From Casetext: Smarter Legal Research

Rappa v. Palmieri

Appellate Division of the Supreme Court of New York, Second Department
Apr 4, 1994
203 A.D.2d 270 (N.Y. App. Div. 1994)

Opinion

April 4, 1994

Appeal from the Supreme Court, Queens County (LeVine, J.).


Ordered that the order is affirmed, with costs.

Contrary to the plaintiffs' contention, the court did not mischaracterize the relief requested. A Yellowstone injunction (see, First Natl. Stores v Yellowstone Shopping Ctr., 21 N.Y.2d 630) was specifically requested in their reply. Moreover, the court did not improvidently exercise its discretion in denying the motion. The motion was untimely, since the plaintiffs did not move for injunctive relief until after the expiration of the cure period specified in the defendants' notice to cure, and after the termination notice had been served (see, Ritz Entertainment Org. v Unity Gallega, 166 A.D.2d 186). Additionally, the plaintiffs failed to demonstrate their willingness to cure their default short of vacating the premises (see, Linmont Realty v Vitocarl, Inc., 147 A.D.2d 618, 620). There is no indication that the plaintiffs were willing to seek a use variance. Nor did they attempt to compel the defendants to do so. Instead, the plaintiffs commenced the present action to, inter alia, rescind the commercial lease. Therefore, the record establishes that the plaintiffs seek to discharge their default by rescinding the lease and not to reform the lease or cure the default and occupy the leased premises.

The plaintiffs' remaining contentions are unpreserved for appellate review. Rosenblatt, J.P., Lawrence, Altman and Goldstein, JJ., concur.


Summaries of

Rappa v. Palmieri

Appellate Division of the Supreme Court of New York, Second Department
Apr 4, 1994
203 A.D.2d 270 (N.Y. App. Div. 1994)
Case details for

Rappa v. Palmieri

Case Details

Full title:CARLO RAPPA et al., Appellants, v. NICOLA PALMIERI et al., Respondents

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 4, 1994

Citations

203 A.D.2d 270 (N.Y. App. Div. 1994)
610 N.Y.S.2d 286

Citing Cases

Unique Marble Granite Org. v. Hamil Stratten Props.

The branch of the plaintiff's motion for a Yellowstone injunction is denied. The purpose of a Yellowstone…

R.P.S.P. Pasta Corp. v. Tor Valley, Inc.

Defendant appeals. It is well settled that there is no basis for the relief provided by a Yellowstone…