Opinion
1958
October 22, 2002.
Order, Supreme Court, New York County (Jane Solomon, J.), entered August 20, 2001, which denied plaintiff's motion for a Yellowstone injunction and dismissed the complaint, unanimously affirmed, with costs.
PETER J. PRUZAN, for plaintiff-appellant.
MICHAEL EISNER, for defendant-respondent.
Before: Williams, P.J., Nardelli, Andrias, Marlow, JJ.
The record discloses that plaintiff did not timely seek injunctive relief since the order to show cause that effected a temporary restraining order and tolled the cure period, pending the hearing on theYellowstone application, was signed by the motion court after the cure period had ended and after service of the notice of termination (see Daashur Assocs. v. December Artists Apt. Corp., 226 A.D.2d 114, 114-115). The motion therefore could have been denied as untimely (see Weaver v. Essex Owners Corp., 235 A.D.2d 369, 370, lv denied in part and dismissed in part 89 N.Y.2d 1073). In any event, the record supports the motion court's conclusion that plaintiff would not or could not cure the alleged default by means short of vacating the premises, and therefore could not establish its entitlement to Yellowstone relief (see Graubard Mollen Horowitz Pomeranz Shapiro v. 600 Third Ave. Assocs., 93 N.Y.2d 508, 514).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.