McBride v Taranto

[*1] McBride v Taranto 2018 NY Slip Op 51077(U) Decided on July 9, 2018 Supreme Court, Suffolk County Quinlan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 9, 2018
Supreme Court, Suffolk County

Robert McBride and JANET ASMUSSEN, Plaintiff,

against

Renee Pecorelli Taranto and GARY PECORELLI, Defendants.



5659/2017



BILL IAN JUROW, ESQ.

Attorneys for Plaintiff

349 Cypress Drive

Mastic, NY 11951

McCARTHY & CARBONE, P.C.

Attorneys for Defendants

400 Townline Road, Suite 100

Hauppauge, NY 11788
Robert F. Quinlan, J.

Upon the following papers read on plaintiffs' motion for Yellowstone injunction (No.001) ; Order to Show Cause and supporting papers dated October 31, 2017 ; Answering Affidavits and supporting papers dated January 12, 2018 ; Replying Affirmation and supporting papers dated January 31, 2018 ; and Other (Plaintiffs' Memorandum of Law in support dated October 30, 2017 and Plaintiff's Reply Memorandum of Law dated January 13, 2018); and upon the following papers read on defendants' motion to vacate (#002) ; Order to Show Cause and supporting papers dated January 16, 2018 ; Answering Affirmation and supporting papers dated February 13, 2018 ; and Other [*2](Defendants' Memorandum of Law dated January 11, 2018 and Plaintiff's Memorandum of Law In Opposition dated February 13, 2018); it is,

ORDERED that the motion by plaintiffs Robert McBride and Janet Asmussen for a Yellowstone injunction (#001) and motion by defendants Renee Pecorelli Taranto and Gary Pecorelli for an order vacating the October 31, 2017 stay (#002), are consolidated for purposes of this determination; and it is further

ORDERED that the motion by plaintiffs Robert McBride and Janet Asmussen for a Yellowstone injunction (#001) is denied; and it is further

ORDERED that the temporary restraining order issued by the court on October 31, 2017 shall be vacated one month after service of this order with Notice of Entry upon plaintiffs; and it is further

ORDERED that the motion by defendants Renee Pecorelli Taranto and Gary Pecorelli for an order vacating the October 31, 2017 stay (#002) is denied as moot; and it is further

ORDERED that all attorneys for the parties are directed to appear in the court's Differentiated Case Management Part ("DCM") located in the Alan D. Oshrin Supreeme Court Building, One Court Street, Riverhead, for a preliminary conference on August 20, 2018 at 9:30 A.M. (see 22 NYCRR § 202.12).

PROCEDURAL HISTORY

This action was brought by plaintiffs Robert McBride and Janet Asmussen ("plaintiffs") by order to show cause on October 31, 2017. Plaintiffs sought a temporary restraining order pending a determination on their motion for issuance of a "Yellowstone injunction," (see First Nat. Stores, Inc. v Yellowstone Shopping Ctr., Inc., 21 NY2d 630 [1968]), to enjoin the termination of a residential lease concerning real property located at 25 Grand Avenue, Northport, Suffolk County, New York ("the premises") (Seq. #001). The court entered an order enjoining and restraining defendants Renee Pecorelli Taranto and Gary Pecorelli ("defendants") from acting on the "Thirty (30) Day Notice of Termination" dated September 25, 2017, from sending or serving any additional notices of termination, and prohibiting defendants from commencing proceedings to recover the premises from plaintiffs. Due to the alleged exigency of the circumstances a short return date for the hearing on the motion was set for November 15, 2017. That hearing was adjourned on consent by the parties to November 30, 2017 and then to January 18, 2018. On January 16, 2018 defendants moved by order to show cause for an order vacating the October 31, 2017 stay (Seq. #002).

