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

This is a commercial landlord and tenant action wherein plaintiff Haronco LLC ("Landlord") seeks to recover damages for breach of a net lease agreement. Plaintiff moves for an Order granting it partial summary judgment pursuant to CPLR § 3212(e) in its favor against [*2]defendant Ibrahim Fatiha ("Tenant"). Additionally, plaintiff moves to dismiss defendant's affirmative defenses and counterclaims pursuant to CPLR §§ 3211 (a)(1), and 3211 (a)(6).

According to the parties, plaintiff landlord and defendant tenant entered into a net lease for the ground floor and basement (the "Leased Premises") in the building located at 618 Avenue U, Brooklyn, New York 11223 (the "Building"). The lease term was for five years starting August 1, 2021 ending July 31, 2026. However, defendant vacated the premises before the end of the lease agreement term. By stipulation, defendant agreed to surrender the premises and relinquished its rights to its $15,000.00 security deposit so that it could be applied towards rent arrears. Additionally, the parties preserved their respective rights to bring claims and defenses arising out of the parties' lease obligations.

Before this court is plaintiff's action to recover rent arrears, late fees, brokerage reimbursement fees, and attorneys' fees, in the amount of $40,250.00 plus interest, costs and disbursements, and attorneys' fees caused by defendant's alleged breach of the lease covenants. Plaintiff argues that under the lease, defendant was responsible for all maintenance and repairs concerning the interior of the premises. Hence, given defendant's lease responsibility and that the mold is in the interior of the premises, as a matter of law, plaintiff was not required to abate the mold.

In opposition, defendant contends that plaintiff fails to dispute that the toxic mold present at the premises constitutes a structural defect. The structural defect caused the toxic mold condition to plague the leased premises. Therefore, landlord was required to remove the hazardous mold. Defendant spotlights plaintiff's attempts to remediate the toxic mold to show that the toxic mold was considered structural by plaintiff landlord. Thus, given plaintiff's failure to remove the toxic mold defendant was caused to be constructively evicted from the leased premises. Consequently, plaintiff has failed to establish its prima facie burden for this court to grant plaintiff's summary judgment motion.

Summary judgment is a drastic remedy and will not be granted if there is any doubt as to the existence of a triable issue. Andre v. Pomeroy 35 NY2d 361 (1974). The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist. Piecraft Wantagh, LLC v Willow Wood Assoc., L.P., 216 AD3d 1010 (2d Dept. 2023). Hence, summary judgment is appropriate when there are no disputed material facts. Andre v Pomeroy, 35 NY2d at 364. Furthermore, the Court of Appeals, noted that to obtain summary judgment

it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact. Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case.

[*3]Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067—1068 (1979) (internal citations omitted). Thus, the motion must be supported "by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof, such as depositions" CPLR § 3212 (b). A party can prove a prima facie entitlement to summary judgment through the affirmation of its attorney based upon documentary evidence. Zuckerman v. City of New York, 49 NY2d 557, 562 (1980)(moving party must tender sufficient evidentiary proof to warrant judgment as a matter of law). The non-moving party must proffer its own evidence to show disputed material facts requiring a trial. id. Moreover, the court should accept the non-movant's evidence as true, Hotopp Assocs., Ltd. v Victoria's Secret Stores, Inc., 256 AD2d 285, 286-287 (1st Dept. 1998) and grant the benefit of all reasonable inferences. Negri v Stop & Shop, Inc., 65 NY2d 625, 626 (1985).

Alternatively, to defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact, CPLR §3212 [b]. Thus, when the proponent of a motion for summary judgment bears the initial burden of presenting sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact once satisfied, Alvarez v. Prospect Hospital, 68 NY2d 32 923 (1986), the burden shifts to the non-moving party to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or to tender an acceptable excuse for his or her failure to do so. Vermette v Kenworth Truck Co., Div. of Paccar, Inc., 68 NY2d 714, 717 (1986); Zuckerman v City of New York, 49 NY2d at 560, 562.

In this action, the parties dispute focuses on whether the landlord was responsible for making repairs to eliminate toxic mold on the lease premises and, its failure to do so, created an environmental hazard that resulted in a constructive eviction of defendant tenant. Cf. NPR, LLC v. K.A.B.B., Inc., 25 AD3d 674, 811 N.Y.S.2d 706 (2006)(landlord recovered unpaid rent from tenant which vacated premises prior to lease expiration due to landlord's failure to eliminate environmental hazard namely toxic mold by establishing that toxic mold condition was abated timely and demised premises did not pose environmental hazard). Clearly, it cannot be disputed that persistent mold contamination is an environmental hazardous condition that, under these facts, needed to be abated by the landlord. Thus, failure to abate timely the toxic mold condition renders the leased premises uninhabitable resulting in a constructive eviction of a tenant.

Hence, the landlord failed to make prima facie showing in its motion for summary judgment given that questions of fact exist as to the landlord's knowledge of the hazardous mold condition prior to renting it to defendant, the timeliness of the attempted remediation, whether the remediation was successful during the tenant's occupancy, and whether a structural defect caused the mold proliferation in the leased premises. Also questions of fact exist regarding whether the hazardous mold condition was latent and, thus, not discoverable upon a reasonable inspection by defendant tenant who accepted the premises "as is". Applegate v. Long Island Power Auth., 53 AD3d 515, 862 N.Y.S.2d 86 (2008)("When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed").

ORDERED, that the plaintiff's motion for summary judgment, pursuant to CPLR § 3212 (b), is DENIED; and it is further

ORDERED, that the plaintiff's motion to dismiss defendant's affirmative defenses and counterclaims, pursuant to CPLR §§ 3211 (a)(1), and 3211 (a)(6), is DENIED.