Opinion
Argued January 5, 2001.
February 5, 2001.
In an action, inter alia, for a judgment declaring that the defendant is prohibited from using its leased premises to operate a one-hour photo laboratory, the defendant appeals from an order of the Supreme Court, Suffolk County (Underwood, J.), dated February 23, 2000, which granted the plaintiff's motion for a preliminary injunction and denied its cross motion for a Yellowstone injunction.
Allyn Fortuna, New York, N.Y. (Andrea Platner of counsel), for appellant.
Lazer, Aptheker, Feldman, Rosella Yedid, P.C., Melville, N Y (Zachary Murdock and David Lazer of counsel), for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., GABRIEL M. KRAUSMAN, ANITA R. FLORIO, DANIEL F. LUCIANO, JJ.
DECISION ORDER
ORDERED that the order is modified, on the law, by deleting the provision thereof denying the defendant's cross motion for a Yellowstone injunction and substituting therefor a provision granting the cross motion; as so modified, the order is affirmed, without costs or disbursements.
Contrary to the defendant's contention, the Supreme Court properly granted the plaintiff's motion for a preliminary injunction barring it from operating a one-hour photo laboratory during the action. In support of its motion, the plaintiff sustained its burden of demonstrating a likelihood of success on the merits based on the language of the restrictive use clause in the parties' lease (see, Dennis Jimmy's Food Corp. v. Milton Co., 99 A.D.2d 477, affd 62 N.Y.2d 613; see also, Mostazafan Found. of N Y v. Rodeo Plaza Assocs., 151 A.D.2d 347; Anzalone v. Normant Drugs, 136 Misc.2d 995). The plaintiff also established that it would suffer irreparable injury absent the issuance of the injunction, and that a balancing of the equities is in its favor (see, Forty-Seventh Fifth Co. v. Nektalov, 225 A.D.2d 343; Mostazafan Found. of N Y v. Rodeo Plaza Assocs., supra; Anzalone v. Normant Drugs, supra).
However, the Supreme Court should have granted the defendant's cross motion for a Yellowstone injunction tolling the 30-day cure period under the lease and allowing it an opportunity to cure the alleged default if the court renders a final determination on the merits that its operation of the one-hour photo laboratory is a violation of the lease (see, First Natl. Stores v. Yellowstone Shopping Ctr., 21 N.Y.2d 630; Graubard Mollen Horowitz Pomeranz Shapiro v. 600 Third Ave. Assocs., 93 N.Y.2d 508; Waldbaum, Inc. v. Fifth Ave. of Long Is. Realty Assocs., 85 N.Y.2d 600; Terosal Props. v. Bellino, 257 A.D.2d 568).