Becker Parkin Dental Supply Co. v. 450 Westside Partners, L. L. C.

284 A.D.2d 112, 725 N.Y.S.2d 547, 2001 N.Y. App. Div. LEXIS 5657

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 5, 2001
• Status: Published

Opinion

—Order, Supreme Court, New York County (Barbara Kapnick, J.), entered November 28, 2000, which granted plaintiff tenant’s motion for a Yellowstone injunction, unanimously affirmed, with costs.

We reject defendant landlord’s argument that the tenant is not entitled to a Yellowstone injunction because it did not make the instant application therefor until after its time to cure had expired and the lease was terminated. The defaults described in the landlord’s notice to cure are such as not to be capable of complete cure within the time provided in the notice, even as extended by the parties’ subsequent agreements. Under these circumstances, all that the lease terms require from the tenant is commencement of diligent efforts to cure the defaults within the allotted time (see, Long Is. Gynecological Servs. v 1103 Stewart Ave. Assocs. Ltd. Partnership, 224 AD2d 591; VB Mgt. v AD 1619 Co., 256 AD2d 84, lv denied 93 NY2d 810). The record shows that plaintiff complied with this obligation by, among other things, retaining architects, engineers and contractors and submitting plans to the landlord for approval. We have considered defendant’s other arguments and find them unavailing. Concur — Sullivan, P. J., Rosenberger, Ellerin, Wallach and Marlow, JJ.