Summary
In JT Queens Carwash Inc., v. 88-16 N. Boulevard, LLC, 101 AD3d 1089, 956 NYS2d 536 [2d Dept., 2012] the court held that the failure to maintain requisite insurance is an incurable default demanding a denial of a Yellowstone injunction. Frank Boswell the executive director of the plaintiff submitted an affidavit and stated that "First and foremost, BEDCO has in fact a comprehensive general liability policy in effect.
Summary of this case from Bushwick Econ. Dev. Corp. v. E.N.Y. Plaza LLCOpinion
2012-12-26
JT QUEENS CARWASH, INC., appellant, v. 88–16 NORTHERN BLVD., LLC, respondent.
Sperber Denenberg & Kahan, P.C., New York, N.Y. (Steven B. Sperber and Jacqueline Handel–Harbour of counsel), for appellant. Wagner Davis, P.C., New York, N.Y. (Daniel J. Schneider of counsel), for respondent.
Sperber Denenberg & Kahan, P.C., New York, N.Y. (Steven B. Sperber and Jacqueline Handel–Harbour of counsel), for appellant. Wagner Davis, P.C., New York, N.Y. (Daniel J. Schneider of counsel), for respondent.
PETER B. SKELOS, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.
In an action for declaratory and injunctive relief, the plaintiff appeals from an order of the Supreme Court, Queens County (Nahman, J.), entered February 22, 2012, which denied its motion, inter alia, for a Yellowstone injunction ( see First Nat'l Stores v. Yellowstone Shopping Ctr., 21 N.Y.2d 630, 290 N.Y.S.2d 721, 237 N.E.2d 868) enjoining the defendant from terminating its tenancy.
ORDERED that the order is affirmed, with costs.
The Supreme Court properly determined that the plaintiff failed to establish its entitlement to Yellowstone relief ( see First Nat'l Stores v. Yellowstone Shopping Ctr., 21 N.Y.2d 630, 290 N.Y.S.2d 721, 237 N.E.2d 868). “A Yellowstone injunction maintains the status quo so that 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 forfeiture” of the lease ( Graubard Mollen Horowitz Pomeranz & Shapiro v. 600 Third Ave. Assoc., 93 N.Y.2d 508, 514, 693 N.Y.S.2d 91, 715 N.E.2d 117).
“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 Trump on the Ocean, LLC v. Ash, 81 A.D.3d 713, 716, 916 N.Y.S.2d 177;Korova Milk Bar of White Plains, Inc. v. PRE Props., LLC, 70 A.D.3d 646, 647, 894 N.Y.S.2d 499;see generally Graubard Mollen Horowitz Pomeranz & Shapiro v. 600 Third Ave. Assoc., 93 N.Y.2d at 514, 693 N.Y.S.2d 91, 715 N.E.2d 117).
Here, the plaintiff failed to demonstrate that it was not in breach of the provision of the lease agreement requiring it to maintain a policy of insurance naming the defendant as an additional insured. Under the circumstances of this case, the failure to maintain the requisite insurance would be an incurable default that formed an independent basis for the denial of Yellowstone relief ( see Kyung Sik Kim v. Idylwood, N.Y., LLC, 66 A.D.3d 528, 886 N.Y.S.2d 337;Grenadeir Parking Corp. v. Landmark Assoc., 294 A.D.2d 313, 314, 743 N.Y.S.2d 95;Zona, Inc. v. Soho Centrale, 270 A.D.2d 12, 14, 704 N.Y.S.2d 38). Contrary to the plaintiff's contention, certificates of insurance, which were issued as a matter of information only, were insufficient to establish that it maintained the requisite insurance or was capable of curing its default ( see Penske Truck Leasing Co. v. Home Ins. Co., 251 A.D.2d 478, 674 N.Y.S.2d 400).