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Kim v. Idylwood

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


October 20, 2009

KYUNG SIK KIM, ET AL., PLAINTIFFS-APPELLANTS,
v.
IDYLWOOD, N.Y., LLC, DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Michael Stallman, J.), entered on or about March 31, 2009, which denied plaintiffs' application for a preliminary injunction enjoining defendant from terminating a commercial lease and for a temporary restraining order tolling the applicable cure period, 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.

Gonzalez, P.J., Friedman, Moskowitz, Renwick, DeGrasse, JJ.

104392/09

The motion court found, after a hearing, that plaintiffs had not previously and continuously maintained insurance coverage as required by their commercial lease. This violation was a material breach of the lease (see C & N Camera & Elec. v Farmore Realty, 178 AD2d 310, 311 [1991]) and, in these circumstances, an incurable violation that is an independent basis for the denial of Yellowstone relief (see Grenadeir Parking Corp. v Landmark Assocs., 294 AD2d 313, 314 [2002], lv denied 99 NY2d 553 [2002]; Zona, Inc. v Soho Centrale LLC, 270 AD2d 12, 14 [2000]). Plaintiffs' attempt to demonstrate their ability and readiness to cure the alleged violation by procuring, during the cure period, insurance coverage prospectively for the remaining 10 months of their lease term is unavailing, as such policy does not protect defendant against the unknown universe of any claims arising during the period of no insurance coverage.

We have considered plaintiffs' remaining arguments and, in light of our determination that the failure to maintain insurance coverage was an incurable violation, need not address them.

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

20091020

© 1992-2009 VersusLaw Inc.



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