Gilmore v. 163-35 Ninth Avenue Corp.

Appellate Division of the Supreme Court of New York

Gilmore v. 163-35 Ninth Avenue Corp.

104 A.D.2d 356, 478 N.Y.S.2d 1021, 1984 N.Y. App. Div. LEXIS 19826

CourtAppellate Division of the Supreme Court of the State of New York

DecidedAugust 6, 1984

StatusPublished

Cited by2 cases

This text of 104 A.D.2d 356 (Gilmore v. 163-35 Ninth Avenue Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gilmore v. 163-35 Ninth Avenue Corp., 104 A.D.2d 356, 478 N.Y.S.2d 1021, 1984 N.Y. App. Div. LEXIS 19826 (N.Y. Ct. App. 1984).

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Opinion

— In an action for a declaratory judgment arising out of a dispute involving a residential lease, plaintiffs appeal from an order of the Supreme Court, Queens County (Cohen, J.), dated August 4,1983, which denied their motion for a Yellowstone preliminary injunction and vacated a temporary restraining order.

[357]*357Order affirmed, without costs or disbursements. The stay pending appeal granted by this court in an order dated October 20, 1983 shall be deemed vacated 15 days after service upon plaintiffs of a copy of the order to be made hereon, with notice of entry.

As in Brodsky v 163-35 Ninth Ave. Corp. (103 AD2d 105), this appeal involves the question of whether Special Term properly denied plaintiffs’ motion for a Yellowstone preliminary injunction' (First Nat. Stores v Yellowstone Shopping Center, 21 NY2d 630), in light of recently enacted subdivision 4 of RPAPL 753 (L 1982, ch 870, eff July 29, 1982). In the instant case, defendants (the landlord) served a notice to cure which provided that if the tenant did not cure a breach of the terms of the lease within 10 days, the tenancy would be terminated. As in Brodsky, the alleged breach involved a purportedly improper sublease or assignment. In order to toll the running of the cure period so as to avoid termination of the lease prior to an adjudication of the merits, plaintiffs commenced a declaratory judgment action in the Supreme Court and moved for a Yellowstone preliminary injunction barring the landlord from taking any action to evict or to terminate the tenancy. By order dated August 4, 1983, Special Term denied plaintiffs’ motion for a preliminary injunction and vacated a temporary restraining order contained in their order to show cause.

For the reasons set forth in Brodsky (supra), we conclude that the order appealed from should be affirmed (see Post v 120 East End Ave. Corp., 62 NY2d 19). Gibbons, J. P., Bracken, Brown and Niehoff, JJ., concur.

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— In an action for a declaratory judgment arising out of a dispute involving a residential lease, plaintiffs appeal from an order of the Supreme Court, Queens County (Cohen, J.), dated August 4,1983, which denied their motion for a Yellowstone preliminary injunction and vacated a temporary restraining order.

[357]*357Order affirmed, without costs or disbursements. The stay pending appeal granted by this court in an order dated October 20, 1983 shall be deemed vacated 15 days after service upon plaintiffs of a copy of the order to be made hereon, with notice of entry.

As in Brodsky v 163-35 Ninth Ave. Corp. (103 AD2d 105), this appeal involves the question of whether Special Term properly denied plaintiffs’ motion for a Yellowstone preliminary injunction' (First Nat. Stores v Yellowstone Shopping Center, 21 NY2d 630), in light of recently enacted subdivision 4 of RPAPL 753 (L 1982, ch 870, eff July 29, 1982). In the instant case, defendants (the landlord) served a notice to cure which provided that if the tenant did not cure a breach of the terms of the lease within 10 days, the tenancy would be terminated. As in Brodsky, the alleged breach involved a purportedly improper sublease or assignment. In order to toll the running of the cure period so as to avoid termination of the lease prior to an adjudication of the merits, plaintiffs commenced a declaratory judgment action in the Supreme Court and moved for a Yellowstone preliminary injunction barring the landlord from taking any action to evict or to terminate the tenancy. By order dated August 4, 1983, Special Term denied plaintiffs’ motion for a preliminary injunction and vacated a temporary restraining order contained in their order to show cause.

For the reasons set forth in Brodsky (supra), we conclude that the order appealed from should be affirmed (see Post v 120 East End Ave. Corp., 62 NY2d 19). Gibbons, J. P., Bracken, Brown and Niehoff, JJ., concur.

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104 A.D.2d 356, 478 N.Y.S.2d 1021, 1984 N.Y. App. Div. LEXIS 19826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilmore-v-163-35-ninth-avenue-corp-nyappdiv-1984.

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