Opinion
May 27, 1980
In an action for a declaratory judgment, permanent injunction and damages arising out of a commercial lease, plaintiffs appeal from so much of an order of the Supreme Court, Nassau County, dated January 18, 1980, as denied their motion for a preliminary injunction. Order affirmed insofar as appealed from, without costs or disbursements. Plaintiffs, tenants under a long-term commercial lease, seek a preliminary injunction tolling a 10-day termination notice served upon them by their landlord, which notice alleged a number of defaults under the lease (cf. First Nat. Stores v. Yellowstone Shopping Center, 21 N.Y.2d 630). In order to preserve the right to cure a default under the lease by a declaratory judgment action, the tenant must obtain a stay of the period within which the default may be cured (see First Nat. Stores v. Yellowstone Shopping Center, supra, p 637; Wuertz v Cowne, 65 A.D.2d 528). Plaintiffs failed to obtain a stay of the curative period (within 15 days of a notice of default), but instead secured a stay of the period between the notice of termination and its expiration date. As such, the plaintiffs' stay was procured after the landlord had acted to terminate the lease in accordance with its terms. While the termination notice provides for a 10-day period before the lease expires, the period is not one within which the tenant could cure the defaults. The failure of the plaintiffs to toll the curative period under the lease divested the court of its power to grant such a temporary stay (see First Nat. Stores v Yellowstone Shopping Center, supra; Wuertz v. Cowne, supra; Westside Towers v. Hevro Realty Corp., 40 A.D.2d 664; Wienerwald 8th St. v. Third Brevoort Corp., 38 A.D.2d 525; 150 East 57th St. Assoc. v. Fletcher, 35 A.D.2d 947; but see Madison Ave. Specialties v. Seville Enterprises, 40 A.D.2d 784 ; Lewis v. Clothes Shack, 67 Misc.2d 621). We do not reach the substantive issues raised by the plaintiffs, including the question of whether the defendant has waived the alleged defaults or breaches under the lease (cf. Malloy v. Club Marakesh, 71 A.D.2d 614; Condit v Manischewitz, 220 App. Div. 366; Sagson Co. v. Weiss, 83 Misc.2d 806; Trent v. Corwin, 76 N.Y.S.2d 198; Rasch, New York Landlord Tenant [2d ed], § 738; 3A Corbin, Contracts, § 763). "Whenever two men contract, no limitation self-imposed can destroy their power to contract again" (Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 388; see, also, Rose v. Spa Realty Assoc., 42 N.Y.2d 338, 343). All of these matters may be resolved at a trial. Hopkins, J.P., Lazer, Margett and O'Connor, JJ., concur.