Opinion
15686 Index No. 654899/21 Case No. 2021–03858
04-07-2022
NEW DEAL REALTY LLC, Plaintiff-Appellant, v. 684 OWNERS CORP., Defendant-Respondent.
Loanzon LLP, New York (Tristan C. Loanzon of counsel), for appellant. Schwartz Sladkus Reich Greenberg Atlas LLP, New York (Eric M. Sable of counsel), for respondent.
Loanzon LLP, New York (Tristan C. Loanzon of counsel), for appellant.
Schwartz Sladkus Reich Greenberg Atlas LLP, New York (Eric M. Sable of counsel), for respondent.
Manzanet–Daniels, J.P., Kern, Gesmer, Oing, Rodriguez, JJ.
Order, Supreme Court, New York County (Arlene Bluth, J.), entered on or about October 15, 2021, which denied plaintiff's motion for a Yellowstone injunction, unanimously reversed, on the law, without costs, and the motion granted.
The parties do not dispute that plaintiff holds a commercial lease, it received a notice of default from defendant landlord for failure to pay rent, and that it sought injunctive relief prior to the termination of the lease (see Graubard Mollen Horowitz Pomeranz & Shapiro v. 600 Third Ave. Assoc., 93 N.Y.2d 508, 514, 693 N.Y.S.2d 91, 715 N.E.2d 117 [1999] ). We find that plaintiff has also demonstrated that "it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises" ( id. [internal quotation marks omitted]). Plaintiff's managing member's affidavit that "[i]n the event ... that the Court determines that [plaintiff] owes the rent demanded, [it] is ready, willing, and able to cure," is sufficient in that regard (see WPA/Partners v. Port Imperial Ferry Corp., 307 A.D.2d 234, 236, 763 N.Y.S.2d 266 [1st Dept. 2003] ). At this juncture, plaintiff is not required to prove its ability to cure; "rather, the proper inquiry is whether a basis exists for believing that [it] has the ability to cure through any means short of vacating the premises" ( id. at 237, 763 N.Y.S.2d 266 [internal quotation marks and brackets and ellipses omitted]; see also Jemaltown of 125th St. v. Leon Betesh/Park Seen Realty Assoc., 115 A.D.2d 381, 382, 496 N.Y.S.2d 16 [1st Dept. 1985] ; Herzfeld & Stern v. Ironwood Realty Corp., 102 A.D.2d 737, 738, 477 N.Y.S.2d 7 [1st Dept. 1984] ). Here, "plaintiff has the motivation and the plausible means of curing the default" ( WPA, 307 A.D.2d at 237, 763 N.Y.S.2d 266 [internal quotation marks omitted]). "[T]he purpose of a Yellowstone injunction is to preserve the status quo, not to resolve the underlying merits of the parties’ dispute" ( Gap, Inc. v. 44–45 Broadway Leasing Co., LLC, 191 A.D.3d 549, 550, 143 N.Y.S.3d 6 [1st Dept. 2021] ). Plaintiff's entitlement to a Yellowstone injunction does not require that it demonstrate a likelihood of success on the merits ( Sokoloff Arts Found. Inc. v. Nur Ashki Jerrahi Community, 192 A.D.3d 524, 525, 140 N.Y.S.3d 418 [1st Dept. 2021] ). Instead, "[i]t can simply deny the alleged breach of its lease" ( Artcorp Inc. v. Citirich Realty Corp., 124 A.D.3d 545, 546, 2 N.Y.S.3d 109 [1st Dept. 2015] ). Furthermore, even if plaintiff is ultimately found to be in breach of the lease, Yellowstone relief allows it to cure the defect and retain its tenancy (see 159 MP Corp. v. Redbridge Bedford, LLC, 33 N.Y.3d 353, 366, 104 N.Y.S.3d 1, 128 N.E.3d 128 [2019] ).
We have considered the parties’ other arguments and find them unavailing.