BACKGROUND

Plaintiffs have been tenants at the premises since on or about May 5, 1996. Plaintiffs argue they repeatedly signed year to year leases with the owner of the premises, the late Frank A. Pecorelli, father of defendants. The only proof of these leases is a copy of one for the term May 6, 1996 through May 5, 1997 (plaintiffs' Exhibit "B" to the order to show cause) and a lease for the term June 1, 2002 through June 1, 2003 (defendants' Exhibit "A" on their order to show cause). On September 25, 2017 defendants, the now purported owners of the premises, had a "Thirty (30) Day Notice of Termination" served on plaintiffs. This notice stated:

PLEASE TAKE NOTICE, that you and all other persons occupying the subject premises are required to quit and vacate said premises on or before midnight October 31, 2017.You are in possession of the premises as a Month to Month Tenant whose lease expired on May [*3]31, 2005.PLEASE TAKE NOTICE that if you and all other persons fail to quite, vacate and surrender possession of the subject premises by October 31, 2017, the undersigned will thereafter commence Summary Proceedings pursuant to NYRPAP against you to regain Possession.

Rather than vacate the premises, plaintiffs brough their order to show cause (Mot. Seq. #001) seeking a Yellowstone injunction.

YELLOWSTONE INJUNCTION

Named after the Court of Appeals decision in First Natl. Stores v. Yellowstone Shopping Center, supra, a Yellowstone injunction's purpose is to maintain the status quo where a commercial tenant is confronted by a threat of termination of its lease. Its limited purpose is to allow a commercial tenant to 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 forfeiture (see Graubard Mollen Horowitz Pomeranz & Shapiro v. 600 Third Ave. Assocs., 93 NY2d 508 [1999]). To obtain the injunction a tenant must establish four elements: (1) it holds a commercial lease; (2) it received from the landlord either a notice of default, a notice to cure, or a threat of termination of the lease; (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 (Graubard Mollen Horowitz Pomeranz & Shapiro v. 600 Third Ave. Assocs., supra.; 159 MP Corp. v Redbridge Bedford, LLC, 160 AD3d 176 [2d Dept 2019]; Korova Milk Bar of White Plains, Inc. v PRE Props, LLC, 70 AD3d 646 [2d Dept 2010]).

Plaintiffs' counsel has failed to offer a single citation to support his sweeping pronouncement in his reply affirmation that "Yellowstone injunctions have been granted in 'Residential' tenancies in Suffolk County for over fifteen (15) years." Instead plaintiffs' counsel cites cases which are distinguishable from the facts of this case. Although each of those cases may refer to Yellowstone injunctions, none stands for the proposition that Yellowstone injunctions are routinely granted in actions involving residential leases.

Unlike plaintiffs' lease, two of the cases cited by plaintiffs involve Yellowstone injunctions issued to tenant-shareholders who hold a cooperative proprietary lease (see Post v 120 East End Ave. Corp., 62 NY2d 19 (1984); Cohn v White Oak Cooperative Housing Corp., 243 AD2d 440 [2d Dept 1997]); a number of cases cited by plaintiffs' counsel involve commercial, and not residential, leases (Ameurasia Int Corp. v Finch Realty Co., 90 AD2d 760 [1st Dept 1982] and Herzfeld & Stern v Ironwood Realty Corp., 102 AD2d 737 [1st Dept 1984]); and Finley v Park Ten Assoc., 83 AD2d 537 [1st Dept 1981] involves residential apartments used for commercial purposes; both Podolsky v Hoffman, 82 AD2d 762 [1st Dept 1981] and Wuertz v Cowne, 65 AD2d 528 [1st Dept 1978] involve residential tenants however both are distinguished since they were decided prior to the enactment of RPAPL Section 753(4)[FN1] , so they are of no current controlling value as to whether residential tenants outside of the City of New York are eligible for Yellowstone injunctions; and, unlike the present case, Wilen v Harridge House [*4]Associates, 94 AD2d 123 [1st Dept 1983] involves occupancy of the premises for both residential and commercial premises.

