Singh v Naraine

[*1] Singh v Naraine 2006 NY Slip Op 51149(U) [12 Misc 3d 1172(A)] Decided on June 22, 2006 Supreme Court, Kings County Kramer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 22, 2006
Supreme Court, Kings County

Ajmer Singh and Best I & C Corp., Plaintiff,

against

Babita Naraine, Defendant.



15788/04

Herbert Kramer, J.

Plaintiff tenant who runs an automobile repair shop on the demised premises timely seeks a preliminary injunction pursuant to First Natl. Stores v. Yellowstone Shopping Center, 21 NY2d 630(1968), to enjoin the landlord who served a ten day notice to cure from terminating the lease. The notice to cure recites that the plaintiff has violated the certificate of occupancy by using the premises as an automobile repair shop. The certificate of occupancy was issued in 1926. It authorizes the use of the premises as a "public garage." Plaintiff's lease with the previous owner designates the demised premises as an automobile repair shop.

"A tenant seeking Yellowstone relief must demonstrate: (1) it holds a commercial lease; (2) it has received from the landlord a notice of default, a notice to cure, or a threat of termination of the lease; (3) the application for a temporary restraining order was made prior to the termination of the lease; and (4) it has the desire and ability to cure the alleged default by any means short of vacating the premises'." Purdue Pharma v Ardsley Partners, 5 AD3d 654 (2d Dept. 2004).

Here, the first three prerequisites are satisfied and as to the fourth, the question is whether the tenant may cure the default by amending the certificate of occupancy. Plaintiff states that he is prepared to do just that at his own expense and at whatever cost and has hired a named architect to examine and investigate the validity of the certificate of occupancy.

Apparently confronted with a similar set of circumstances, the First Department held that [*2]the plaintiff should have been granted a Yellowstone injunction because he "timely commenced taking the necessary steps to obtain an amendment of the certificate to occupancy by contacting an expediter to assist in processing the application to the Department of Buildings . . ." Manhattan Parking System Service Corp v. Murray House Owners Corp., 211 AD2d 534,535 (lst Dept. 1995). There is no reason to depart from this holding here, particularly since it is not at all clear that the plaintiff's use of the premises has violated the certificate of occupancy. Plaintiff plausibly suggests that in 1926 the term "public garage" referred to an automobile service station and indeed we have found cases discussing events of earlier eras and using the term in just this way. See e.g. ,Thorp v. Pittsburgh Bicentennial Ass'n, 22 Misc 2d 233 (Sup. Court, NY County, 1960)( (1922 contract for the purchase of premises intended for use as a "public garage" whose purpose was to include the sale of gasoline and oil and the performance of automotive repairs); Pete Lor, Inc., v. Haber, 39 AD2d 40, 42 (2d Dept. 1972)(1950 local zoning ordinance which defined "public garage" as a building used for the storage or repair of automobiles).

Accordingly the defendants are hereby enjoined from terminating or cancelling the plaintiff's leasehold interest for the reasons stated in the notice to cure described above until such time as the declaratory judgment action filed by the plaintiff in conjunction with this motion is fully decided.

This constitutes the decision and order of the Court.

J.S.C.