RD Branch Associates, L.P. v. Hook-Superx, Inc.

Appellate Division of the Supreme Court of New York

RD Branch Associates, L.P. v. Hook-Superx, Inc.

280 A.D.2d 460, 720 N.Y.S.2d 370, 2001 N.Y. App. Div. LEXIS 1192

Appellate Division of the Supreme Court of the State of New York·Decided February 5, 2001·Published

Opinion

—In an action, inter alia, for a judgment declaring that the defendant is prohibited from using its leased premises to operate a one-hour photo laboratory, the defendant appeals from an order of the Supreme Court, Suffolk County (Underwood, J.), dated February 23, 2000, which granted the plaintiff’s motion for a preliminary injunction and denied its cross motion for a Yellowstone injunction.

Ordered that the order is modified, on the law, by deleting the provision thereof denying the defendant’s cross motion for a Yellowstone injunction and substituting therefor a provision granting the cross motion; as so modified, the order is affirmed, without costs or disbursements.

Contrary to the defendant’s contention, the Supreme Court properly granted the plaintiff’s motion for a preliminary injunction barring it from operating a one-hour photo laboratory during the action. In support of its motion, the plaintiff sustained its burden of demonstrating a likelihood of success on the merits based on the language of the restrictive use clause in the parties’ lease (see, Dennis & Jimmy’s Food Corp. v Milton Co., 99 AD2d 477, affd 62 NY2d 613; see also, Mostazafan Found, v Rodeo Plaza Assocs., 151 AD2d 347; Anzalone v Normant Drugs, 136 Misc 2d 995). The plaintiff also established that it would suffer irreparable injury absent the issuance of the injunction, and that a balancing of the equities is in its favor (see, Forty-Seventh-Fifth Co. v Nektalov, 225 AD2d 343; Mostazafan Found, v Rodeo Plaza Assocs., supra; Anzalone v Normant Drugs, supra).

However, the Supreme Court should have granted the defendant’s cross motion for a Yellowstone injunction tolling the 30-day cure period under the lease and allowing it an opportunity to cure the alleged default if the court renders a final determination on the merits that its operation of the one-hour photo laboratory is a violation of the lease (see, First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630; Graubard Mollen Horowitz Pomeranz & Shapiro v 600 Third Ave. Assocs., 93 NY2d 508; Waldbaum, Inc. v Fifth Ave. of Long Is. Realty Assocs., 85 NY2d 600; Terosal Props. v Bellino, 257 [461] AD2d 568). O’Brien, J. P., Krausman, Florio and Luciano, JJ., concur.

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—In an action, inter alia, for a judgment declaring that the defendant is prohibited from using its leased premises to operate a one-hour photo laboratory, the defendant appeals from an order of the Supreme Court, Suffolk County (Underwood, J.), dated February 23, 2000, which granted the plaintiff’s motion for a preliminary injunction and denied its cross motion for a Yellowstone injunction.

Ordered that the order is modified, on the law, by deleting the provision thereof denying the defendant’s cross motion for a Yellowstone injunction and substituting therefor a provision granting the cross motion; as so modified, the order is affirmed, without costs or disbursements.

Contrary to the defendant’s contention, the Supreme Court properly granted the plaintiff’s motion for a preliminary injunction barring it from operating a one-hour photo laboratory during the action. In support of its motion, the plaintiff sustained its burden of demonstrating a likelihood of success on the merits based on the language of the restrictive use clause in the parties’ lease (see, Dennis & Jimmy’s Food Corp. v Milton Co., 99 AD2d 477, affd 62 NY2d 613; see also, Mostazafan Found, v Rodeo Plaza Assocs., 151 AD2d 347; Anzalone v Normant Drugs, 136 Misc 2d 995). The plaintiff also established that it would suffer irreparable injury absent the issuance of the injunction, and that a balancing of the equities is in its favor (see, Forty-Seventh-Fifth Co. v Nektalov, 225 AD2d 343; Mostazafan Found, v Rodeo Plaza Assocs., supra; Anzalone v Normant Drugs, supra).

However, the Supreme Court should have granted the defendant’s cross motion for a Yellowstone injunction tolling the 30-day cure period under the lease and allowing it an opportunity to cure the alleged default if the court renders a final determination on the merits that its operation of the one-hour photo laboratory is a violation of the lease (see, First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630; Graubard Mollen Horowitz Pomeranz & Shapiro v 600 Third Ave. Assocs., 93 NY2d 508; Waldbaum, Inc. v Fifth Ave. of Long Is. Realty Assocs., 85 NY2d 600; Terosal Props. v Bellino, 257 [461] AD2d 568). O’Brien, J. P., Krausman, Florio and Luciano, JJ., concur.

RD Branch Associates, L.P. v. Hook-Superx, Inc., 280 A.D.2d 460, 720 N.Y.S.2d 370, 2001 N.Y. App. Div. LEXIS 1192 (N.Y. Ct. App. 2001).

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280 A.D.2d 460 (RD Branch Associates, L.P. v. Hook-Superx, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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