "modification." To the extent respondent seeks specific performance on a modified contract, this Court is without jurisdiction to grant such relief (see Lehmann v Lehmann, 182 Misc 2d 22, 27 [Civ Ct, Kings County 1999]). In any event, the Court will consider laches, waiver, and modification ^[FN5] as respondent's affirmative defenses, as set forth below.

In support of its motion, respondent submits, inter alia, the affidavits of its president, Abby Mouzakitis-Fazio and finance manager, JoAnn Aronoff, and copies of its rent checks (NYSCEF Doc Nos 35 [Fazio aff], 36, and 39, respectively).

Aronoff states that "at the start of the Covid-19 pandemic, [petitioner's] executive assistant Zoe Tzikas ("Tzikas") represented to [her] that Petitioner agreed to accept a reduced monthly rent moving forward in the amount of $21,424.50 (the "Modified Rent"), approximately half the rent set forth in the Lease" (Aronoff aff at ¶ 6).

Fazio also alleged she "communicated with several members" of petitioner's executive committee and board of directors, including its vice president, president, general secretary, and assistant general secretary "regarding the Modified Rent at some time in the beginning of the pandemic" (Fazio aff at ¶ 22). "During these conversations, Petitioner, represented to [Fazio] that it agreed to the Modified Rent" (id. at ¶ 23).

Aronoff further states:

11. Pursuant to and consistent with the Modified Rent modification agreed to by Petitioner, each month, Tzikas telephoned me to ask the following two (2) questions: (i) when the rent for that month would be mailed out, and (ii) when the following month's [*5]rent was expected to be sent.

12. Pursuant to and consistent with the Modified Rent modification, when Tzikas telephoned to inquire about the date rent checks would be sent out, Tzikas never asked for the other half of rent.

13. Petitioner acknowledged, by way of this ceremonial telephone call, the Modified Rent, and accepted the rent by depositing each check every month, without any indication that the amount was insufficient.

Based on Fazio's alleged conversations with petitioner's members and petitioner's acceptance of the Modified Rent payments "without issue," Fazio was "led" "to believe that the Modified Rent [respondent paid] was in full satisfaction of the rent" (Fazio aff at ¶ 24).

Additionally, Fazio states that respondent received Paycheck Protection Program (PPP) funds "to help curb the negative impact of the pandemic" in May of 2020 (id. at ¶ 33). According to Fazio, the PPP terms required that at least sixty percent (60 %) of the funds be directed to toward payroll expenses, and the remaining forty percent (40 %) could have been applied to payroll, or rent, or utilities (id. at ¶ 41). Of the $291,990.00 PPP funds that respondent received, approximately eighty percent (80 %) (i.e., $233,592.00) was directed towards payroll expenses.

Fazio states that "[h]ad Petitioner voiced an objection to the Modified Rent, Respondent would have allocated more of the PPP monies to cover the difference in rent or shut down" (Fazio aff at ¶ 39; see also id. at ¶ 19 ["Had respondent known that Petitioner would demand the difference Respondent would have considered shutting down instead of accruing this alleged balance"]).

In opposition to the cross-motion petitioner submits an affidavit from Zoe Tzikas and certain correspondence between the parties.

Tzikas, the executive assistant for petitioner's board up to March 3, 2023, states:

I never stated nor represented nor even suggested to Aronoff, nor anyone else, that the Petitioner agreed to accept a reduced monthly rent of one half (½) the rent for the duration of the Lease, as Aronoff claims. In fact, I could not make that representation since (i) I was not an Executive Board Member nor a member of the Board of Directors and therefore, had no authority to modify any the Lease and (ii) the only agreements Petitioner made with Respondent were in writing, which Respondent conveniently omits from its cross motion.

As Executive Assistant, one of my duties was to inquire about when rent payments would be expected. Sometimes I would call Aronoff to find out when we could expect payment, as Petitioner had obligations it had to meet and it was necessary to know what the cash flow situation would be for Petitioner. At no time did I state or imply that the Petitioner agreed to or was satisfied with the partial payments Respondent was making. To the contrary, I often reminded Aronoff how far in arrears their account was.

