Barsky v. Sherman Sq. Realty Corp.

2025 NY Slip Op 30139(U)

• Court: New York Supreme Court, New York County
• Decided: January 13, 2025
• Docket: Index No. 651293/2024
• Status: Unpublished

Opinion

Barsky v Sherman Sq. Realty Corp. 2025 NY Slip Op 30139(U) January 13, 2025 Supreme Court, New York County Docket Number: Index No. 651293/2024 Judge: Lyle E. Frank Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 651293/2024 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 01/13/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART 11M Justice ---------------------------------------------------------------------------------X INDEX NO. 651293/2024 LEONA BARSKY MOTION DATE 12/17/2024 Plaintiff, MOTION SEQ. NO. 002 -v- SHERMAN SQUARE REALTY CORP., DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 73, 74, 75, 76, 77, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94 were read on this motion to/for INJUNCTION/RESTRAINING ORDER .

Upon the foregoing documents, plaintiff’s motion is granted.

Background

The underlying suit concerns Leona Barsky’s (“Plaintiff”) dispute with her co-op

Sherman Square Realty Corp. (“Defendant”) over alleged leaks, mold, and lack of heating in her

unit (the “Premises”). In an Order dated September 13, 2024, this Court granted a preliminary

injunction and found that “plaintiff would likely be entitled to full injunctive relief based on the

facts as this Court knows them at this time.” Then in early December 2024, Defendant sent

Plaintiff a notice of default (the “Default Notice”) stating that Plaintiff had failed to pay

maintenance, along with other charges such as late fees, steam trap violations, and the legal fees

that Defendant has occurred so far in this proceeding. The parties dispute the validity and amount

of the total fees allegedly owed. Plaintiff argues that they have withheld maintenance because

they are owed a rent abatement under the terms of the proprietary lease due to the habitability

issues, and Defendant argues that the proprietary lease does not allow for withholding

maintenance fees in this circumstance. 651293/2024 BARSKY, LEONA vs. SHERMAN SQUARE REALTY CORP. Page 1 of 4 Motion No. 002

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Plaintiff brings the present motion seeking a Yellowstone order temporarily staying

Defendant from holding her in default of the proprietary lease agreement (the “Lease”) in

connection with unpaid maintenance fees or taking any action to enforce such a default during

the pendency of this proceeding. Defendants oppose, arguing that that there is “no real risk to

Plaintiff” because she could cure her default under RPAPL § 753(4), that the period to cure

under the Default Notice had expired when the present motion was brought, and that the proper

forum for this dispute is Housing Court.

Standard

A Yellowstone injunction requires that the moving party make a showing 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 the 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.” Graubard Mollen Horowitz Pomeranz &

Shapiro v. 600 Third Ave. Assocs., 93 N.Y.2d 508, 514 (1999). A Yellowstone injunction can be

issued to stay termination of a residential proprietary lease, particularly when RPAPL § 753(4) is

not available. Stolz v. 111 Tenants Corp., 3 A.D.3d 421, 422 (1st Dept. 2004).

Discussion

For the reasons that follow, Plaintiff has met their burden for a Yellowstone injunction.

The Present Motion Was Timely Brought

According to the Default Notice, the expiration of the cure period was December 17,

2024. Plaintiff brought the present motion on December 17, 2024. Defendants argue that this

makes the present motion untimely, and Plaintiff contends that they requested injunctive relief

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prior to the termination of the lease and within the cure period. Here, Plaintiff sought injunctive

relief within the period given in the Default Notice, and the present motion is timely.

RPAPL § 753(4) is not Available Here

Defendant argues that there is no real risk to Plaintiff, because RPAPL § 753(4) would

allow Plaintiff to cure a default after an adverse court decision and therefore a Yellowstone

injunction is not needed. But risk to the moving party is not a factor in a Yellowstone injunction

analysis. Furthermore, when risk is considered, such as a request for a preliminary injunction,

eviction can satisfy the irreparable injury element. See Olcott v. 308 Owners Corp., 189 A.D.3d

687, 687 (1st Dept. 2020). This Court already found that the threatened termination of Plaintiff’s

lease satisfies this element of a preliminary injunction request in the September 13 Order, and

conditions have not changed the risk of harm to Plaintiff attendant on the termination of the

proprietary lease. Furthermore, RPAPL § 753(4) is a form of protection to tenants given after

there is a final judgment of possession, and here there has been no such judgment.

Plaintiff Has Satisfied the Yellowstone Injunction Requirements

As discussed above, Plaintiff satisfies the first three elements of a Yellowstone injunction.

The final requirement is that Plaintiff show that it is prepared and able to cure the alleged defect.

Here, Plaintiff has attested to that in her sworn affidavit. Additionally, Plaintiff agreed in an oral

hearing on January 13, 2024, to set aside the amount of maintenance due from June to December

2024 in escrow (an amount of $48,865.27) and to continue putting the monthly maintenance fees

in escrow pending resolution of these issues. Therefore, Plaintiff has shown an entitlement to the

requested relief. The Court has considered the Defendant’s other arguments and found them

unavailing. Accordingly, it is hereby

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ADJUDGED that plaintiff’s application seeking a Yellowstone injunction is granted; and

it is further

ORDERED that defendant, its affiliates, agents, attorneys, employees, and anyone acting

on its behalf or under its control are enjoined from taking further steps to terminate or purport to

terminate Plaintiff’s proprietary lease, commence a holdover summary proceeding, or otherwise

regain possession of the Premises; and it is further

ORDERED that defendant, its agents, attorneys, employees, and anyone action on its

behalf or under its control is enjoined from taking any steps to regain or wrongfully interfere

with Plaintiff’s possession of the Premises; and it is further

ORDERED that within 15 days of the date of this order, plaintiff shall deposit the sum of

$48,865.27 to be held in escrow pending the resolution of this proceeding; and it is further

ORDERED that during the pendency of this proceeding, beginning in January 2025,

plaintiff shall deposit the monthly maintenance fee into said escrow account on the date such

amount is due or within 7 days thereafter.

1/13/2025 DATE LYLE E. FRANK, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ □ X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

651293/2024 BARSKY, LEONA vs. SHERMAN SQUARE REALTY CORP. Page 4 of 4 Motion No. 002

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