not modified by the Third Amendment to the Lease, provides that "[p]ayment of additional rent
pursuant to this paragraph shall be made on a semi-annual basis, unless otherwise billed by the
City of New York or any other governmental agency, after demand based upon a statement
furnished by Landlord to Tenant with each such demand" (id.).
Paragraph 47(h), the nonwaiver provision, which was not modified by the Third
Amendment, provides as follows:
"Any delay or failure of Landlord in billing any payable under this Article shall not
constitute a waiver or in any way impair the continuing obligation of Tenant to make all
payments hereunder, so long as the Landlord notifies Tenant of the amount payable within two
(2) years of its due date" (Landlord's motion, exhibit E).
Mr. Shore avers,
in his affidavit in support of Landlord's motion, that Landlord issued two invoices to Tenant, one
on or about July 1, 2015 and the other on or about July 1, 2016, reflecting that Tenant owed real
estate taxes for the last two years of the lease term. Mr. Shore attaches the invoices, one dated
July 1, 2015 and the other dated July 1, 2016, which show that Landlord issued a "courtesy
discount" to Tenant by not charging the full amount of the taxes allegedly owed under the lease
(see Landlord's motion, exhibits K and L). Mr. Shore states that Landlord, "having
received no additional consideration from [Tenant]," provided Tenant with a courtesy discount in
the amount of $3,801.43 for the period of July 1, 2015 to June 30, 2016, as reflected on the
invoice dated July 1, 2015 (Landlord's motion, Shore affidavit at ¶ 21 and exhibit K).
According to Mr. Shore, Tenant paid only $600 per month during this period, or $316.79 less