Metropolis Westchester Lanes, Inc. v. Colonial Park Homes, Inc.

187 A.D.2d 492, 589 N.Y.S.2d 570, 1992 N.Y. App. Div. LEXIS 12776

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 1992
• Status: Published

Opinion

In an action for a judgment declaring the parties’ rights under a commercial lease, the defendant appeals from an order of the Supreme Court, Westchester County (Donovan, J.), entered October 26, 1990, which conditionally granted the plaintiffs motion for a preliminary injunction enjoining the owner from, inter alia, terminating the lease.

Ordered that the order is reversed, on the facts, with costs, and the motion is denied.

A leaseholder seeking a Yellowstone injunction (see, First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630) must demonstrate, inter alia, that it has the desire and ability to cure the alleged default by any means short of vacating the premises (see, Pergament Home Ctrs. v Net Realty Holding Trust, 171 AD2d 736; Suaraz v El Daro Realty, 156 AD2d 356; Heavy Cream v Kurtz, 146 AD2d 672). The tenant here concedes that because it plans to sublease and extensively renovate the entire premises, it therefore has no intention of investing money into the timely repair of the existing structure. In light of the tenant’s failure to make a good-faith showing of its willingness to cure the alleged defaults under the existing lease, the Yellowstone injunction should have been denied (see, Linmont Realty v Vitocarl, Inc., 147 AD2d 618; Cemco Rests. v Ten Park Ave. Tenants Corp., 135 AD2d 461). Thompson, J. P., Harwood, Balletta, Rosenblatt and Eiber, JJ., concur.