Opinion
2019–05166 Index No. 715406/18
07-29-2020
GOOD FORTUNE RESTAURANT, INC., appellant, v. KISSENA GROUP, LLC, respondent.
Leon I. Behar, P.C., New York NY, for appellant. Kaplan & Chun, P.C., New York, N.Y. (Howard C. Chun of counsel), for respondent.
Leon I. Behar, P.C., New York NY, for appellant.
Kaplan & Chun, P.C., New York, N.Y. (Howard C. Chun of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., RUTH C. BALKIN, CHERYL E. CHAMBERS, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action for declaratory and related injunctive relief, the plaintiff appeals from an order of the Supreme Court, Queens County (Leslie J. Purificacion, J.), entered May 20, 2019. The order denied the plaintiff's motion for a Yellowstone injunction (see First Natl. Stores v. Yellowstone Shopping Ctr., 21 N.Y.2d 630, 290 N.Y.S.2d 721, 237 N.E.2d 868 ).
ORDERED that the order is affirmed, with costs.
The plaintiff, a commercial tenant, commenced this action for declaratory and injunctive relief against the defendant and simultaneously moved for a Yellowstone injunction (see First Natl. Stores v. Yellowstone Shopping Ctr., 21 N.Y.2d 630, 290 N.Y.S.2d 721, 237 N.E.2d 868 ). The Supreme Court denied the plaintiff's motion. The plaintiff appeals.
"To obtain a Yellowstone injunction, the tenant must demonstrate that (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 both the termination of the lease and the expiration of the cure period set forth in the lease and the landlord's notice to cure, and (4) it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises" ( Barsyl Supermarkets, Inc. v. Avenue P Assoc., LLC, 86 A.D.3d 545, 546, 928 N.Y.S.2d 45 ; see 146 Broadway Assoc., LLC v. Bridgeview at Broadway, LLC, 164 A.D.3d 1193, 1194–1195, 84 N.Y.S.3d 241 ). Here, the plaintiff failed to demonstrate that it was willing and able to cure its default (see id. ). The plaintiff's remaining contentions have no bearing on whether it is entitled to a Yellowstone injunction (see Linmont Realty v. Vitocarl, Inc., 147 A.D.2d 618, 620, 538 N.Y.S.2d 277 ).
Therefore, we agree with the Supreme Court's determination to deny the plaintiff's motion.
SCHEINKMAN, P.J., BALKIN, CHAMBERS and WOOTEN, JJ., concur.