Opinion
2015-01-26
ARTCORP INC., Plaintiff–Appellant, v. CITIRICH REALTY CORP., Defendant–Respondent.
Moulinos & Associates LLC, New York (Peter Moulinos of counsel), for appellant. Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York (Paul N. Gruber of counsel), for respondent.
Moulinos & Associates LLC, New York (Peter Moulinos of counsel), for appellant. Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York (Paul N. Gruber of counsel), for respondent.
MAZZARELLI, J.P., DeGRASSE, RICHTER, CLARK, JJ.
Order, Supreme Court, New York County (Nancy Bannon, J.), entered June 20, 2014, which denied plaintiff's motion for a Yellowstone injunction, unanimously reversed, on the law and the facts, with costs, and the motion granted.
To obtain Yellowstone relief a tenant need not show a likelihood of success on the merits (WPA/Partners LLC v. Port Imperial Ferry Corp., 307 A.D.2d 234, 237, 763 N.Y.S.2d 266 [1st Dept.2003] ). It can simply deny the alleged breach of its lease ( see Boi To Go, Inc. v. Second 800 No. 2 LLC, 58 A.D.3d 482, 870 N.Y.S.2d 334 [1st Dept.2009] ). Contrary to defendant landlord's contention, plaintiff tenant clearly asserted its willingness to cure the allegedly improper assignment of its shares, and had the ability to do so either by transferring its shares back to the deceased owner's estate ( see East Best Food Corp. v. N.Y. 46th LLC, 56 A.D.3d 302, 867 N.Y.S.2d 77 [1st Dept.2008] ) or by seeking consent from the landlord ( see Gettinger Assoc., LLC v. Abraham Kamber & Co. LLC, 103 A.D.3d 535, 960 N.Y.S.2d 37 [1st Dept.2013] ). Further, consent may be obtained after the assignment and even in the absence of a lease provision authorizing this post-assignment cure ( see Empire State Bldg. Assoc. v. Trump Empire State Partners, 245 A.D.2d 225, 229, 667 N.Y.S.2d 31 [1st Dept.1997] ). Zona, Inc. v. Soho Centrale, 270 A.D.2d 12, 704 N.Y.S.2d 38 (1st Dept.2000) is distinguishable because the tenant there failed to assert that it had the ability to cure its default.