East 4th Street Garage, Inc. v. L.B. Management Co.

Appellate Division of the Supreme Court of New York

East 4th Street Garage, Inc. v. L.B. Management Co.

172 A.D.2d 292, 568 N.Y.S.2d 111, 1991 N.Y. App. Div. LEXIS 4757

Appellate Division of the Supreme Court of the State of New York·Decided April 16, 1991·Published·Cited by 3 cases

Opinion

Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered July 11, 1990, which granted the plaintiff’s motion for a preliminary injunction enjoining defendant from, inter alia, terminating the lease, unanimously affirmed, with costs.

The IAS court properly granted injunctive relief, whether measured under the test for a Yellowstone injunction (Stuart v D & D Assocs., 160 AD2d 547) or measured under the traditional test for a preliminary injunction (Rosenthal v Mahler, 141 AD2d 625). A termination clause in a lease does not result in automatic termination if it requires some action on the part of the landlord (Perrotta v Western Regional Off-Track Betting Corp., 98 AD2d 1). Long-standing acceptance of late payment of rent can constitute waiver by the landlord of the right to enforce strictly a deadline for payment of rent (61 E. 72nd St. Corp. v Zimberg, 161 AD2d 542). The agreement [293] provides for notice to be given by the landlord, and a notice of default sent in the attorney’s name is ineffective where the attorney was not named as agent in the agreement (Film-trucks, Inc. v Express Indus. & Term. Corp., 127 AD2d 509). Although none of these issues can be determined as a matter of law at this time, the plaintiff has shown a likelihood of success on the merits on each of them. Concur—Sullivan, J. P., Wallach, Asch and Smith, JJ.

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Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered July 11, 1990, which granted the plaintiff’s motion for a preliminary injunction enjoining defendant from, inter alia, terminating the lease, unanimously affirmed, with costs.

The IAS court properly granted injunctive relief, whether measured under the test for a Yellowstone injunction (Stuart v D & D Assocs., 160 AD2d 547) or measured under the traditional test for a preliminary injunction (Rosenthal v Mahler, 141 AD2d 625). A termination clause in a lease does not result in automatic termination if it requires some action on the part of the landlord (Perrotta v Western Regional Off-Track Betting Corp., 98 AD2d 1). Long-standing acceptance of late payment of rent can constitute waiver by the landlord of the right to enforce strictly a deadline for payment of rent (61 E. 72nd St. Corp. v Zimberg, 161 AD2d 542). The agreement [293] provides for notice to be given by the landlord, and a notice of default sent in the attorney’s name is ineffective where the attorney was not named as agent in the agreement (Film-trucks, Inc. v Express Indus. & Term. Corp., 127 AD2d 509). Although none of these issues can be determined as a matter of law at this time, the plaintiff has shown a likelihood of success on the merits on each of them. Concur—Sullivan, J. P., Wallach, Asch and Smith, JJ.

East 4th Street Garage, Inc. v. L.B. Management Co., 172 A.D.2d 292, 568 N.Y.S.2d 111, 1991 N.Y. App. Div. LEXIS 4757 (N.Y. Ct. App. 1991).

Pincite

172 A.D.2d 292 (East 4th Street Garage, Inc. v. L.B. Management Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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