The cases cited in plaintiffs' Reply Memorandum of Law in opposition to defendant's order to show cause likewise do not stand for the proposition that Yellowstone relief is available to tenants on residential leases. While Gabai v 130 Diamond Street, LLC, 32 Misc 2d 1027(a) (Sup. Ct. Kings Co. 2011) contains sweeping language about Yellowstones and residential leases, that court ultimately declined to grant the injunction as plaintiff's application was untimely. Finally, while Yellowstone injunctions are mentioned in Kutlas v Condon, 290 AD2d 492 [2d Dept 1981], another case cited by plaintiffs' counsel in his Reply Memorandum of Law, that decision does not indicate if a Yellowstone injunction was granted or not, but rather focuses on attorneys' fees.

The court finds unpersuasive plaintiffs' submission of a 2011 article in the New York Real Estate Law Reporter Vol. 27, No. 9, as well as an undated post from the website of a New York City real estate attorney, annexed as Exhibits "E" and "F" to plaintiffs' counsel's reply affirmation, both of which cite the same cases as the court distinguished above. Instead, this court refers to the journal article authored by the Honorable Mark C. Dillon, Associate Justice of the Appellate Division of the Supreme Court, Second Judicial Department, entitled, The Extent to Which "Yellowstone Injunctions" Apply in Favor of Residential Tenants: Who Will See Red, Who Can Earn Green, and Who May Feel Blue?, 9 Cardozo Pub. L. Pol'y & Ethics J. 287 (2011). This article explains in great detail the types of injunctions, the development of Yellowstone injunctions since First National Stores, Inc. v Yellowstone, supra, and the expansion of Yellowstone injunctions to specific residential tenancies. While certain sweeping language found in a few appellate division and supreme court decisions may lead one to the conclusion that Yellowstone injunctions are available in all residential lease situations, Justice Dillon found "almost without exception, Yellowstone injunctions have not been granted in favor of purely residential tenants" (see 9 Cardozo Pub. L. Pol'y & Ethics J. at 353). Instead Yellowstone injunctions have been granted to residential tenants, under narrow circumstances, which are not present here.

Plaintiffs have failed to establish the first element for a Yellowstone injunction, that it held a commercial lease, nor have they set forth a single case involving a non-proprietary residential lease in an action outside of the City of New York, in which a Yellowstone injunction was granted (see OQ Partners, LLC v Izzo, 841 NYS2d 827 [Sup. Ct. Nassau Co. 2007]). Plaintiffs' application for a Yellowstone injunction is denied.

Additionally, since plaintiffs concede they did not have a lease with the signatory on the notice, Renee Pecorelli Taranto (see McBride Affidavit and Asmussen Affidavit at ¶3), and that their lease was "with Frank A. Pecorelli and not the two people listed in the Notice that the subject premises supposedly 'belong' to" (McBride and Asmussen Affidavits at ¶17) plaintiff is unable to establish the second element for a Yellowstone injunction: that it received notice from the landlord. Failure to establish this element would be a second independent basis to deny plaintiffs' application.

Finally, there was no basis for injunctive relief in this case as there was nothing to cure. The notice allegedly served by defendants was a statutory prerequisite to a holdover proceeding, rather than a notice of default and a notice to cure the default in a specified period of time [*5](RPAPL 232-b; cf. Top—All Varieties v. Raj Development Co.,151 AD2d 470 [2d Dept 1989] (landlord served statutory prerequisite to summary nonpayment proceeding).

This Court has considered plaintiffs' remaining contentions and finds them to be without merit.

Accordingly, based upon the papers submitted plaintiffs are not entitled to the injunctive relief sought.

Plaintiffs' motion (Seq. #001) is denied in its entirety and the temporary restraining order contained in the order to show cause is hereby vacated.

As the temporary restraining order has been vacated by the court, defendants' motion (Seq. #002) is denied as moot.

DATED: July 9, 2018

__________________

HON. ROBERT F. QUINLAN

J.S.C. Footnotes

Footnote 1:RPAPL §753(4) applies to summary eviction proceedings in the City of New York. It provides residential tenants with a 10-day period to cure lease violations before being subject to removal (see Post v 120 East End Ave. Corp., supra).