Surdeanu v 137 E. St., LLC
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Surdeanu v 137 E. St., LLC 2003 NY Slip Op 30259(U) April 11, 2003 Supreme Court, New York County Docket Number: 116029/02 Judge: Rosalyn H. Richter Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 24 ........................................................................ X I I I I AURELIAN Plaintiff, -against137 EAST DECISION AND ORDER Index No. 1 Motion Sequence No. 1 STREET, LLC, Defendant. I X ROSALYN RICHTER, J.S.C. In this action, plaintiff who is a commercial tenant running a barber shop, moves for a 7 Yellowstone injunction enjoining defendant landlord from taking any action to terminate plaintiffs lease, and tolling the time to cure the default alleged in the Notice to Cure dated June 26,2002.' In that notice, defendant claimed that plaintiffs unauthorized use of an unlicensed plumber, who allegedly turned off the gas to the building, violated lease provisions governing changes and alleged that plaintiffs acts caused alterations made to the subject premises. The Notice defendant to suffer financial damages of over $15,000 and that plaintiff had refused defendant's demand for reimbursement. The Notice gave plaintiff ten days to cure the above defaults. The party requesting a Yellowstone injunction must demonstrate that: (1) it holds a commercial lease; (2) it received a notice to cure from the landlord; (3) it requested injunctive relief prior to the termination of the lease; and (4)it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises. Pomeranz Shapiro v. 600 Third Avenue Associates, 93 Garage Corp. v. 221 E. Owners Corp., 211 420 Gra Mollen, Horowitz, 508 (1999); 225 East Street Dept. 1995). Defendant contends On October 10, 2002, Justice Helen E. Freedman issued a temporary restraining order granting the requested relief until this motion could be decided. [*2] that plaintiff has failed to show that he is willing and able to cure the alleged default in the event he does not However, in his affidavit, plaintiff states that he understands that the purpose of a Yellowstone injunction is to preserve the status quo so as to permit plaintiff an opportunity to effectuate an appropriate cure, and thus avoid forfeiture of the lease. In this case, the cure demanded in the notice requires plaintiff to pay the landlord the $15,000. In his affidavit, plaintiff states that he has been, and continues to be, timely on his rent payments, a statement undisputed by defendant. Thus, the Court concludes that plaintiff has made an adequate showing that he is prepared and maintains the ability to cure the alleged default. Defendant also argues that plaintiff has waived his right to bring this motion by virtue of a lease provision barring plaintiff seeking Yellowstone relief. The provision in question states that plaintiff “waives his right to bring a declaratory judgment action with respect to any provision of the lease, or with respect to any notice sent pursuant to the provisions of the lease, and expressly agrees not to seek injunctive relief which would stay, extend or otherwise toll any of the time limitations or provisions of this lease, or any notice sent pursuant The Court concludes that this provision is unenforceable as against public policy. Since plaintiff is a commercial tenant, he is not able to avail himself of the automatic ten day stay available to residential tenants in Civil Court under R.P.A.P.L. Thus, a Yellowstone injunction is the only way a commercial tenant, “when confronted by a threat of termination of its lease, may protect its investment in the leasehold by obtaining a stay tolling the cure period so that upon an adverse determination on the merits the tenant may cure the default and avoid a Graubard, Mollen, Horowitz, Pomeranz Shapiro v. 600 Third Avenue Associates, 93 See at 508. Moreover, the waiver provision here is not limited to Yellowstone injunctions; it would also 2 It is undisputed that plaintiff has established the first three requirements. [*3] prevent plaintiff from instituting any declaratory judgment action with respect to the lease. The Court concludes that such a wide ranging waiver of the right to use the court system to seek redress L.P. v. Absolute Greek, is unenforceable. See Sup. Ct. 186 170(Nassau Cty. unenforceable lease provision barring tenant from interposing counterclaims in plenary action). Accordingly it is ORDERED that plaintiffs motion for a Yellowstone injunction is granted; and it is further ORDERED that defendant, its attorneys, and all persons known and unknown acting on its behalf or in concert with it, in any manner or by any means, are enjoined and restrained, pending the hearing and determination of this action, from taking any action, including but not limited to the commencement of legal proceedings, to terminate the lease agreement for Store at 137 East 1 Street, based on the Notice to Cure dated June 26,2002, and it is ORDERED that the time to cure the alleged default set forth in that Notice is hereby tolled; and it is further ORDERED that this injunction is conditioned upon plaintiff posting an undertaking in the amount of $2,500, as well as payment by plaintiff of any past due rent and all future rent as it becomes due; and it is further ORDERED that the parties are to appear for a preliminary conference in Part 24 on May 7, 2003 at a.m. This constitutes the decision and order of the Court. April 11,2003 Justice Rosalyn Richter
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