Opinion
January 24, 1995
Appeal from the Supreme Court, New York County (Harold Tompkins, J.).
There is no merit to defendant's argument that the action is unnecessary because the issues raised can be resolved in Civil Court in the context of a summary proceeding. That court lacks the jurisdiction to grant plaintiff the affirmative relief of mandating defendant's cooperation in obtaining the amendments to the certificate of occupancy that plaintiff needs (see, DeCastro v. Bhokari, 201 A.D.2d 382, 383, citing Hotel New Yorker Pharmacy v. New Yorker Hotel Corp., 40 A.D.2d 967).
We find that plaintiff timely commenced taking the necessary steps to obtain an amendment of the certificate of occupancy by contacting an expediter to assist in processing the application to the Department of Buildings, and therefore should have, under the terms of the cure provision contained in the lease, been granted a Yellowstone injunction. In reaching this conclusion, we note our disagreement with the practice of granting preliminary injunctive relief pursuant to CPLR 6301 when Yellowstone relief is unavailable because of the untimeliness of the application, and disavow our previous holding to the contrary (see, Burger King Corp. v. 111 Cedar St. Co., 182 A.D.2d 399 [modfg Sup Ct, N.Y. County, Tompkins, J.]; but cf., 233 E. 86th St. Corp. v. Park E. Apts., 131 Misc.2d 242, 244 [Tompkins, J.], affd 123 A.D.2d 536 [default not capable of being cured]).
Moreover, while the IAS Court may have correctly determined that its order accurately reflected its decision, the relief granted exceeded the scope of plaintiff's pleading. In both the body of its complaint and in its accompanying order to show cause, plaintiff sought only to enjoin defendant from taking any steps to terminate the lease "based on the allegations contained in the Notice to Cure", although in the ad damnum the request did not limit such relief to the notice. The relief, as granted, is overbroad since it may be construed as enjoining defendant from seeking termination of plaintiff's lease based upon grounds not set forth in the notice to cure, or even ones arising after its service.
Concur — Murphy, P.J., Sullivan, Wallach, Nardelli and Tom, JJ.