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Current Developments in the Commercial Divisions of the
New York State Courts
Posted: June 11, 2016

Untimely Yellowstone Injunction Denied

On May 26, 2016, Justice Singh of the New York County Commercial Division issued a decision in Westside Radiology Associates, P.C. v. St. Luke’s-Roosevelt Hospital Center, 2016 NY Slip Op. 30970(U), denying a Yellowstone injunction as untimely, explaining:

It is well settled that there is no basis for relief provided by a Yellowstone injunction, where the injunction is sought after expiration of the period to cure and service of the notice of termination.

Here, it is undisputed that: a) paragraph 17 of the lease states that tenant has 30 days to cure any alleged default of the terms of the lease; b) landlord mailed a written notice of default and notice to.cure dated May 29, 2015; c) tenant received the notice on or before June 10, 2015; d) no Yellowstone injunction was sought by tenant to toll the cure period; e) landlord mailed a five-day notice of termination dated August 26, 2015, stating that landlord elected to cancel the lease, effective September 2, 2015; and t) on August 31, 2015, tenant commenced the instant action seeking injunctive relief pursuant to CPLR Article 63. Based upon the controlling legal authority, the Court finds that tenant’s failure to seek injunctive relief during the cure period is fatal and forecloses any opportunity for subsequent injunctive relief.

Plaintiff contends that a Yellowstone injunction is not applicable under the present circumstances. Tenant asserts that the default alleged . . . never occurred, so the alleged default was incapable of being cured.

. . .

In the instant case, the notice of default specifically alleged that tenant had violated the assignment provision of the lease. Accordingly, . . . tenant should have acted expeditiously to secure a Yellowstone injunction. The application is untimely now.

[Moreover], the lease has been terminated, and this Court has no authority to enjoin the landlord from cancelling the lease. Since there was no temporary restraining
order in place at the time the notice of cancellation was served, the notice was validly served, and the lease was terminated. Once the lease was terminated in accordance with its terms, the court lacked the power to revive it.

(Internal quotations and citations omitted).

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