| Xiotis Rest. Corp. v LSS Leasing Ltd. Liab. Co. |
| 2008 NY Slip Op 02998 [50 AD3d 678] |
| April 1, 2008 |
| Appellate Division, Second Department |
| Xiotis Restaurant Corp., Respondent, v LSS LeasingLimited Liability Company, Appellant. |
—[*1] Nicholas H. Rozos, New York, N.Y., for respondent.
In an action, inter alia, for a judgment declaring the parties' rights under a lease, thedefendant appeals from an order of the Supreme Court, Queens County (Taylor, J.), datedNovember 22, 2006, which, among other things, granted the plaintiff's renewed motion for aYellowstone injunction (see First Natl. Stores v Yellowstone Shopping Ctr., 21NY2d 630 [1968]).
Ordered that the order is affirmed, with costs.
The purpose of a Yellowstone injunction (see First Natl. Stores v YellowstoneShopping Ctr., 21 NY2d 630 [1968]) is to allow a commercial tenant confronted by a threatof termination of a lease to obtain a stay tolling the running of the cure period so that, after adetermination of the merits of any action arising under the lease, the tenant may cure the defectand avoid a forfeiture of the leasehold (see Graubard Mollen Horowitz Pomeranz & Shapirov 600 Third Ave. Assoc., 93 NY2d 508, 514 [1999]; Hempstead Video, Inc. v 363 Rockaway Assoc., LLP, 38 AD3d838, 838-839 [2007]; Long Is. Gynecological Servs. v 1103 Stewart Ave. Assoc. Ltd.Partnership, 224 AD2d 591, 593 [1996]; Sportsplex of Middletown v Catskill RegionalOff-Track Betting Corp., 221 AD2d 428 [1995]). A tenant seeking Yellowstonerelief must demonstrate that: (1) it holds a commercial lease, (2) it has received from thelandlord a notice of default, (3) its application for a temporary restraining order was made priorto expiration of the cure period and termination of the lease, and (4) it has the desire and abilityto cure the alleged default by any means short of vacating the premises (see HempsteadVideo, Inc. v 363 Rockaway Assoc., LLP, 38 AD3d at 839; Mayfair Super Mkts. vSerota, 262 AD2d 461, [*2]461-462 [1999]).
The Supreme Court properly granted the plaintiff Yellowstone relief. Contrary to thedefendant's contention, under the circumstances, the cure period with respect to the notice to curedated June 3, 2005, which was tolled pursuant to a temporary restraining order granted to theplaintiff, did not expire before the plaintiff's renewed motion for a Yellowstoneinjunction was decided (cf. Mann Theatres Corp. of Cal. v Mid-Island Shopping Plaza Co.,94 AD2d 466, 476 [1983], affd 62 NY2d 930 [1984]; Prince Lbr. Co. v CMCMIC Holding Co., 253 AD2d 718 [1998]). Furthermore, contrary to the defendant'scontention, the plaintiff demonstrated that it has the desire and ability to cure the alleged defaultslisted in the notices to cure (see Gihon, LLC v 501 Second St., 306 AD2d 376 [2003];Lee v TT & PP Main St. Realty Corp., 286 AD2d 665, 666 [2001]; Terosal Props. vBellino, 257 AD2d 568, 569 [1999]). Mastro, J.P., Covello, Dickerson and Eng, JJ., concur.