| KB Gallery, LLC v 875 W. 181 Owners Corp. |
| 2010 NY Slip Op 06697 [76 AD3d 909] |
| September 23, 2010 |
| Appellate Division, First Department |
| KB Gallery, LLC, Appellant, v 875 W. 181 Owners Corp.,Respondent. |
—[*1] Cantor, Epstein & Mazzola, LLP, New York (Gary Ehrlich of counsel), forrespondent.
Order, Supreme Court, New York County (Bernard J. Fried, J.), entered June 10, 2010,which denied plaintiff's application for Yellowstone relief, and vacated an ordertemporarily restraining defendant from terminating plaintiff's commercial lease, unanimouslyaffirmed, with costs.
The motion court properly found that plaintiff did not timely seek Yellowstone relief(see First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630 [1968]), since plaintiffdid not make its application until after the applicable cure period had expired and the notice oftermination had been served (see 319Smile Corp. v Forman Fifth, LLC, 37 AD3d 245, 245 [2007]; JH Parking Corp. vEast 112th Realty Corp., 298 AD2d 258 [2002]). We reject plaintiff's contention that aYellowstone application brought after the expiration of the applicable cure period will bedeemed timely as long as it is made before the lease in question is actually terminated (see Korova Milk Bar of White Plains, Inc.v PRE Props., LLC, 70 AD3d 646, 647-648 [2010]).
We have considered plaintiff's other arguments and find them to be unpreserved andunavailing. Concur—Saxe, J.P., Friedman, Moskowitz, Freedman and RomÁn, JJ.