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Ray & W Cut Inc. v. 240 West 37 LLC

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


January 6, 2009

RAY & W CUT INC., PLAINTIFF-RESPONDENT,
v.
240 WEST 37 LLC, DEFENDANT-APPELLANT.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered January 23, 2008, which, insofar as appealed from as limited by the briefs, granted plaintiff tenant's motion for a Yellowstone injunction, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Lippman, P.J., Mazzarelli, Sweeny, DeGrasse, Freedman, JJ.

111411/07

Plaintiff established its entitlement to a Yellowstone injunction upon its demonstration that it held a commercial lease, had received a notice to cure from defendant landlord, had requested injunctive relief prior to the expiration of the cure period and termination of the lease, and demonstrated that it was prepared and maintained the ability to cure the alleged default (see Graubard Mollen Horowitz Pomeranz & Shapiro v 600 Third Ave. Assoc., 93 NY2d 508, 514 [1999]; 225 E. 36th St. Garage Corp. v 221 E. 36th Owners Corp., 211 AD2d 420, 421 [1995]). Indeed, plaintiff showed its willingness and ability to cure its default pertaining to the lease's insurance requirements by presenting the court with a certificate of insurance providing for 30 days' notice of default to the landlord, as required by the lease. That the certificate of insurance stated that the issuing insurer would "endeavor" to provide 30 days' notice does not warrant a different determination.

We have considered defendant's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090106

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