C C Vending, Inc. v Berkeley Educ. Servs. of N.Y., Inc.

CC Vending, Inc. v Berkeley Educ. Servs. of N.Y., Inc. 2010 NY Slip Op 05267 [74 AD3d 559] June 15, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2010

CC Vending, Inc., Appellant,
v
Berkeley Educational Services of New York, Inc., Respondent.

—[*1] Ernest H. Hammer, New York, for appellant.

Kavanagh Maloney & Osnato LLP, New York (David F. Bayne of counsel), for respondent.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered March 8, 2010, which denied plaintiff's motion for a Yellowstone injunction and a preliminary injunction and granted defendant's cross motion to stay arbitration, unanimously affirmed, without costs.

Plaintiff has failed to show entitlement to a Yellowstone injunction. It is well settled that "[t]he purpose of a Yellowstone injunction is to allow a tenant confronted by a threat of termination of the lease to obtain a stay tolling the running of the cure period so that, after a determination of the merits, the tenant may cure the defect and avoid a forfeiture of the leasehold" (Empire State Bldg. Assoc. v Trump Empire State Partners, 245 AD2d 225, 227 [1997]). A party seeking such an injunction must demonstrate that it holds a commercial lease; that it received from the landlord either a notice of default, a notice to cure or a threat of termination of the lease; that it requested injunctive relief prior to termination of the lease; and that it is prepared and has the ability to cure the alleged default by any means short of vacating the premises (Graubard Mollen Horowitz Pomeranz & Shapiro v 600 Third Ave. Assoc., 93 NY2d 508, 514 [1999]).

The contract at issue gives plaintiff an exclusive right to operate various concessions. Because "such exclusive right is not a lease," plaintiff was not a commercial lessee but rather "a licensee or concessionaire without interest in the realty" (Senrow Concessions v Shelton Props., 10 NY2d 320, 325 [1961]). Since plaintiff has no control over defendant's premises where the vending machines are located, it has no tangible interest in the property, and thus no right to a Yellowstone injunction.

To establish grounds for a preliminary injunction, a party must demonstrate "probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor" (Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]). Plaintiff's moving papers are devoid of any such showing. Moreover, plaintiff could be made whole by monetary damages (see Somers Assoc. v Corvino, 156 AD2d 218 [1989]).

Plaintiff waived the right to arbitrate its breach-of-contract claims by seeking a declaratory judgment on whether the agreement had been breached (Sherrill v Grayco Bldrs., 99 AD2d 965 [1984], affd 64 NY2d 261 [1985]). Concur—Mazzarelli, J.P., Moskowitz, DeGrasse, Abdus-Salaam and Manzanet-Daniels, JJ. [*2]