Tzikas averred that the only modification of the rent due under the lease occurred the year before, pre-pandemic (Tzikas aff at ¶¶ 8-9). More specifically, petitioner submitted a letter dated March 26, 2019, whereby petitioner agreed to reduce respondent's rent by ten percent (10 [*6]%) to $42,849.00 for one year, from March 1, 2019 through February 28, 2020 (id., citing NYSCEF Doc No 57).

Petitioner also submitted a letter dated April 21, 2020 from petitioner's attorneys to Fazio, acknowledging the onset of the Covid-19 pandemic and its impact on respondent's operations as a pharmacy. The attorney's letter stated:

We understand that there were several discussions between you [Fazio] and the Landlord's Board of Directors to address the rent and additional rent arrears predating the Covid-19 outbreak.

The Landlord acknowledges the financial struggles we are all facing and is willing to work with you towards an amicable solution to the difficulties you may be experiencing. We would like to schedule a conference call as soon as possible to begin formulating a plan towards addressing the arrears and maintaining our respective obligations under the lease agreements.

After the letter was sent, Tzikas states that "[n]o formal agreement was ever reached, but in the spirit expressed in the April letter, the Petitioner continued to bill Respondent the reduced rent of $42,849.00 for a brief period. Instead of paying the reduced rent of $42,849.00, in the summer of 2020 Respondent arbitrarily began paying half the rent . . ." (Tzikas aff at ¶ 11).

Petitioner also submits e-mail correspondence from petitioner's counsel to respondent's counsel dated June 28, 2021. Petitioner's counsel attached two statements detailing the arrears for respondent and the second-floor tenant (see supra n 3), requesting respondent to "review the statements for accuracy and advise as to their proposal to resolve the arrears" (NYSCEF Doc No 59 at 1). The e-mail also states that "it would be most appreciated if tenant can return to paying the full rent amounts as well as the outstanding real estate tax escalations as a substantial first step in stopping the arrears from continuing to grow" (id.).

The invoice attached to the letter shows that petitioner was charging the reduced rent of $42,849.00 for the first six months of 2021 and that respondent had been paying $21,424.50 for those months, and that those payments were applied to rent arrears, specifically for August and September of 2020 (NYSCEF Doc No 59 at 2). Respondent's total arrears as of the date of the e-mail was $570,171.27 (id. at 3).

Laches is defined as "an equitable bar, based on a lengthy neglect or omission to assert a right and the resulting prejudice to an adverse party" (Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 816 [2003]; see Karagiannis v Nasar/Hyer, 35 Misc 3d 37, 38-41 [App Term, 2d, 11th & 13th Jud Dists 2012] ["For the doctrine to apply, there must be a showing of unexplained delay and prejudice"]; see also 101 Cooper St. LLC v Beckwith, 37 Misc 3d 1231[A], 2012 NY Slip Op 52255[U], *2-3 [Civ Ct, NY County 2012]).

Respondent argues that petitioner "waited 24 months ^[FN6] to bring the proceeding and no [*7]impediment existed to filing an earlier petition" (NYSCEF Doc No 41 at 11). Respondent also contends that petitioner never indicated to respondent that the rent it was paying was insufficient, nor did petitioner ever make a demand for rent. Respondent claims petitioner "assert[ed] that Modified Rent would be accepted in full satisfaction of the rent as set forth in the Lease" (id.).

Whether it has been two years before petitioner commenced this proceeding, or three months, is not determinative (see generally 101 Cooper St. LLC, 2012 NY Slip Op 52255[U] at *3). Additionally, the Court notes that there was a moratorium prohibiting commencement of this proceeding until after August 31, 2021.

In any event, the evidence presented refutes respondent's claims that petitioner's delay was inexcusable and/or that petitioner failed to assert its rights to collect rent throughout the time at issue. While respondent claims that it heard nothing about arrears for two years, petitioner's communications in April of 2020 and June 2021 (which were not denied by respondent) objectively refute such allegations as a matter of law as petitioner affirmatively stated that it wanted to work with respondent on addressing the arrears and maintain compliance with lease obligations (see NYSCEF Doc Nos 58, 59).

