Stix Rest. Group, LLC v Christos Realty Inc.

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Stix Rest. Group, LLC v Christos Realty Inc. 2013 NY Slip Op 32228(U) September 16, 2013 Supreme Court, New York County Docket Number: 156833/2013 Judge: Cynthia S. Kern Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 09/17/2013 1] INDEX NO. 156833/2013 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 09/17/2013 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY CYNTH,,, y. KERN PRESENT: PART5S J.SJ(Jstice L56 3'?:6J 13 INDEX NO. MOTION DATE - V - I MOTION SEQ. NO. MOTION CAL. NO. The following papers, numbered 1 to _ _ were read on this motion to!for _ _ _ _ _ _ __ PAPERS NUMBERED Notice of Motion! Order to Show Cause Answering Affidavits - Affidavits - Exhibits ... Exhibits - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ « Cross-Motion: (J) 2: o (J) eYes 0 No w ce (!] Upon the foregoing papers, it is ordered that this motion W2: (J- -3: ~o (J)...J :::::>...J "'0 Ou.. ~w c::I: w~ cece ceo .' 'th the annexed decIsion ... is decided in accordance w! ,I' ~u.. w ce ~. > ...J ...J :::::> u.. ~ (J w Il. (J) w ce (J) w (J) « (J -... 2: o ~ o Dated: _--1....4--'-!.I-=--' -'--Ih.....c.-2_ _ CYNTHIA~. 2 Check one: D FINAL DISPOSITION Check if appropriate: o ~ P DO NOT POST Kt:,\,-. J.S.C. .-J.S.C. NON-FINAL DISPOSITION o REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 55 ------------------------------------------------------------------){ STIX RESTAURANT GROUP, LLC, Plaintiff, Inde){ No. 156833/2013 -againstCHRISTOS REALTY INC., Defendant. ------------------------------------------------------------------){ HON. CYNTHIA KERN, J.S.c. Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for: -------------------------------------Papers Notice of Motion and Affidavits Anne){ed ................................... . Answering Affidavits and Cross Motion ..................................... . Replying Affidavits ..................................................................... . E){hibits ..................................................................................... . Numbered " 2 3 Plaintiff tenant Sti){ Restaurant Group LLC ("Sti){") has brought the present motion by ! . order to show cause for a Yellowstone injunction. Defendant Christos Realty Inc. ("Christos") has brought a cross- motion to dismiss the complaint. For the reasons set forth more fully below, plaintiffs motion is conditionally granted as follows and defendant's cross-motion to dismiss is denied. The relevant facts are as follows. Sti){ is the tenant of the ground poor and basement space located at 112 East 23 rd Street (the "Premises"). In or about May 2012, it entered into a commercial lease agreement with Christos for a ten year term for the Premises ("the "Lease"). On or about June 27,2013, Frank Parlarrnis, Inc. filed a mechanic's lien against the building for [* 3] work done by it while under plaintiffs employ. On or about July 16,2013, Christos served Stix I with its ten day notice of default. The notice alleges that plaintiff is in default of the Lease in that 'I J it has failed to provide defendant with certificates of final approval for the alterations to the Premises that it had undertaken and that it has caused the mechanic's lien of Frank Parlarmis, Inc. to be filed against the building. The notice states that the owner wilt elect to terminate the lease if the defaults by plaintiff are not cured within ten days. Plaintiff alleges in its moving papers that it has provided defendant with the certificates of final completion and that it agreed in principle with Frank Parlarmis, Inc. to resolve the lien issue. It also alleged that if it could not reach an agreement regarding the mechanic's lien, it could provide a bond for the lien but needed 1 ., additional time to secure the bond. In between the time that it brought th,e present motion and the , return date of the order to show cause, it brought a separate action to cancel the mechanic's lien issued by Frank Pariarmis, Inc. ; Defendant has brought a cross-motion to dismiss the complaint on the ground that , plaintiff has not made any effort to payor bond the outstanding mechanic's lien. It points to the i " provision in the Lease which states that any lien filed against the building must be discharged by plaintiff via payment or bond. It alleges that plaintiff has failed to demot;J.strate its willingness to cure the mechanic's lien default because it has not bonded or paid the mechanic's lien. The purpose of a Yellowstone injunction is to extend the cure period, thereby preserving i the lease until the merits of the dispute can be resolved. See Graubard Mollen Horowitz Pomeranz & Shapiro v 600 Third Ave. Assocs., 93 N.Y.2d 508, 514 (19~9). "The party requesting a Yellowstone injunction must demonstrate that: (1) it holds acommercial lease; (2) it a received from the landlord either a notice of default, a notice to cure, or threat of termination of 2 I ,! , I , [* 4] the lease; (3) it requested injunctive relief prior to the termination of the l~ase; anq (4) it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises." See id. In the instant case, it is undisputed that plaintiff holds a commercial lease, that it received a notice to cure from the landlord and that it requested inj,unctive relief prior to the termination of the lease. This court finds that it can only establish the fourth required element, the ability to cure the default, by bonding the mechanic's lien bl!t that it should be given an opportunity to do so. Therefore, the motion for a Yellowstone injunction is granted on the condition that plaintiff bond the mechanic's lien within three weeks from the date of this decision. To the extent that defendant raised the argument at the return date of this motion that the Lease bars the tenant from obtaining a Yellowstone injunction from the court, the court will not consider this argument as it is not raised in defendant's cross-motion to dismiss or in any of its papers submitted on this motion. Accordingly, it is hereby J ORDERED that plaintiffs motion for a Yellowstone injunction is granted; pending the determination of this action, the operation and effect of defendant's notice dated July 10,2013 is tolled and defendant is enjoined and stayed from taking any further steps, or actions of any kind to (1) recover possession of the leased premises or (2) cancel or terminate the lease based upon the notice dated July 10, 2013 and defendant is prohibited from serving any notices of default, cancellation and/or termination based upon the same alleged defaults under the lease on the condition that plaintiff bond the mechanic's lien within three weeks of the date of this decision. and it is further ORDERED that plaintiffs bonding the mechanic's lien within three weeks of the date of this decision is a condition of the granting and continuation of this Yellowstone injunction. 3 [* 5] This constitutes the decision, order and judgment of the court. Enter: -~-l.-e-I-~--=::I...-_ __ J.S.C. 4

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