Opinion
17058 Index No. 151508/22 Case No. 2022–02487
01-10-2023
Brenda SINSHEIMER et al., Plaintiffs–Appellants, v. PARK AND 66TH CORPORATION, Defendant–Respondent.
Warshaw Burstein, LLP, New York (Bruce H. Wiener of counsel), for appellants. Adam Leitman Bailey, P.C., New York (Jeffrey R. Metz of counsel), for respondent.
Warshaw Burstein, LLP, New York (Bruce H. Wiener of counsel), for appellants.
Adam Leitman Bailey, P.C., New York (Jeffrey R. Metz of counsel), for respondent.
Acosta, P.J., Webber, Moulton, Shulman, Higgitt, JJ.
Order, Supreme Court, New York County (Paul A. Goetz, J.), entered June 8, 2022, which denied plaintiffs’ motion for a Yellowstone injunction, unanimously affirmed, without costs.
The court properly denied plaintiffs’ motion, as they failed to meet the requirements for a Yellowstone injunction (see 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 [1999] ). The subject lease is not a commercial lease, but a residential proprietary lease. Residential tenants generally rely on the protections of RPAPL 753(4) via a summary proceeding (see Kanner v. West 15th St. Owners, Inc., 236 A.D.2d 341, 341, 653 N.Y.S.2d 600 [1st Dept. 1997] ; Killington Invs. v. Leino, 148 A.D.2d 334, 336, 538 N.Y.S.2d 812 [1st Dept. 1989] ), except for limited circumstances where the statutory remedy is determined to be inadequate (see Stolz v. 111 Tenants Corp., 3 A.D.3d 421, 422, 772 N.Y.S.2d 3 [1st Dept. 2004] ; Seligman v. Parcel One Co., 170 A.D.2d 344, 345, 566 N.Y.S.2d 45 [1st Dept. 1991] ).
Plaintiffs have not demonstrated that RPAPL 753(4) would provide them with inadequate relief such that a Yellowstone injunction would be necessary. The apartment is located in New York City, thus the protections of RPAPL 753(4) apply. Plaintiffs have not made a showing that it would take more than thirty days to move to another residence if they are unsuccessful in a summary proceeding, during which time they would have the protections of RPAPL 753(4). Plaintiffs’ apparent lack of effort to transfer the shares into plaintiff executor's name or sell the apartment thus far, provides little indication that they are prepared "to cure the alleged default by any means short of vacating the premises" ( Graubard, 93 N.Y.2d at 514, 693 N.Y.S.2d 91, 715 N.E.2d 117 ).
As to the alternative request for a preliminary injunction, plaintiffs have made no argument that they will be irreparably injured absent preliminary injunctive relief, or that the balance of the equities favors it (see Grand Manor Health Related Facility, Inc. v. Hamilton Equities, Inc., 85 A.D.3d 695, 695, 926 N.Y.S.2d 100 [1st Dept. 2011] ; Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839, 800 N.Y.S.2d 48, 833 N.E.2d 191 [2005] ). We have considered plaintiffs’ remaining contentions and find them unavailing.