Village Ctr. for Care v Sligo Realty & Serv. Corp.
Decided on January 10, 2012
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.
Friedman, J.P., Sweeny, Acosta, Renwick, Abdus-Salaam, JJ.
Orders, Supreme Court, New York County (Shirley Werner Kornreich J.), entered June 20, 2011 and June 21, 2011, which denied plaintiff tenant's motion for a Yellowstone injunction, and dismissed the action, respectively, unanimously reversed, on the law, with costs, the motion granted and the action reinstated.
Although the subject lease provides for a 10-day cure period, it also provides for an unspecified longer period to cure defaults not capable of complete cure within 10 days, upon condition that the tenant commence curing within the 10-day period and thereafter proceed with good faith and diligence.
Here, tenant demonstrated that its defaults, which included failure to obtain waivers and approvals from City agencies, were not capable of cure within 10 days and defendant landlord failed to offer any opposing evidence. The tenant commenced to cure the violations within the stated 10-day period and it continued in good faith to undertake efforts to cure by hiring an expediter once apprised that the documentation was insufficient (see Manhattan Parking Sys.-Serv. Corp. v Murray House Owners Corp., 211 AD2d 534 ; compare KB Gallery, LLC v 875 W. 181 Owners Corp., 76 AD3d 909 )). Since the applicable cure period under the express terms of the lease had not ended, landlord's notice of termination was premature and invalid for the purpose of barring tenant from applying for Yellowstone relief (see Empire State Bldg. Assoc. v Trump Empire State Partners, 245 AD2d 225, 229 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 10, 2012
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