Landlord & Tenant

Supreme Ct., Nassau Cty

(Warshawsky, J.)

Tenant moved for a 'Yellowstone' injunction restraining landlord from terminating tenant's leasehold interest. The court denied tenant's motion, holding that because tenant's motion was not made until after the lease's 20-day cure period had expired, tenant was not entitled to a Yellowstone injunction.

The parties' commercial lease provides that upon receiving a notice of default from landlord, tenant has 20 days to cure the default. Upon tenant's failure to cure within the 20-day period, landlord may terminate the lease on five days' notice. On March 1, 2007, landlord sent tenant a notice to cure based on excessive noise that manifested itself in 'stamping' sounds. Tenant did not seek a Yellowstone injunction during the 20-day cure period. When landlord then served a five-day notice of termination, tenant moved for a Yellowstone injunction.

In denying the relief, the court noted that there is no basis for a Yellowstone injunction after expiration of the cure period or after service of the notice of termination. The purpose of the Yellowstone injunction is to 'toll' the cure period until after a determination of the merits of landlord's claim. But once the cure period has expired, there is nothing to toll. The court rejected tenant's argument that the notice to cure was ambiguous, emphasizing that the notice referred to the lease provision creating the 20-day cure period.

Lease Residential; No Yellowstone Relief Available

OQ Partners LLC v. Izzo

NYLJ 7/18/07, p. 20, col. 1

Supreme Ct., Nassau Cty

(Austin, J.)

On tenant's motion for a 'Yellowstone' injunction, landlord moved for summary judgment dismissing the complaint. The court denied the Yellowstone injunction because it concluded that the subject lease was residential, not commercial.

Decedent owned a parcel with three houses and a cottage. Decedent's executor leased one of the houses to a partnership for use by the managing partner as a residence. The lease prohibited alterations without landlord's written permission. Landlord-executor sent the partnership a notice requesting that they cure alleged breaches of the lease ' including painting of kitchen cabinets and performing electrical work. Landlord later extended the cure period. Rather than curing the breaches, tenant moved for a Yellowstone injunction to toll the cure period so that tenant could challenge the alleged breaches without risking eviction if a court were to conclude that tenant had, in fact, breached.

In denying the Yellowstone injunction, the court first held that Yellowstone relief is not available to a residential tenant. The court then concluded that the lease in this case was residential, even though the lease was executed tot he partnership. The court emphasized that there was no evidence that the managing partner had used the premises for any commercial purpose.

Yellowstone Injunction Denied When Cure Period Had Expired

Metal Tek Products, Inc. v. M&S Properties LP

NYLJ 7/11/07, p. 19, col. 3

Supreme Ct., Nassau Cty

(Warshawsky, J.)

Tenant moved for a 'Yellowstone' injunction restraining landlord from terminating tenant's leasehold interest. The court denied tenant's motion, holding that because tenant's motion was not made until after the lease's 20-day cure period had expired, tenant was not entitled to a Yellowstone injunction.

The parties' commercial lease provides that upon receiving a notice of default from landlord, tenant has 20 days to cure the default. Upon tenant's failure to cure within the 20-day period, landlord may terminate the lease on five days' notice. On March 1, 2007, landlord sent tenant a notice to cure based on excessive noise that manifested itself in 'stamping' sounds. Tenant did not seek a Yellowstone injunction during the 20-day cure period. When landlord then served a five-day notice of termination, tenant moved for a Yellowstone injunction.

In denying the relief, the court noted that there is no basis for a Yellowstone injunction after expiration of the cure period or after service of the notice of termination. The purpose of the Yellowstone injunction is to 'toll' the cure period until after a determination of the merits of landlord's claim. But once the cure period has expired, there is nothing to toll. The court rejected tenant's argument that the notice to cure was ambiguous, emphasizing that the notice referred to the lease provision creating the 20-day cure period.

Lease Residential; No Yellowstone Relief Available

OQ Partners LLC v. Izzo

NYLJ 7/18/07, p. 20, col. 1

Supreme Ct., Nassau Cty

(Austin, J.)

On tenant's motion for a 'Yellowstone' injunction, landlord moved for summary judgment dismissing the complaint. The court denied the Yellowstone injunction because it concluded that the subject lease was residential, not commercial.

Decedent owned a parcel with three houses and a cottage. Decedent's executor leased one of the houses to a partnership for use by the managing partner as a residence. The lease prohibited alterations without landlord's written permission. Landlord-executor sent the partnership a notice requesting that they cure alleged breaches of the lease ' including painting of kitchen cabinets and performing electrical work. Landlord later extended the cure period. Rather than curing the breaches, tenant moved for a Yellowstone injunction to toll the cure period so that tenant could challenge the alleged breaches without risking eviction if a court were to conclude that tenant had, in fact, breached.

In denying the Yellowstone injunction, the court first held that Yellowstone relief is not available to a residential tenant. The court then concluded that the lease in this case was residential, even though the lease was executed tot he partnership. The court emphasized that there was no evidence that the managing partner had used the premises for any commercial purpose.