As for the prejudice, respondent argues that, if respondent knew petitioner sought to assert its rights to the rent arrears, it would have "considered shutting down, rather than continue to operate, or devoted some of the PPP funds to the difference in rent" (NYSCEF Doc No 41 at 11-12).

Laches does not involve a mere matter of time, but principally involves a question of the inequity of permitting a claim to be enforced, this inequity being founded on some change in the position or relationship of the parties. This is the case where a party knowing his rights, takes no steps to enforce them until the position of the other has, in good faith, become so changed that he cannot be restored to his former state, delay becomes inequitable and operates as an estoppel against the assertion of the right.

In addition to finding that there was no lengthy or prolonged delay, the Court also finds that the respondent failed to meet its burden as to prejudice. Specifically, respondent failed to show that it would not be able to operate its business if petitioner sought full rent as originally set forth in the lease, rather than the Modified Rent amounts. "Considering" to shut down, as opposed to submitting proof by way of financial records, or other concrete evidence, does not support the prejudice needed to show the requisite change in position and demonstratable loss to support application of the doctrine (see Saratoga County Chamber of Commerce, 100 NY2d at 817 [noting there was no "any indication that the delay in bringing this action has caused the slightest harm to the Tribe" and its operation of a casino; "Without knowing how much, if anything, the casino stands to lose—and having no basis to conclude that it has not profited—we cannot dismiss a suit on laches grounds for economic prejudice"]; Bank of Am. N.A. v Lam, 124 AD3d 430, 431 [1st Dept 2015] ["respondent has failed to make any actual and nonspeculative showing of prejudice"] [emphasis added]).

Respondent also claims prejudice in that, had it known that petitioner would have sought the full rent instead of the Modified Rent, it would have also reallocated its PPP funds to cover the rent or arrears. The extra twenty percent (20 %) that respondent could have allocated toward rent amounts to $58,398.00. Assuming, arguendo, that this could constitute prejudice, or the [*8]requisite "injury [or] change in position" (see generally Matter of Linker, 23 AD3d 186, 189-90 [1st Dept 2005], quoting Skrodelis v Norbergs, 272 AD2d 316, 317 [2d Dept 2000]), then it would only apply to three months of Modified Rent and just over one-months' worth of pre-pandemic reduced rent. In which case, even if the defense applied,^[FN7] the proceeding would still not be dismissed. "[A] possessory judgment may be entered with respect to the portion of the arrears to which the defense does not apply and a nonpossessory judgment may be entered as to the remainder of the arrears" (Karagiannis, 35 Misc 3d at 40).

Paragraph 21 of the Lease provides in part:

All understandings and agreements heretofore made between the parties hereto are merged in this contract, which alone fully and completely expresses the agreement between Owner and Tenant and any executory agreement hereafter made shall be ineffective to change, modify, discharge or effect an abandonment of it in whole or in part, unless such executory agreement is in writing and signed by the party against whom enforcement of the change, modification, discharge or abandonment is sought.

"Where a lease contains a clause requiring any modification of the terms of such lease to be in a writing signed by the landlord, an oral modification is generally precluded" (Joseph P. Day Realty Corp. v Lawrence Assoc., 270 AD2d 140, 141 [1st Dept 2000]). "The enforceability of such provisions is codified in General Obligations Law § 15-301 (1)" (Eujoy Realty Corp. v Van Wagner Communications, LLC, 22 NY3d 413, 422 [2013]). "[A] party can overcome such a clause and enforce an oral modification to a written agreement by demonstrating either that the oral modification 'has in fact been acted upon to completion'; or, where there is only partial performance, that 'the partial performance [is] unequivocally referable' to the alleged oral modification" (Eujoy Realty Corp., 22 NY3d at 422, quoting Rose v Spa Realty Assoc., 42 NY2d 338, 343 [1977]). "When the parties dispute whether an oral agreement has been formed, it is the conduct of the party advocating for the oral agreement that is 'determinative,' although the conduct of both parties may be relevant" (Eujoy Realty Corp., 22 NY3d at 426 [emphasis supplied]).

