The following e-filed documents, listed by NYSCEF document number (Motion 002) 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70 were read on this motion to/for JUDGMENT — SUMMARY. INTERIM DECISION + ORDER ON MOTION Upon the foregoing documents, and after oral argument, which took place on January 10, 2023, where Joshua Nadelbach, Esq. appeared for the Plaintiff 558 Seventh Ave. Corp. (“Landlord”) and Diana Rubin, Esq. appeared for Defendants E & B Barbers, Inc. (“Tenant”) and Emoniel Mulokandov (“Guarantor”) (collectively “Defendants”), Plaintiff’s motion and Defendants’ cross-motion are decided as follows: The branches of Landlord’s motion seeking to amend the pleadings to conform to the evidence pursuant to CPLR §3025(c) and dismissing Defendants’ affirmative defenses pursuant to CPLR §3211(a) are granted. The branch of Landlord’s motion seeking summary judgment, pursuant to CPLR §3212 is denied without prejudice against Tenant, and upon review of the record, summary judgment dismissing the Complaint is granted to Guarantor pursuant to CPLR §3212(b). The branch of Defendants’ cross-motion seeking leave to amend the Answer to add an affirmative defense alleging constructive eviction is denied, and the branch seeking leave to amend Defendants’ answer to add the Guaranty Law as an affirmative defense is granted. The branch of Defendants’ cross-motion seeking renewal of its pre-answer motion to dismiss pursuant to CPLR §2221 is moot. I. Factual and Procedural Background Landlord is the deed owner of the building located at 200 West 40th Street a/k/a 558 7th Avenue in New York, New York (the “Building”) (id. at 2). Pursuant to a written lease agreement dated December 30, 2016 (the “Lease”), Tenant leased the lower-level retail space of the Building (the “Premises”) from Landlord (NYSCEF Doc. 39). It is undisputed that to enter the Premises, individuals need to go through a lower-level corridor that leads to the subway. In Article 66 of the Lease Rider, Tenant agreed to take the premises “as is” and that Landlord was under no obligation to perform any work in the Premises for Tenant’s continued occupancy (id. at §66). However, in the same paragraph, Landlord did agree that it “shall maintain the lower-level corridor at the building and install new lighting therein as soon as reasonably practical” (id.). The lease term commenced on January 1, 2017 and was to end on December 31, 2021 (id.). The Lease was guaranteed by a written guaranty executed by Guarantor wherein Guarantor personally obligated himself to pay for Tenant’s lease obligations (NYSCEF Doc. 40). Tenant defaulted on the Lease in March 2020 (NYSCEF Doc. 35 at 14). In October of 2020, Landlord and Tenant agreed to an amendment of the Lease (the “Lease Amendment”) (NYSCEF Doc. 41). The Lease Amendment extended the Lease term to December 31, 2026 (id.). In the Lease Amendment, the Tenant and Landlord agreed there was unpaid rent from April 1, 2020 through October 30, 2020 equaling $35,712.53, not including any late fees (id. at 5). However, paragraph 5 of the Lease Amendment forgave Tenant’s default and explicitly extended Tenant’s time to cure its prior defaults so long as it remained timely in its rent payments. Tenant purportedly made the first few initial payments under the Lease Amendment but defaulted again in January of 2021 (NYSCEF Doc. 35 at 16). Tenant then, without Landlord’s permission, unilaterally abandoned the premises in breach of the Lease on May 28, 2021 (id.). Landlord initiated this action via summons and complaint on June 16, 2021 (NYSCEF Doc. 1). On August 27, 2021, Defendants responded with a pre-answer motion to dismiss (NYSCEF Doc. 5). Defendants argued that the causes of action against Tenant should be dismissed because Tenant was constructively evicted by the Landlord (NYSCEF Doc. 6). Defendants argued that the causes of the action against the Guarantor should be dismissed because they are barred by the Guaranty Law (id.). As to their constructive eviction argument, Defendants claimed that the entrance and lower-level corridor leading to the Premises became overrun with drug addicts and aggressive individuals who threatened Tenant’s employees and customers with violence (NYSCEF Doc. 7 at
