Opinion
December 9, 1971
Order and judgment (one paper), Supreme Court, New York County, entered on August 5, 1971, granting defendant Third Brevoort Corporation summary judgment, unanimously reversed, on the law, and vacated, and summary judgment granted to appellants, declaring Third Brevoort Corporation's notice of default and One East 8th St. Corp.'s notice of default to have been complied with, and they are permanently enjoined from termination of the leases under such default notices, and the leases are adjudged in full effect. Appellants Wienerwald 8th Street, Inc., and One East 8th St. Corp. shall recover of defendant-respondent The Third Brevoort Corporation one bill of $50 costs and disbursements of this appeal. The subject matter of the controversy set forth in the notices of default, dated December 7, 1970 and December 11, 1970, specified violation 4220-70 (double doors) as the item of default under the leases and not the consent judgment between Wienerwald and Third Brevoort. The subsequent order entered March 2, 1971, denying the motion for a temporary injunction, extended the stay and prevented the defendants from proceeding under their respective notices of default, and the tolling for 30 days. By March 26, well within the 30-day period, the violation was complied with and this motion for summary judgment was brought. The record is clear that Wienerwald took immediate action to comply with the notices of December 7 and December 11, and pending the construction, stays and tolling were granted by the court. The work was timely completed. Wienerwald followed the procedure outlined in First Nat. Stores v. Yellowstone Shopping Center ( 21 N.Y.2d 630) and 150 East 57th St. Assoc. v. Fletcher ( 35 A.D.2d 947) to test the legality and propriety of a landlord's notice of default under a lease, and of its intention to terminate if there was no compliance.
Concur — Capozzoli, J.P., McGivern, Murphy, Steuer and Eager, JJ.