Respondent argues that the parties partially performed the oral modification based on: the alleged oral agreement to reduce the rent to Modified Rent;^[FN8] respondent's payment every month of the reduced rent, with the memo line indicating the month for which the Modified Rent was meant to cover; petitioner's failure to mention any objection to the Modified Rent, especially during the "ceremonial phone call" where petitioner's employee called respondent's employee to [*9]find out if/when a check was forthcoming, or otherwise state an intention to seek the balance or full rent as set forth in the lease.

The Court finds that respondent failed to demonstrate that the claimed modification is enforceable under the concept of partial performance. The payment of rent, as Modified, is not unequivocally referable to the modification as such duty to pay rent was preexisting under the lease (see Joseph P. Day Realty Corp., 270 AD2d at 142). This is particularly so, where, as here, the lease also contains a "no wavier" provision ^[FN9] — thus, the acceptance of the Modified Rent each month was also compatible with the pre-existing lease and not referable to any purported modification (see Eujoy Realty Corp., 22 NY3d at 426-27 [finding that tenant's "payment of prorated rent in lieu of the annual basic rent [required by the lease] was just as demonstrative of breach of contract as of completion of the purported oral modification"]). Indeed, petitioner's rent ledger shows payments being applied to the oldest arrears, consistent with the lease's "no waiver" provision (see generally NYSCEF Doc Nos 30, 66). That respondent put the month and year of the rent — for which it thought the check was meant to cover (NYSCEF Doc No 39, copies of tenant's rent checks) — is immaterial. It should not come as a surprise now, only after this litigation commenced, as petitioner's email in June of 2021, attaching an invoice, shows that payments made in, e.g., March, April and May of 2021 were described as crediting rent owed from August and September of 2020 (see NYSCEF Doc No 59 at 2).

Petitioner also argues that the purported modification itself is illogical. For if the parties allegedly agreed to "Modified Rent" defined as "approximately half the rent set forth in the Lease" (Fazio aff at ¶ 6), then it is unclear why respondent continues to pay $21,424.50 each month since 2020 through 2024, when "half the rent set forth in the Lease" increased each year through 2027.^[FN10] In this regard, it could be said that respondent has failed to partially perform based on its own terms or interpretation of the purported modification.

Also worthy to note is respondent's own conflicting statements in Fazio's affidavit: while first stating that, despite conversations with members of petitioner's executive committee, there was no indication that petitioner was dissatisfied with the Modified Rent, Fazio states that "Subsequent to these conversations [at some unspecified time "in the beginning of the [*10]pandemic"], at some time in late August 2022 or early September 2022, Psaltos and I communicated about the rent and the possibility of coming to a resolution of the issue" (Fazio aff at ¶ 27). If there was no issue with Modified Rent being accepted as full satisfaction of the rent due in the lease, then what is the "issue" "about the rent" that needed to be resolved?

Additionally, "[f]undamental to the establishment of a contract modification is proof of each element requisite to the formulation of a contract, including mutual assent to its terms" and consideration (Beacon Term. Corp. v Chemprene, Inc., 75 AD2d 350, 354 [2d Dept 1980]). There is insufficient proof of any bargained-for consideration (cf. 757 3rd Ave. Assoc., LLC v Patel, 117 AD3d 451, 451-55 [1st Dept 2014] [landlord's interpretation of the lease modification, which was reduced to writing, would render the tenant's bargained for consideration as illusory]; Rose, 42 NY2d at 343-44 [where an oral modification was plausible, at least, because consideration was apparent in that the seller wanted cash in exchange for purchaser's request for an additional 48 units instead of 102]; see, e.g., Bank Leumi Trust Co. of NY v Block 3102 Corp., 180 AD2d 588, 589-90 [1st Dept 1992] ["there is no evidence to suggest that plaintiff gained any financial advantage or that defendants incurred any detriment by reason of plaintiff's release of its lien . . . Without consideration, no modification is established"]). The Court finds that there was also no mutual assent to accepting the purported Modified Rent, indefinitely, i.e., for the remainder of the seven years of the lease term, especially in light of petitioner's evidence communicating to respondent twice in April of 2020 and June 2021 that it wanted to address the arrears (see NYSCEF Doc Nos 58, 59) (see, e.g., Joseph P. Day Realty Corp., 270 AD2d at 142 ["When juxtaposed against landlord's immediate commencement of this action, it cannot be said that landlord admitted the existence of the purported agreement by remaining silent in the face of the [tenant's] letter" memorializing the putative modification]).

