NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
January 13, 2009
BOI TO GO, INC., PLAINTIFF-APPELLANT,
SECOND 800 NO. 2 LLC, DEFENDANT-RESPONDENT.
Order, Supreme Court, New York County (Louis B. York, J.), entered June 4, 2008, which, insofar as appealed from, denied plaintiff's motion for a Yellowstone injunction, unanimously reversed, on the law, without costs, and the motion granted.
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.
Andrias, J.P., Nardelli, Moskowitz, Renwick, Freedman, JJ.
Plaintiff restaurant established its entitlement to a Yellowstone injunction. In addition to demonstrating that it held a commercial lease, had received a notice to cure from defendant landlord, and had requested injunctive relief prior to the expiration of the cure period, plaintiff showed 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 ). Although denying responsibility for the defaults set forth in defendant's notice, i.e., that plaintiff permitted offensive odors to emanate from its establishment to other areas of the building, plaintiff has nonetheless evinced a willingness to cure any defaults, if found by the court (see TSI W. 14, Inc. v Samson Assoc., LLC, 8 AD3d 51, 52-53 ; compare Cemco Rests. v Ten Park Ave. Tenants Corp., 135 AD2d 461 , lv dismissed 72 NY2d 840 ). Here, there has yet to be a determination that odors were indeed coming from plaintiff's establishment, or, if so, whether plaintiff was responsible for them. Accordingly, there is no basis to evaluate whether plaintiff is in violation of its lease (see E.C. Elecs., Inc. v Amblunthorp Holding, Inc., 38 AD3d 401 ), and the application seeking injunctive relief should have been granted.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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