Opinion
January 24, 1994
Appeal from the Supreme Court, Nassau County (Hart, J.).
Ordered that the order is modified, on the law, by deleting the provision thereof which confirmed the seventh paragraph of the recommendations of the Special Referee, and substituting therefor a provision disaffirming that recommendation; as so modified, the order is affirmed, without costs or disbursements.
This case concerns an effort by the defendant, Fifth Avenue of Long Island Realty Associates, Inc. (hereinafter Fifth Avenue Realty), to cancel a commercial lease to the plaintiff Waldbaum, Inc. (hereinafter Waldbaum). The defendant attempted to terminate the lease based on alleged violations, including, inter alia, failure to operate a "first class" store.
Contrary to Fifth Avenue Realty's assertions on appeal, the Supreme Court properly granted Waldbaum a Yellowstone injunction (see, First Natl. Stores v. Yellowstone Shopping Ctr., 21 N.Y.2d 630; Post v. 120 E. End Ave. Corp., 62 N.Y.2d 19; Suarez v. El Daro Realty, 156 A.D.2d 356). This injunction, once granted before the cure period under the lease had expired, was properly extended by the court (see, Mann Theatres Corp. v Mid-Island Shopping Plaza Co., 94 A.D.2d 466, affd 62 N.Y.2d 930; cf., Fratto v. Red Barn Farmers Mkt. Corp., 144 A.D.2d 635; Continental Towers Garage Corp. v. Contowers Assocs. Ltd. Partnership, 141 A.D.2d 390). The injunction also tolled the cure period applicable to the renewal option clause of the lease (cf., J.N.A. Realty Corp. v. Cross Bay Chelsea, 42 N.Y.2d 392; Sy Jack Realty Co. v. Pergament Syosset Corp., 27 N.Y.2d 449; Souslian Wholesale Beer Soda v. 380-4 Union Ave. Realty Corp., 166 A.D.2d 435; Vanguard Diversified v. Review Co., 35 A.D.2d 102).
Although we find that the Supreme Court properly credited the Special Referee's finding that Waldbaum was in default of the lease, it improperly confirmed paragraph seven of the Referee's recommendations that the defendant's "designated health inspector" inspect the premises monthly after the default is cured and that the court retain jurisdiction over the parties to determine all future disagreements between them concerning those inspections. The parties' future conduct is regulated by the terms of the lease, and the implementation of the Special Referee's findings in paragraph 7 would constitute an impermissible rewriting of the lease (see, Slamow v. Del Col, 174 A.D.2d 725, affd 79 N.Y.2d 1016). Rosenblatt, J.P., Ritter, Copertino and Joy, JJ., concur.