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

Papers Papers Numbered

Notice of Motion, Affirmation

and Affidavit in Support,

Memo of Law,and Exhibits 1

Affirmation in Opposition, and Exhibits 2

Memo of Law in Reply 3

Petitioner commenced this commercial holdover proceeding seeking to recover possession of the premises located at Store #3, the Ground Floor Store Space and Storage Space, in the building known as 197 Seventh Avenue, New York, NY 10011 ("subject premises"), based upon the allegation that respondent Sal's Convenience Corp. ("respondent") continues in possession of the subject premises without petitioner's consent after its lease was terminated and expired on September 22, 2023. The petition seeks possession of the subject premises with [*2]issuance of a warrant to remove respondent therefrom, a money judgment against respondent for use and occupancy, and attorneys' fees. The petition is dated September 25, 2023.

Petitioner moves for summary judgment pursuant to CPLR 3212, and for dismissal of respondent's affirmative defenses. In support of the motion, petitioner submits the affirmation of Raul Escarza, petitioner's agent, and various exhibits. Respondent submits opposition. The decision and order is as follows:

Petitioner is the owner and landlord of the subject premises (NYSCEF Doc. No. 13). In April 2021, respondent entered into a lease agreement with petitioner's predecessor in interest, as landlord, for possession of the subject premises (NYSCEF Doc. No. 14). Pursuant to paragraphs 8 and 42 of the lease, respondent was required to carry certain insurance policies throughout the entire term of the lease. Specifically, respondent was required, at its sole cost and expense, to maintain commercial general liability insurance in an amount no less than $1,000,000.00 for injury/death to persons and damage to property; Worker's Compensation Insurance, as required by law; and plate glass insurance (see id., ¶42). Additionally, respondent was required to obtain insurance from a reputable and independent insurer, rated in Best's Insurance Guide (or any successor thereto) as having a general policyholder rating of not less than "A", and was required to name the owner of the premises as an additional insured (see id.).

Petitioner states that respondent failed to maintain proper insurance coverage through the pendency of its tenancy. Petitioner states respondent provided it with Certificates of Liability Insurance which show that there was a gap in respondent's coverage from March 25, 2022, to May 9, 2022 (see Escarza Aff, ¶7; NYSCEF Doc. No. 18). Petitioner's attorney also states that he obtained copies of respondent's insurance policies from the insurance producer, Trans World, Inc., and that the policies suggest a gap in insurance from December 21, 2022, through May 9, 2023 (see NYSCEF Doc. Nos. 18, 20). Moreover, none of the documents indicate that respondent carried Worker's Compensation Insurance at any time (see id.). Furthermore, respondent only carried a $50,000.00 policy for commercial general liability insurance for damage to property and did not maintain plate glass insurance (see id.). Additionally, petitioner submits documentation suggesting the owner of the premises was not named as an additional insured from March 24, 2021, through March 24, 2022 (see NYSCEF Doc. No. 18). Petitioner also submits documentation showing that respondent's insurer for the period of May 10, 2022, to May 10, 2023, carried a general policyholder rating of "B" and that its insurer for the period of May 10, 2023, to May 10, 2024, carries a general policyholder rating of "A-" (see NYSCEF Doc. No. 19).

Due to the failure to carry proper insurance, as well as other alleged violations, petitioner served respondent with a 15-day notice to cure by certified mail on August 8, 2023 (see NYSCEF Doc. No. 1). Respondent failed to cure and on September 6, 2023, petitioner served respondent by certified mail with a 5-day notice of termination, effective September 22, 2023 (see id.). Respondent failed to vacate the premises after the termination of the lease and petitioner commenced the instant holdover proceeding. Petitioner served respondent with the notice of petition and petition by substitute service on October 9, 2023, with subsequent mailing on October 10, 2023 (see NYSCEF Doc. No. 16).

In opposition to the motion, respondent argues that petitioner was responsible for securing adequate insurance for the property if respondent failed to do so. Respondent fails to submit an affidavit of anyone with personal knowledge of the facts and instead, relies upon its [*3]attorney affirmation.

Respondent does not dispute there was a gap in insurance coverage from March 25, 2022, to May 9, 2023, but instead argues that it "is not a breach of the lease that warrants eviction" (see NYSCEF Doc. No. 24, ¶23). Respondent concedes that its insurance provider does not meet the Best's Insurance Guide rating of "A" and that it also failed to carry a $1,000.000.00 policy for damage to the premises (see id., ¶¶19, 24). However, respondent argues that paragraphs 8 and 42 of the parties' lease requires petitioner to cure any defects in insurance coverage and then charge respondent any additional fees (see id.).

