Commercial Division Blog

Posted: July 31, 2017 / Categories Commercial, Real Property, Injunctions Attachments and Other Preliminary Remedies

Fact Issues Do Not Preclude Issuance of a Yellowstone Injunction

On June 9, 2017, Justice Grays of the Queens County Commercial Division issued a decision in SBA Monarch Towers I, LLC. v. Hirakis, 2017 NY Slip Op. 31580(U), granting a Yellowstone injunction despite issues of fact regarding the merits, explaining:

The purpose of a Yellowstone injunction is to enable a tenant confronted by a notice of default, a notice to cure, or a threat of termination of the lease to obtain a stay tolling the running of the cure period so that, after a determination of the merits, the tenant may cure the defect and avoid a forfeiture of the leasehold. Having such a purpose, a Yellowstone injunction may issue even though the applicant has not made the usual tripartite showing for obtaining provisional relief. Whatever the merits of the case, the courts have routinely granted Yellowstone injunctions, and the plaintiff tenant is not required to show a probability of success on the merits. A Yellowstone injunction is intended only to preserve the status quo, and it may be granted without consideration of the merits of the case.

A tenant requesting a Yellowstone injunction must demonstrate that: (1) it holds a commercial lease, (2) it received from the landlord either a notice of default, a notice to cure, or a threat of termination of the lease, (3) it requested injunctive relief prior to the termination of the lease, and (4) it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises. The plaintiff herein has made an adequate showing of its entitlement to a Yellowstone injunction. Although factual issues may exist in this case, they do not in themselves preclude the issuance of a preliminary injunction.

(Internal quotations and citations omitted) (emphasis added).