NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
June 15, 2010
C C VENDING, INC., PLAINTIFF-APPELLANT,
BERKELEY EDUCATIONAL SERVICES OF NEW YORK, INC., DEFENDANT-RESPONDENT.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered March 8, 2010, which denied plaintiff's motion for a Yellowstone injunction and a preliminary injunction and granted defendant's cross motion to stay arbitration, 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.
Mazzarelli, J.P., Moskowitz, DeGrasse, Abdus-Salaam, Manzanet-Daniels, JJ.
Plaintiff has failed to show entitlement to a Yellowstone injunction. It is well settled that "[t]he purpose of a Yellowstone injunction is to allow a tenant confronted by a threat of termination of the lease to obtain a stay tolling the running of the cure period so that, after a determination of the merits, the tenant may cure the defect and avoid a forfeiture of the leasehold" (Empire State Bldg. Assoc. v Trump Empire State Partners, 245 AD2d 225, 227 ). A party seeking such an injunction must demonstrate that it holds a commercial lease; that it received from the landlord either a notice of default, a notice to cure or a threat of termination of the lease; that it requested injunctive relief prior to termination of the lease; and that it is prepared and has the ability to cure the alleged default by any means short of vacating the premises (Graubard Mollen Horowitz Pomeranz & Shapiro v 600 Third Ave. Assoc., 93 NY2d 508, 514 ).
The contract at issue gives plaintiff an exclusive right to operate various concessions. Because "such exclusive right is not a lease," plaintiff was not a commercial lessee but rather "a licensee or concessionaire without interest in the realty" (Senrow Concessions v Shelton Props., 10 NY2d 320, 325 ). Since plaintiff has no control over defendant's premises where the vending machines are located, it has no tangible interest in the property, and thus no right to a Yellowstone injunction.
To establish grounds for a preliminary injunction, a party must demonstrate "probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor" (Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 ). Plaintiff's moving papers are devoid of any such showing. Moreover, plaintiff could be made whole by monetary damages (see Somers Assoc. v Corvino, 156 AD2d 218 ).
Plaintiff waived the right to arbitrate its breach-of-contract claims by seeking a declaratory judgment on whether the agreement had been breached (Sherrill v Grayco Builders, Inc., 99 AD2d 965; aff'd 64 NY2d 261).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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