109th & First Avenue Corp. v. 2113 First Avenue, LLC

Order, Supreme Court, New York County (Richard F. Braun, J.), entered December 4, 2007, which granted plaintiffs motion for a Yellowstone injunction, unanimously affirmed, with costs. The affidavits of plaintiffs principal and an engineer submitted in support of the motion, together with corroborative Department of Buildings records, indicate that plaintiff has made efforts, albeit slowly over a nine-year period, to comply with its lease obligation to obtain a certificate of occupancy for the car wash improvements that defendant made to the premises years before the commencement of the subject lease. It thus sufficiently appears that plaintiff, who allegedly purchased from defendant the “goodwill” of the car wash business and its fixtures at the time the lease was signed, and eventually, following several applications to the Department of Buildings, obtained alteration approvals in August 2007, has the requisite desire and ability to cure the alleged default (see Graubard Molten Horowitz Pomeranz & Shapiro v 600 Third Ave. Assoc., 93 NY2d 508, 514-515 [1999]; TSI W. 14, Inc. v Samson Assoc., LLC, 8 AD3d 51, 52-53 [2004]). We have considered defendant’s other arguments and find them unavailing. Concur—Tom, J.P., Williams, Catterson and Acosta, JJ.