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THE RUXTON TOWER LIMITED PARTNERSHIP, Plaintiff, - v - CENTRAL PARK TAEKWONDO, LLC, Defendant.

THE RUXTON TOWER LIMITED PARTNERSHIP, Plaintiff, - v - CENTRAL PARK TAEKWONDO, LLC, Defendant.

Supreme Court of New York, New York County

September 3, 2021, Decided

INDEX NO. 656715/2020

Opinion

DECISION + ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 001) 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 28, 29, 30, 40, 41, 42 were read on this motion to/for DISMISS DEFENSE

The motion is decided in accordance with the attached Decision and Order.

DECISION + ORDER ON MOTION

HON. NANCY BANNON:

The following e-filed documents, listed by NYSCEF document number (Motion 001) 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 28, 29, 30, 40, 41, 42 were read on this motion to/for DISMISS DEFENSE

I. INTRODUCTION

In this action wherein the plaintiff landlord seeks, inter alia, to recover damages for breach of a commercial lease agreement by the defendant, a former tenant, the plaintiff moves pursuant to CPLR 3211(a)(1), CPLR 3211 (a)(7), and CPLR 3211(b) to dismiss the defendant's counterclaims and to strike the ninth, tenth, and eleventh affirmative defenses. The defendant opposes the motion. For the following reasons, the motion is granted.

II. BACKGROUND

The parties entered into a 10-year commercial lease agreement with respect to retail space on the ground floor of the premises located at 50 West 72nd Street in Manhattan in 2010. The parties [*2]  entered into a lease addendum agreement in 2013 and a lease extension agreement (together with the lease addendum agreement and the lease, the lease agreements) in February 2020, shortly before the outbreak of the COVID-19 pandemic resulted in nationwide shutdowns and restrictions on in-person activities. The lease extension agreement extended the lease until December 31, 2025.

Prior to the pandemic, the defendant operated a Taekwondo school at the subject premises. Executive orders requiring the closure of gyms and fitness facilities beginning on March 16, 2020, necessitated the closure of the Taekwondo school. Nonetheless, the defendant continued to pay monthly rent through August 2020. As of August 31, 2020, the defendant vacated the premises and surrendered possession to the plaintiff.

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2021 N.Y. Misc. LEXIS 5015 *; 2021 WL 4061399

THE RUXTON TOWER LIMITED PARTNERSHIP, Plaintiff, - v - CENTRAL PARK TAEKWONDO, LLC, Defendant.

Notice: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

Prior History: Ruxton Tower P'ship v. Cent. Park Taekwondo, 2021 N.Y. Misc. LEXIS 2361 (N.Y. Sup. Ct., May 4, 2021)

CORE TERMS

lease, counterclaims, pandemic, premises, lease agreement, affirmative defense, parties, rent, frustration of purpose, Tenant, casualty, indoor, impossibility, foreseeable, obligations, frustrated, excused, repair, governmental restrictions, executive order, mutual mistake, restrictions, reformation, regulations, abatement, in-person, grounds, reasons, orders, demised premises