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Village Center For Care, Plaintiff-Appellant v. Sligo Realty and Service Corp.

April 5, 2012

VILLAGE CENTER FOR CARE, PLAINTIFF-APPELLANT,
v.
SLIGO REALTY AND SERVICE CORP., DEFENDANT-RESPONDENT.



The opinion of the court was delivered by: Acosta, J.

Village Ctr. for Care v Sligo Realty & Serv. Corp.

Appellate Division, First Department

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.

Decided on April 5, 2012

David Friedman,J.P. John W. Sweeny, Jr. Rolando T. Acosta Dianne T. Renwick Sheila Abdus-Salaam, JJ.

Plaintiff appeals from orders of the Supreme Court, New York County (Shirley Werner Kornreich, J.), entered June 20, 2011 and June 21, 2011, which denied their motion for a Yellowstone injunction, and dismissed the action, respectively.

ACOSTA, J.

In this appeal we reaffirm this Department's rule that where defaults are incapable of being cured within the time provided in the notice to cure, and all that the terms of the lease require from the tenant is commencement of diligent efforts to cure the defaults within the allotted time, service of a notice of termination does not necessarily bar subsequent Yellowstone injunctive relief.

In November 2000, plaintiff-tenant Village Center for Care leased the second floor at 534 Hudson Street, New York, New York from defendant-landlord Sligo Realty and Service Corp., as an office for its not-for-profit corporation, which provides community case management to disabled, geriatric and low income individuals. The lease term was for 15 years, 6 months and fifteen days, and tenant agreed to perform certain electrical, plumbing and HVAC work at the premises. This work was completed in or about 2001.

On March 28, 2011 landlord served tenant with a "10-day" notice to cure alleging that tenant violated the lease inasmuch as tenant failed to (a) obtain and/or furnish landlord with proof that the Landmarks Commission had signed off on the work performed by tenant at the premises, (b) provide a mechanical ventilation certificate, (c) furnish proof of the structural stability of the work that was performed, and (d) provide proof of the sprinkler hydrostatic test. The Notice set forth a "cure date" of April 15, 2011.

In pertinent part, Paragraph 17 of the lease provides that: "If the Tenant defaults in fulfilling any of the covenants of this lease other than the covenants for the payment of rent or additional rent . . . upon Owner serving a written ten (10) days' notice upon Tenant specifying the nature of said default and upon the expiration of said ten (10) days, if Tenant shall have failed to comply with or remedy said default, or if the said default or omission complained of shall be of a nature that the same cannot be completely cured or remedied within said ten (10) day period and if Tenant shall not have diligently commenced curing such default within such ten (10) day period, and shall not thereafter with reasonable diligence and in good faith, proceed to remedy or cure such default, then Owner may serve a written five (5) days' notice of cancellation of this lease upon Tenant . . ." (emphasis added).

In response to the notice to cure, tenant annexed a Landmarks Preservation Commission permit, a technical report regarding the mechanical ventilation certificate, and OP-38 self certification of plumbing inspection conducted by the sprinkler contractor, the approved sprinkler system hydraulic analysis, and the work plans stamped approved by City of New York Department of Buildings.

Tenant received no response to its correspondence, but on May 4, 2011 it was served with a notice of termination, which stated that the lease would be terminated as of May 16, 2011. Thereafter, the landlord agreed to an extension of the termination date to June 16, 2011. During this extension period, all defects were cured except the City's waiver of a further sprinkler hydrostatic test for the second floor premises. In order to obtain the waiver, tenant was obligated to provide the City with a copy of the building-wide hydrostatic test, and requested such from the landlord. ...


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