Respondent also concedes it did not have Worker's Compensation Insurance but argues that there are only four people that work at the store and all of them are owners (see id., ¶20). It argues that since there are no employees at the store, respondent does not have a legal obligation to carry Worker's Compensation Insurance (see id., ¶21). Respondent fails to submit an affidavit of anyone with personal knowledge of the worker composition at respondent's store.

Respondent also concedes that it does not have an additional policy for plate glass insurance (see id., ¶22). However, it argues that it does have coverage for exterior building glass in its current policy, which would cover all damage to glass on petitioner's property (see id.).

Respondent further argues that its current insurance policy lists petitioner as an additional insured (see id., ¶17). However, respondent fails to address the period from March 24, 2021, through March 24, 2022.

The movant on a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). CPLR 3212(b) provides that a summary judgment motion must be supported by an affidavit of a person with knowledge of the facts, as well as other admissible evidence (see JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384-85 [2005]). Once such a showing is made, "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986], citing Zuckerman v City of New York, 49 NY2d at 562). To meet this burden, the opposing party must "lay bare his proofs and make an evidentiary showing that there exists genuine, triable issues of fact" (Oates v Marino, 106 AD2d 289, 291 [1st Dept 1984]).

Through the affidavit of Mr. Escarza and the attached exhibits, petitioner establishes prima facie entitlement to a judgment of possession against respondent. Petitioner established that it is the record landlord of the premises, that respondent's lease was terminated effective September 22, 2023, that petitioner properly served respondent with the notice of petition and petition, and that respondent remains in possession. Consequently, the burden shifts to respondent to produce evidentiary proof sufficient to establish the existence of material issues of fact which require a trial of the action. Respondent fails to meet its burden.

It is well settled that in the commercial landlord-tenant context, failure to maintain insurance as required by the parties' lease is an incurable defect and a material breach of the lease (see Kyung Sik Kim v Idylwood, NY, LLC, 66 AD3d 528 [1st Dept 2009]). Respondent does not dispute there was a gap in insurance coverage from March 25, 2022, to May 9, 2023; concedes that its insurance provider does not meet the Best's Insurance Guide rating of "A"; concedes that it failed to carry a $1,000.000.00 policy for damage to the premises; concedes that it did not have Worker's Compensation Insurance; concedes that it does not have an additional policy for plate glass insurance; and fails to address whether the owner was listed as an additional insured for the period from March 24, 2021, through March 24, 2022. Respondent's argument that it was petitioner's responsibility to cure any defect in insurance coverage and charge respondent for any additional fees is without merit. Paragraphs 8 and 42 of the parties' lease permit petitioner to secure sufficient insurance coverage if respondent defaults, but it does not require petitioner to do so (see NYSCEF Doc. No. 14, ¶¶8, 42).

Turning to respondent's affirmative defenses, none establish the existence of material issues of fact which require a trial of the action. On a motion to dismiss affirmative defenses pursuant to CPLR 3211(b), the petitioner has the burden to demonstrate the defenses are without merit as a matter of law (see 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.). Thus, a "defense should not be stricken where there are questions of fact requiring trial" (id.). However, where affirmative defenses merely plead conclusions of law without any supporting facts, the affirmative defenses should be dismissed pursuant to CPLR 3211(b) (see 170 W. Vil. Assoc. v G&E Realty, Inc., 56 AD3d 372, 372-373 [1st Dept 2008]). Lastly, any affirmative defenses not argued for in opposition to petitioner's motion are constituted abandoned by respondent (see Ng v NYU Langone Med. Ctr., 157 AD3d 549 [1st Dept 2018]; Josephson LLC v Column Fin., Inc., 94 AD3d 479 [1st Dept 2012]).

In its opposition, respondent only opposes petitioner's motion for summary judgment and fails to address the branch of petitioner's motion to dismiss respondent's affirmative defenses. Petitioner demonstrated respondent's affirmative defenses are without merit as a matter of law and respondent abandoned its affirmative defenses by failing to oppose petitioner's motion.

Petitioner also moves for a money judgment for use and occupancy of the premises since the lease was terminated and for attorneys' fees. Petitioner fails to submit any rent ledger, accounting, or invoices to substantiate its requests. As such, the branch of petitioner's motion for summary judgment seeking a money judgment is denied. Petitioner's request for a money judgment and attorneys' fees is severed and preserved for a plenary action and is dismissed without prejudice herein.

Accordingly, it is

ORDERED, that petitioner's motion for summary judgment is granted to the extent that a final judgment of possession of the subject premises as against all respondents is granted; issuance of the warrant of eviction is forthwith, the earliest execution date is April 12, 2024; and it is further

ORDERED, the branch of petitioner's motion for summary judgment seeking a money judgment and attorneys' fees is denied, and petitioner's request for a money judgment and attorneys' fees is severed and preserved for a plenary action and is dismissed without prejudice herein.

This constitutes the decision and order of this court.