Respondent also claims the oral modification should be enforceable on the grounds of equitable estoppel, which is "[a]nalytically distinct from the doctrine of partial performance" (Rose, 42 NY2d at 344). Under this doctrine, "[o]nce a party to a written agreement has induced another's significant and substantial reliance upon an oral modification, the first party may be estopped from invoking the statute to bar proof of that oral modification" (id.). "Comparable to the requirement that partial performance be unequivocally referable to the oral modification, so, too, conduct relied upon to establish estoppel must not otherwise be compatible with the agreement as written" (id.).

Here, respondent reiterates its contentions that were set forth in the laches argument, supra — namely, that respondent would have "considered shutting down the business" or reallocated its PPP funds (NYSCEF Doc No 41 at 17). The Court rejects these contentions as insufficient to demonstrate "significant and substantial reliance" in this context for the same reasons discussed above, i.e., such assertions are unsupported, speculative, and even if respondent had an extra $58,000.00 to pay petitioner, the figure is insignificant when compared to the arrears respondent had accrued before the purported modification.

Ultimately, the Court finds that respondent unilaterally failed to pay the full amount of rent required by the lease. "[I]f such unilateral conduct were sufficient, the requirement that modifications be in a writing signed by the landlord would be rendered a nullity" (Joseph P. Day Realty Corp., 270 AD2d at 142).

"A waiver is the voluntary abandonment or relinquishment of a known right. It is essentially a matter of intent which must be proved" (Madison Ave. Leasehold, LLC v Madison [*11]Bentley Assoc. LLC, 30 AD3d 1, 5-7 [1st Dept 2006], affd 8 NY3d 59 [2006], quoting Jefpaul Garage Corp. v Presbyterian Hosp. in City of NY, 61 NY2d 442, 446 [1984] [internal quotations omitted]). "A waiver may not be inferred by the acceptance of rent where the parties have expressly agreed otherwise" (P & D Cards and Gifts v Matejka, 150 AD2d 660, 662 [2d Dept 1989], citing Jefpaul Garage, 61 NY2d at 446 [noting "a clause in a lease specifically providing that acceptance of rent would not be a waiver should be enforced"]).

"[A] contracting party may orally waive enforcement of a contract term notwithstanding a provision to the contrary in the agreement" (Madison Ave. Leasehold, LLC, 30 AD3d at 5-6, quoting Bank Leumi Trust Co. of NY, 180 AD2d at 590). "Such waiver may be evinced by words or conduct, including partial performance" (Bank Leumi Trust Co. of NY, 180 AD2d at 590). "[I]n the absence of any detriment resulting from a change of position by defendants, the waiver does not give rise to an estoppel" (id.). As respondent relies on partial performance and estoppel, the Court has already rejected those arguments.

In any event, to find a waiver under these circumstances would "effectively render[] the no waiver clause of the lease meaningless" (Elite Gold, Inc. v TT Jewelry Outlet Corp., 31 AD3d 338, 340 [1st Dept 2006]).

The Court has considered respondent's remaining arguments and finds them unavailing.

In a nonpayment proceeding, the petition must set forth and the petitioner must establish a statement of the petitioner's interest, a statement of the respondent's interest, a description of the premises, the facts upon which the proceeding is predicated, the multiple-dwelling registration statement for premises located within New York City, a statement regarding the premises' rent-regulatory status, and the relief sought (Content of Petition, G NY Prac, Landlord and Tenant Practice in New York § 14:108).

