KB Gallery, LLC v 875 W. 181 Owners Corp.

KB Gallery, LLC v 875 W. 181 Owners Corp. 2010 NY Slip Op 06697 [76 AD3d 909] September 23, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, October 27, 2010

KB Gallery, LLC, Appellant,
v
875 W. 181 Owners Corp., Respondent.

—[*1] The Dweck Law Firm, LLP, New York (H. P. Sean Dweck of counsel), for appellant.

Cantor, Epstein & Mazzola, LLP, New York (Gary Ehrlich of counsel), for respondent.

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered June 10, 2010, which denied plaintiff's application for Yellowstone relief, and vacated an order temporarily restraining defendant from terminating plaintiff's commercial lease, unanimously affirmed, with costs.

The motion court properly found that plaintiff did not timely seek Yellowstone relief (see First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630 [1968]), since plaintiff did not make its application until after the applicable cure period had expired and the notice of termination had been served (see 319 Smile Corp. v Forman Fifth, LLC, 37 AD3d 245, 245 [2007]; JH Parking Corp. v East 112th Realty Corp., 298 AD2d 258 [2002]). We reject plaintiff's contention that a Yellowstone application brought after the expiration of the applicable cure period will be deemed timely as long as it is made before the lease in question is actually terminated (see Korova Milk Bar of White Plains, Inc. v PRE Props., LLC, 70 AD3d 646, 647-648 [2010]).

We have considered plaintiff's other arguments and find them to be unpreserved and unavailing. Concur—Saxe, J.P., Friedman, Moskowitz, Freedman and RomÁn, JJ.