Commercial/Landlord/Tenant

Yellowstone Motions

New York commercial lease forms typically provide that if a tenant is in violation of a nonmonetary provision of the lease (for example, using the premises in a manner that is prohibited by the lease), the tenant has a certain number of days to cure its breach upon receiving written notice of its breach (known as a "notice to cure") by the landlord.

If the alleged violation is not susceptible of being cured within that period, the tenant may file a motion to extend its cure period, and enjoin the landlord from terminating the lease, in Supreme Court. That motion is commonly referred to by New York landlord-tenant attorneys as a "Yellowstone motion," and it must be filed before the expiration of the cure period. To obtain a Yellowstone injunction, a tenant must be able to show that it genuinely wishes to cure any alleged default. A Yellowstone motion should be filed as soon as possible after the tenant has received the landlord's notice to cure. Because Yellowstone injunctions are generally not available unless the tenant's motion is filed before the expiration of the cure period, a tenant should not delay filing merely on the basis of the landlord's verbal assurances.

At bottom, a tenant should not, under any circumstances, ignore a notice to cure. Inaction may result in the termination of the tenant's leasehold.

In drafting a notice to cure, a landlord should pay close attention to details. The landlord's notice to cure must specifically set forth the alleged defaults of the tenant under the lease. The notice to cure must also state that the lease will be terminated if the alleged default is not cured by the tenant within the time period set forth in the notice to cure. The landlord should particularize the nature of the tenant's default with particularity and detail. A mere reference to the numbered provisions of the lease is not legally sufficient.

The failure of a notice to cure to clearly set forth the nature of the tenant's default may be a fatal defect, and may subsequently be used by the tenant as an affirmative defense if the landlord subsequently seeks to evict by filing a holdover petition.

In matters involving notices to cure and Yellowstone motions, landlords and tenants should obtain counsel from an experienced New York landlord tenant attorney. The complexities of NY landlord tenant law present potential pitfalls for both landlords and tenants.