"For its prima facie case, the landlord must prove each of the Petition's allegations by way of documentary evidence and/or testimony which is relevant, material, and competent" (Trial procedures—Petitioner's prima facie case, G NY Prac, Landlord and Tenant Practice in New York § 14:459).

Here, petitioner adequately demonstrated its status as landlord (see also NYSCEF Doc No 18) and provided a copy of the lease between the parties (NYSCEF Doc No 29); excerpts from the rent ledger maintained by petitioner (NYSCEF Doc Nos 30, 66); copies of the petition, rent demand letter, affidavit of service, and answer (NYSCEF Doc No. 27-28); and real estate tax escalation ledger (NYSCEF Doc No 31). This documentation is supported by an affidavit from Zacharias Papanagnostou, petitioner's treasurer, who attests through personal knowledge and upon review of the relevant rental records that respondent defaulted on its lease obligations by failing to pay rent (see NYSCEF Doc No 24). The annexed documents establish that respondent held the subject premises pursuant to a lease agreement with petitioner, which obligated the payment of rent to petitioner (see NYSCEF Doc Nos 26-31). They also establish that petitioner served a fourteen-day rent demand prior to the filing of the instant petition, and that respondent failed to either vacate the premises or pay outstanding arrears before the noticed date (see id.). The Court finds that petitioner has established its prima facie case for judgment of possession as a matter of law.

Respondent failed to address the substance of petitioner's motion in its cross-motion [*12]papers. Although it argued in reply ^[FN11] that there are issues of fact (NYSCEF Doc No 63 at ¶ 3), respondent fails to set forth any facts that are in dispute requiring a trial. In any event, the Court has considered all of respondent's defenses and arguments, which was submitted to the Court as being dispositive as a matter of law in respondent's favor. None of the evidence submitted in support of the cross-motion demonstrates a material issue of fact that requires to be tried, as opposed to unequivocally showing entitlement to judgment as a matter of law, which the Court finds in petitioner's favor.

The Court grants the motion to amend the petition to include all rent and additional rent arrears to the filing of the instant motion (Realty Corp v Wang Law Office, PLLC, 49 Misc 3d 51, 54 [App Term, 2d, 11th, & 13th Jud Dists 2015] ["it is established practice in nonpayment proceedings to allow the amendment of the petition to include all rent that has accrued following the commencement of the proceeding"]).

Based on the rent ledger and lease, the Court finds that petitioner has met its prima facie burden to show entitlement to rent arrears totaling $1,911,830.16 through October 31, 2024 and outstanding real estate taxes sought as additional rent in the amount of $582,475.21 through the 2024-2025 tax year (see NYSCEF Doc Nos 30, 66).

Petitioner is also awarded costs and disbursements against respondent, in the total amount of $50.00 (see RPAPL 747; see also NY City Civ Ct Act § 1906-a).

Accordingly, it is hereby ORDERED that petitioner's motion for summary judgment and other relief is granted (motion sequence no. 002); and it is further

ORDERED that respondent's cross-motion for summary judgment is denied (motion sequence no. 003); and it is further

ORDERED that the Clerk is directed to enter a final judgment granting the nonpayment petition and awarding possession of the premises — i.e., the entire first floor and basement of 246 Eighth Avenue, New York, New York 10011 — to petitioner OMONOIA SOCIETY OF KASTORIANS INC. D/B/A THE SOCIETY OF KASTORIANS "OMONOIA" against NEW LONDON PHARMACY INC., along with a money judgment in petitioner's favor and against respondent NEW LONDON PHARMACY INC. in the amount of $2,494,305.37 representing rent and additional rent through October 31, 2024, with costs and disbursements in the amount of $50.00; and it is further

ORDERED that a warrant of eviction shall be issued forthwith, without stay. The earliest execution date of the warrant is December 16, 2024; and it is further

ORDERED that the petition is discontinued against the fictitious entities, "John Doe," "Jane Doe," "XYZ Corp." and "XYZ LLC" without prejudice.

This constitutes the decision and order of the Court.