109TH AND FIRST AVENUE CORP v. [And a Third Party Action]. (2008)

Order, Supreme Court, New York County (Richard F. Braun, J.), entered December 4, 2007, which granted plaintiff's motion for a Yellowstone injunction, unanimously affirmed, with costs.

The affidavits of plaintiff's principal and an engineer submitted in support of the motion, together with corroborative Department of Buildings records, indicate that plaintiff has made efforts, albeit slowly over a nine-year period, to comply with its lease obligation to obtain a certificate of occupancy for the car wash improvements that defendant made to the premises years before the commencement of the subject lease.   It thus sufficiently appears that plaintiff, who allegedly purchased from defendant the “good will” of the car wash business and its fixtures at the time the lease was signed, and eventually, following several applications to the Department of Buildings, obtained alteration approvals in August 2007, has the requisite desire and ability to cure the alleged default (see Graubard Mollen Horowitz Pomeranz & Shapiro v. 600 Third Ave. Assoc., 93 N.Y.2d 508, 514-515, 693 N.Y.S.2d 91, 715 N.E.2d 117 [1999];  TSI W. 14, Inc. v. Samson Assoc., LLC, 8 A.D.3d 51, 52-53, 778 N.Y.S.2d 29 [2004] ).   We have considered defendant's other arguments and find them unavailing.