457 WEST 50TH STREET LLC v. XYZ (2022)

Order (Hilary Gingold, J.), entered July 12, 2022, affirmed, with $10 costs.

Landlord's motion for summary judgment on the nonpayment petition was properly granted. The commercial tenant is not excused from performance under the lease because of the COVID-19 pandemic. The Appellate Division, First Department has already determined “that the pandemic cannot serve to excuse a party's lease obligations on the grounds of frustration of purpose or impossibility” (Fives 160th, LLC v Qing Zhao, 204 AD3d 439 [2022]; see Knickerbocker Retail LLC v Bruckner Forever Young Social Adult Day Care Inc., 204 AD3d 536 [2022]; 558 Seventh Ave. Corp. v Times Sq. Photo Inc., 194 AD3d 561 [2021], appeal dismissed 37 NY3d 1040 [2021]). Although it was certainly more difficult and less profitable for tenant to operate its business during the pandemic, it was never prevented from using the leased space and remained open for outdoor restaurant service (see Valentino U.S.A., Inc. v 693 Fifth Owner LLC, 203 AD3d 480 [2022]). Tenant also paid the full lease rent from the commencement of the lease in July 2020 through December 2021, when it began making partial payments.

Tenant's affirmative defenses and counterclaims were subject to dismissal, as the defenses were pled in conclusory fashion without supporting facts (see Bank of Am., N.A. v 414 Midland Ave. Assoc., LLC, 78 AD3d 746, 750 [2010]), and the commercial lease provision barring counterclaims was appropriately enforced (see Mid-Island Shopping Plaza Co. v Cutler, 112 AD2d 405, 408 [1985]; 246 W. 38 Holdings LLC v Tufamerica, Inc., 53 Misc 3d 152[A], 2016 NY Slip Op 51720[U][App Term, 1st Dept 2016]).

Tenant's contention that it is entitled to discovery is raised for the first time on appeal, and therefore not properly before us (see Copp v Ramirez, 62 AD3d 23, 31 [2009], lv denied 12 NY3d 711 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur.