BOI TO GO INC v. SECOND 800 NO LLC (2009)

Order, Supreme Court, New York County (Louis B. York, J.), entered June 4, 2008, which, insofar as appealed from, denied plaintiff's motion for a Yellowstone injunction, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff restaurant established its entitlement to a Yellowstone injunction.   In addition to demonstrating that it held a commercial lease, had received a notice to cure from defendant landlord, and had requested injunctive relief prior to the expiration of the cure period, plaintiff showed that it was prepared and maintained the ability to cure the alleged default (see Graubard Mollen Horowitz Pomeranz & Shapiro v. 600 Third Ave. Assoc., 93 N.Y.2d 508, 514, 693 N.Y.S.2d 91, 715 N.E.2d 117 [1999] ).   Although denying responsibility for the defaults set forth in defendant's notice, i.e., that plaintiff permitted offensive odors to emanate from its establishment to other areas of the building, plaintiff has nonetheless evinced a willingness to cure any defaults, if found by the court (see TSI W. 14, Inc. v. Samson Assoc., LLC, 8 A.D.3d 51, 52-53, 778 N.Y.S.2d 29 [2004];  compare Cemco Rests. v. Ten Park Ave. Tenants Corp., 135 A.D.2d 461, 522 N.Y.S.2d 151 [1987], lv. dismissed 72 N.Y.2d 840, 530 N.Y.S.2d 555, 526 N.E.2d 47 [1988] ).   Here, there has yet to be a determination that odors were indeed coming from plaintiff's establishment, or, if so, whether plaintiff was responsible for them.   Accordingly, there is no basis to evaluate whether plaintiff is in violation of its lease (see E.C. Elecs., Inc. v. Amblunthorp Holding, Inc., 38 A.D.3d 401, 834 N.Y.S.2d 14 [2007] ), and the application seeking injunctive relief should have been granted.