John A. Reisenbach Charter School v. Wolfson

298 A.D.2d 224, 748 N.Y.S.2d 247, 2002 N.Y. App. Div. LEXIS 9726

Opinion

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered May 30, 2002, which, inter alia, granted plaintiff’s motion for a preliminary Yellowstone injunction, conditioned on the posting of an undertaking in the amount of $18,820 within 15 days, unanimously affirmed, without costs.

The court properly declined to require plaintiff commercial tenant as a condition of Yellowstone relief immediately to discharge or bond the entire lien upon the demised premises. The purpose of the Yellowstone injunction in the present context — to maintain the status quo so as to afford plaintiff the opportunity to litigate the issue of whether its failure to discharge the subject lien constitutes a default under its lease — would be defeated if plaintiff were effectively required first to cure the alleged default (see Graubard Molten Horowitz Pomeranz & Shapiro v 600 Third Ave. Assoc., 93 NY2d 508).

Given the value of the improvements to the demised premises made at plaintiff’s expense, the court properly determined that the amount of the undertaking should be set at 10% of the lien. Indeed, in view of the considerable value of the improvements ($2,000,000), an undertaking might have been dispensed with entirely (see Kuo Po Trading Co. v Tsung Tsin Assn., 273 AD2d 111). Concur — Andrias, J.P., Rosenberger, Marlow and Gonzalez, JJ.