259 E Broadway LLC v. 259 E. Broadway Assoc., LLC

259 E Broadway LLC v 259 E. Broadway Assoc., LLC (2023 NY Slip Op 50061(U)) [*1] 259 E Broadway LLC v 259 E. Broadway Assoc., LLC 2023 NY Slip Op 50061(U) [77 Misc 3d 1228(A)] Decided on January 25, 2023 Supreme Court, New York County Reed, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on January 25, 2023 Supreme Court, New York County 259 E Broadway LLC, Plaintiff, against 259 East Broadway Associates, LLC, Defendant. Index No. 654788/2022 Robert R. Reed, J. The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 18, 21 were read on this motion for INJUNCTION/RESTRAINING ORDER. In this commercial tenancy dispute, plaintiff moves, pursuant to CPLR 6301, for a preliminary injunction and a Yellowstone injunction to prevent defendant, landlord, from terminating its lease. The purpose of a Yellowstone injunction is to maintain the status quo so that a commercial tenant may protect its property interest in the lease while challenging the landlord's assessment of its rights (225 E. 36th St. Garage Corp. v 221 E. 36th Owners Corp., 211 AD2d 420, 421 [1st Dept 1995]). A tenant seeking Yellowstone relief must demonstrate that: (1) it holds a commercial lease, (2) it has received from the landlord a notice of default, notice to cure, or threat of termination of the lease, (3) its application for a temporary restraining order was made prior to expiration of the cure period and termination of the lease, and (4) it has the desire and ability to cure the alleged default by any means short of vacating the premises (225 E. 36th St. Garage Corp. v 221 E. 36th Owners Corp., 211 AD2d 420, 421 [1st Dept 1995]). Here, tenant challenged the sufficiency of the notice to cure, and manner of service. Tenant alleged that landlord failed to comply with article 82 of the lease, that required all notices to tenant be served in writing and delivered to a specific address (NYSCEF doc. no. 8, pg. 25). In opposition, Landlord concedes that the notice to cure was improperly served in accordance with the lease's notice provisions (NYSCEF doc. no. 21, para. 16). Except in circumstances where cure is impossible, where landlord fails to serve requisite notice to cure, the lease remains in effect and the tenancy cannot be terminated (2215-75 Cruger Apartments, Inc. v Stovel, 769 NYS2d 347 (1st Dept App. Term 2003). The notice, therefore, is a legal nullity and there is no justiciable controversy for this court to consider (Zwarycz v Marnia Const., Inc., 102 AD3d 774, 776 [2nd Dept 2013][a justiciable controversy must involve a present, rather than hypothetical, prejudice. The dispute must be real, definite, substantial, and sufficiently matured so as to be ripe for judicial determination]). Accordingly, it is hereby ORDERED that plaintiffs request for injunctive relief and a Yellowstone injunction is denied as moot. DATE 01/25/2023 ROBERT R. REED, J.S.C.