Jin Kwan Choi v. 333 Henry Street Corp.

(Sup. Ct. Kings Cty. 5/6/03)

We represented: Defendant

Gloria Cohen Aronin, J.

DECISION and ORDER Upon the foregoing papers, the plaintiff’s motion for a Yellowstone Injunction to, inter alia, enjoin defendant or its agents from taking possession of plaintiff’s premises or from commencing proceedings to terminate or cancel his leasehold interest and proprietary lease is denied. This shall constitute the decision and order of the court.

By lease dated June 3, 1999, plaintiff became a commercial tenant in the building known as 333 Henry Street. The lease is to expire on June 2, 2009. By Notice to Cure dated October 15, 2002, defendant, the landlord, notified plaintiff that he was in default of the lease because of the failure to comply with exhaust system requirements of § 27-777[e] of the Administrative Code of New York City and Reference Standard 13-5, and that he had five days to cure the default. The Notice to Cure expired on October 29, 2002. By Notice of Termination dated November 6, 2002, defendant provided notice pursuant to the lease that it had elected to terminate the lease, effective November 12, 2002, because of plaintiff’s default. On or about January 10, 2003, plaintiff commenced this proceeding by Order to Show Cause for a Yellowstone injunction to, inter alia, enjoin defendant or its agents from taking possession of plaintiffs premises or from commencing proceedings to terminate or cancel his leasehold interest and proprietary lease with respect to the premises.

In opposition to the application for a Yellowstone injunction, defendant argues that the application is untimely. A tenant seeking Yellowstone relief must demonstrate that (1) it holds a commercial lease, (2) it has received a notice of default, notice to cure, or threat of termination of the lease, (3) the application for a temporary restraining order was made prior to expiration of the cure period and termination of the lease, and (4) it has the desire and ability to cure the alleged default by any means short of vacating the premises (see, First Natl. Stores v. Yellowstone Shopping Ctr., 21 NY2d 630 [1968]; Mayfair Super Mkts. v. Serota, 262 AD2d 461 [2d Dept., 1999]). The purpose of a Yellowstone injunction is to allow a tenant confronted by a threat of termination of the lease to obtain a stay tolling the running of the cure period so that after a determination of the merits, the tenant may cure the defect and avoid a forfeiture of the leasehold (see, Graubard Mollen Horowitz Pomeranz & Shapiro v. 600 Third Ave. Assocs., 93 NY2d 508, 514 [1999]; Long Is. Gynecological Servs. v. 1103 Stewart Ave. Assocs. Ltd. Partnership, 224 AD2d, 591, 593 [2d Dept., 1996]; Sportsplex of Middletown v. Catskill Regional Off-Track Betting Corp., 221 AD2d 428 [2d Dept., 1995]). There is no basis for a Yellowstone injunction where it is sought after the expiration of the period to cure or after the service of the notice of termination (see, Long Is. Gynecological Servs. v. 1103 Stewart Ave. Assocs. Ltd. Partnership, supra, at 593; Rappa v. Palmieri, 203 AD2d 270 [2d Dept., 1994]).

Here, the October 15, 2002 Notice to Cure expired on October 29, 2002. When plaintiff failed to cure the alleged defaults, defendant served a notice of termination dated November 6, 2002, terminating plaintiff’s lease as of November 12, 2002. It was not until January 10, 2003, over two months after the expiration of the cure period, plaintiff moved for a Yellowstone injunction. Accordingly, plaintiff’s request for a Yellowstone Injunction must be denied as untimely.

The foregoing shall constitute the decision and order of the court. A copy of this decision and order shall be served upon all parties within thirty days of the date of entry.