YELLOWSTONE INJUNCTION DENIED

146 Broadway Assoc., LLC v Bridgeview at Broadway, LLC, 2018 NY Slip Op 05990, Decided on September 12, 2018, Appellate Division, Second Department:

""A Yellowstone injunction maintains the status quo so that a commercial tenant, when confronted by a threat of termination of its lease, may protect its investment in the leasehold by obtaining a stay tolling the cure period so that upon an adverse determination on the merits the tenant may cure the default and avoid a forfeiture' of the lease" (JT Queens Carwash, Inc. v 88-16 N. Blvd., LLC, 101 AD3d 1089, 1089-1090, quoting Graubard Mollen Horowitz Pomeranz & Shapiro v 600 Third Ave. Assoc., 93 NY2d 508, 514; see Korova Milk Bar of White Plains, Inc. v PRE Props., LLC, 70 AD3d 646, 647). " To obtain a Yellowstone injunction, the tenant must demonstrate that (1) it holds a commercial lease, (2) it received from the landlord either a notice of default, a notice to cure, or a threat of termination of the lease, (3) it requested injunctive relief prior to both the termination of the lease and the expiration of the cure period set forth in the lease and the landlord's notice to cure, and (4) it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises'" (JT Queens Carwash, Inc. v 88-16 N. Blvd., LLC, 101 AD3d at 1090, quoting Barsyl Supermarkets, Inc. v Avenue P Assoc., LLC, 86 AD3d 545, 546). A plaintiff demonstrates that it has the desire and ability to cure its alleged default by indicating in its motion papers that it is willing to repair any defective condition found by the court and by providing proof of the substantial effort it has already made in addressing the default listed on the notice to cure (see Terosal Props. v Bellino, 257 AD2d 568).

In this case, the plaintiff failed to satisfy its burden of adducing evidence that it is willing and able to cure its default. While the plaintiff indicated in its motion papers that it is willing to install soundproofing to correct the violations of the noise regulations, it failed to demonstrate such willingness and its ability to do so since it did not make any effort to correct the problem between the last test conducted by its own expert on October 13, 2014, which found a violation of the noise regulations, and the submission of its reply papers to the Supreme Court on February 3, 2016. Accordingly, the Supreme Court improvidently exercised its discretion in granting the plaintiff's motion for a Yellowstone injunction."