STOLZ v. 111 TENANTS CORP (2004)

Order, Supreme Court, New York County (Rosalyn Richter, J.), entered April 15, 2003, which denied plaintiffs' motion for a Yellowstone injunction enjoining defendant landlord from taking action to terminate their proprietary lease and tolling the time to cure the default alleged in the notice to cure dated August 15, 2002, unanimously reversed, on the law, without costs, and plaintiffs' motion granted.

Under the terms of the notice to cure served by defendant on plaintiffs, plaintiffs had the option of either allowing defendant access to the residential premises in order to remove a greenhouse and make the necessary repairs, or plaintiffs could remove the greenhouse themselves and then grant defendant access to make the repairs.   Inasmuch as plaintiffs chose to exercise their right to remove the greenhouse themselves, duly made a conclusive showing (Caldwell v. 302 Convent Ave. Housing Dev. Fund, 272 A.D.2d 112, 707 N.Y.S.2d 423) that removal could not be accomplished within the 10-day period provided in Real Property Actions and Proceedings Law § 753(4) as a result of the requirements of N.Y. City Building Code [Administrative Code of the City of NY] § 27-191 and § 147, and met the other requirements for issuance of a Yellowstone injunction, said injunction should have issued here (cf. Post v. 120 East End Ave. Corp., 62 N.Y.2d 19, 28, 475 N.Y.S.2d 821, 464 N.E.2d 125;  Kanter v. East 62nd St. Assoc., 111 A.D.2d 26, 27, 488 N.Y.S.2d 692;  Wilen v. Harridge House, 94 A.D.2d 123, 126-129, 463 N.Y.S.2d 453).