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Landlord Tenant

Yellowstone Motions

Yellowstone Motions

A New York commercial lease typically contains a clause permitting the landlord to issue a notice to cure demanding that the tenant fix or cease an alleged non-monetary default (for example, using the premises in a manner that is allegedly prohibited by the lease or without proper governmental permits) within a certain period of time under the threat of forfeiting its leasehold interest. If the tenant fails to cure its alleged default or obtain an injunction extending the cure period, the tenant faces the unpleasant prospect of defending its (oftentimes valuable) leasehold interest in a summary eviction proceeding. In many instances, landlords issue default notices in bad faith as an excuse to evict tenants that are not actually in default. In other instances, it might may not be feasible to cure a default within the cure period (typically 20 or 30 days) provided by a lease. Curing an alleged default may require more than 30 days, particularly if curing involves construction work to the leased premises or getting approvals from governmental agencies, such as the NYC Department of Buildings.

A commercial tenant that is served with a notice of default may minimize the threat to its leasehold by filing an emergent order to show cause in the Supreme Court requesting a temporary restraining order and preliminary injunction extending the cure period. This type of motion is known as an application for Yellowstone relief. It gets its name from the oft-cited decision, First Natl. Stores v. Yellowstone Shopping Ctr., 21 N.Y. 630 (1968). Most Supreme Court judges in New York City (particularly judges who are assigned to commercial dockets) are fully familiar with the standards for Yellowstone relief. A commercial tenant applying for Yellowstone relief must show that it: (i) holds a commercial lease; (ii) received a cure notice from its landlord threatening it with termination; (iii) is willing and able to cure an alleged default by any means short of vacating the premises; and (iv) is seeking Yellowstone relief prior to the expiration of the cure period provided by the lease.

If you have been served with a notice to cure, it is essential that you retain a New York landlord-tenant law firm with the requisite experience and skills to prepare a compelling application for relief within a short period of time. If you wait until after your cure period expires, most New York judges will reject your application as untimely. The experienced commercial litigators at Rapaport Law Firm have two decades of experience obtaining Yellowstone injunctions for commercial tenants.

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