| Hopp v Raimondi |
| 2008 NY Slip Op 04472 [51 AD3d 726] |
| May 13, 2008 |
| Appellate Division, Second Department |
| Susan I. Hopp, Appellant, v Michael Raimondi,Respondent. |
—[*1] Andrew M. Romano, Yonkers, N.Y. (Marc J. Bagan of counsel), for respondent.
In an action, inter alia, for a judgment declaring that the plaintiff has not violated the terms ofa residential lease, the plaintiff appeals from an order of the Supreme Court, Westchester County(Smith, J.), dated August 28, 2007, which denied her motion for a Yellowstoneinjunction (see First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630 [1968]).
Ordered that the order is reversed, on the law, with costs, the plaintiff's motion for aYellowstone injunction is granted, and the matter is remitted to the Supreme Court,Westchester County, to set an appropriate undertaking.
The plaintiff has resided in a rent-controlled apartment in Bronxville since 1967. When theplaintiff's building was converted to cooperative ownership in the mid-1980's, she did notpurchase the shares designated for her unit, and remained in residence as a rent-controlled tenant.In January 2003 the defendant purchased the shares and proprietary lease to the plaintiff'sapartment. A dispute subsequently arose between the parties as to whether the lease required theplaintiff to provide the defendant with the key to the lock on her apartment door, which theplaintiff claims is the same lock that was present when she moved in more than 40 years ago.
On or about June 29, 2007, the defendant served the plaintiff with a combined notice to cureand surrender possession, alleging that she had violated her lease by changing her lock andfailing to provide him with a key. Prior to the expiration of the cure period, the plaintiffcommenced this action seeking, inter alia, a judgment declaring that she had not violated theterms of the lease. Upon [*2]commencement of the action, theplaintiff also moved, by order to show cause, for a Yellowstone injunction (see FirstNatl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630 [1968]). After the Supreme Court(Nastasi, J.) refused to grant the plaintiff a temporary restraining order staying the defendant fromterminating her tenancy and tolling her time to cure the alleged default pending the hearing anddetermination of the motion, the requested temporary restraining order was granted by this Court.In the order appealed from, the Supreme Court (Smith, J.) subsequently denied the plaintiff'smotion for a Yellowstone injunction, concluding that such relief was available only tocommercial tenants, or to residential tenants who also own the shares designated for theircooperative units. We reverse.
The purpose of a Yellowstone injunction is to allow a tenant confronted by a threat oftermination of the lease to obtain a stay tolling the running of the cure period so that after adetermination on the merits, the tenant may cure the defect and avoid a forfeiture of the leasehold(see Graubard Mollen Horowitz Pomeranz & Shapiro v 600 Third Ave. Assoc., 93 NY2d508, 514 [1999]; Post v 120 E. End Ave. Corp., 62 NY2d 19 [1984]). AlthoughYellowstone injunctions are more commonly sought to protect a tenant's interest in acommercial lease (see Graubard Mollen Horowitz Pomeranz & Shapiro v 600 Third Ave.Assoc., 93 NY2d 508 [1999]), Yellowstone relief also has been granted to residentialtenants (see Post v 120 E. End Ave. Corp., 62 NY2d 19 [1984]; Kuttas v Condon,290 AD2d 492 [2002]; Cohn v White Oak Coop. Hous. Corp., 243 AD2d 440 [1997];Somekh v Ipswich House, 81 AD2d 662 [1981]; Wuertz v Cowne, 65 AD2d 528[1978]).
The 1982 enactment of RPAPL 753 (4), which affords a losing residential tenant a 10-dayperiod to cure lease violations before being subject to removal, has largely eliminated the needfor Yellowstone injunctions in New York City (see Post v 120 E. End Ave.Corp., 62 NY2d 19 [1984]; Brodsky v 163-35 Ninth Ave. Corp., 103 AD2d 105[1984]). However, since RPAPL 753 (4) applies only in New York City, elsewhere in the state"the only time available to a residential tenant within which a lease violation may be cured is thetime provided in the notice to cure" (Landmark Props. v Olivo, 10 Misc 3d 1, 2 [2005]).Thus, "[o]utside the City of New York, the only means to extend the time to cure is injunctiverelief . . . which relief must be sought within, and must operate to toll, the cureperiod provided by lease provision or predicate notice (depending on the type of tenancy at issue)before this period runs and the lease terminates. Otherwise, the courts are powerless torevive the expired lease" (id.).
Since the subject apartment is located outside of New York City and the plaintiff is thus notentitled to the protection of RPAPL 753 (4), the defendant's service upon her of the combinednotice to cure and surrender possession necessitated the commencement of this declaratoryjudgment action and the application for Yellowstone relief in order to toll the running ofthe cure period and avoid a forfeiture of her leasehold in the event of an adverse determination(see Kuttas v Condon, 290 AD2d 492 [2002]). Furthermore, contrary to the SupremeCourt's determination, neither the Court of Appeals' decision in Post v 120 E. End Ave.Corp. (62 NY2d 19 [1984]), nor our decision in Cohn v White Oak Coop. Hous.Corp. (243 AD2d 440 [1997]), limits the availability of Yellowstone injunctions onlyto those residential tenants who also own the shares designated for their cooperative units.Accordingly, the Supreme Court should have granted the plaintiff's motion for aYellowstone injunction in order to preserve the plaintiff's right to cure in the event it isdetermined that she violated the lease (see Post v 120 E. End Ave. Corp., 62 NY2d 19[1984]; Kuttas v Condon, 290 AD2d 492 [2002]; Cohn v White Oak Coop. Hous.Corp., 243 AD2d 440 [1997]; Somekh v Ipswich House, 81 AD2d 662 [1981];Wuertz v Cowne, 65 AD2d 528 [1978]). We thus grant the plaintiff's motion, and remitthe matter to the Supreme Court, Westchester County, to set an appropriate undertaking (seeMarathon Outdoor v Patent Constr. Sys. Div. of Harsco Corp., 306 AD2d 254 [2003];Cohn v White Oak Coop. Hous. Corp., [*3]243 AD2d440 [1997]; Sportsplex of Middletown v Catskill Regional Off-Track Betting Corp., 221AD2d 428 [1995]; Somekh v Ipswich House, 81 AD2d 662 [1981]). Lifson, J.P., Miller,Dillon and Eng, JJ., concur.