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Definitions Personal Fitness, Inc. v. 133 E. 58th Street LLC

Supreme Court of New York, First Department

June 27, 2013

Definitions Personal Fitness, Inc., Plaintiff-Appellant,
v.
133 E. 58th Street LLC., Defendant-Respondent.

Robert M. Olshever, P.C., New York (Robert M. Olshever of counsel), for appellant.

Jaffe, Ross & Light, LLP, New York (Bill S. Light of counsel), for respondent.

Gonzalez, P.J., Renwick, DeGrasse, Manzanet-Daniels, Feinman, JJ.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered December 19, 2012, which denied plaintiff's motion for a Yellowstone injunction, unanimously affirmed, without costs.

The record demonstrates that plaintiff chronically failed to pay its rent, having forced defendant to bring 10 nonpayment proceedings over the last seven years. This is a breach of a substantial obligation under the lease (see Adam's Tower Ltd. Partnership v Richter, 186 Misc.2d 620, 621 [App Term, 1st Dept 2000]), and is a type of default that plaintiff cannot cure within the 15-day cure period provided for in the lease (see id. at 622). Accordingly, plaintiff was properly denied a Yellowstone injunction, since that relief requires a showing that plaintiff is able to cure (see Graubard Mollen Horowitz Pomeranz & Shapiro v 600 Third Ave. Assoc., 93 N.Y.2d 508, 514 [1999]).

Defendant was not limited to a nonpayment proceeding under the term of the lease that provided for such proceedings for nonpayment. Chronic nonpayment is a violation of a different type than occasional nonpayment (see 326-330 E. 35th St. Assoc. v Sofizade, 191 Misc.2d 329, 331-332 [App Term, 1st Dept 2002]). Nor can plaintiff rely on any defect of the notice of default, since no such notice is even necessary for an action based on chronic nonpayment (see 3363 Sedgwick v Medina, 187 Misc.2d 421 [App Term, 1st Dept 2000]). Furthermore, contrary to plaintiff's contention, there are no equitable considerations that would require a different result.


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