Opinion
April 16, 1991
Appeal from the Supreme Court, New York County (Phyllis Gangel-Jacob, J.).
The IAS court properly granted injunctive relief, whether measured under the test for a Yellowstone injunction (Stuart v D D Assocs., 160 A.D.2d 547) or measured under the traditional test for a preliminary injunction (Rosenthal v. Mahler, 141 A.D.2d 625). A termination clause in a lease does not result in automatic termination if it requires some action on the part of the landlord (Perrotta v. Western Regional Off-Track Betting Corp., 98 A.D.2d 1). Long-standing acceptance of late payment of rent can constitute waiver by the landlord of the right to enforce strictly a deadline for payment of rent (61 E. 72nd St. Corp. v. Zimberg, 161 A.D.2d 542). The agreement provides for notice to be given by the landlord, and a notice of default sent in the attorney's name is ineffective where the attorney was not named as agent in the agreement (Filmtrucks, Inc. v. Express Indus. Term. Corp., 127 A.D.2d 509). Although none of these issues can be determined as a matter of law at this time, the plaintiff has shown a likelihood of success on the merits on each of them.
Concur — Sullivan, J.P., Wallach, Asch and Smith, JJ.