XIOTIS RESTAURANT CORP v. LSS LEASING LIMITED LIABILITY COMPANY (2008)

In an action, inter alia, for a judgment declaring the parties' rights under a lease, the defendant appeals from an order of the Supreme Court, Queens County (Taylor, J.), dated November 22, 2006, which, among other things, granted the plaintiff's renewed motion for a Yellowstone injunction (see First Natl. Stores v. Yellowstone Shopping Ctr., 21 N.Y.2d 630, 290 N.Y.S.2d 721, 237 N.E.2d 868).

ORDERED that the order is affirmed, with costs.

 The purpose of a Yellowstone injunction (see First Natl. Stores v. Yellowstone Shopping Ctr., 21 N.Y.2d 630, 290 N.Y.S.2d 721, 237 N.E.2d 868) is to allow a commercial tenant confronted by a threat of termination of a lease to obtain a stay tolling the running of the cure period so that, after a determination of the merits of any action arising under the lease, the tenant may cure the defect and avoid a forfeiture of the leasehold (see Graubard Mollen Horowitz Pomeranz & Shapiro v. 600 Third Ave. Assocs., 93 N.Y.2d 508, 514, 693 N.Y.S.2d 91, 715 N.E.2d 117;  Hempstead Video, Inc. v. 363 Rockaway Assocs., LLP, 38 A.D.3d 838, 838-39, 833 N.Y.S.2d 144;  Long Is. Gynecological Servs. v. 1103 Stewart Ave. Assocs. Ltd. Partnership, 224 A.D.2d 591, 593, 638 N.Y.S.2d 959;  Sportsplex of Middletown v. Catskill Regional Off-Track Betting Corp., 221 A.D.2d 428, 633 N.Y.S.2d 588).   A tenant seeking Yellowstone relief must demonstrate that:  (1) it holds a commercial lease, (2) it has received from the landlord a notice of default, (3) its application for a temporary restraining order was made prior to expiration of the cure period and termination of the lease, and (4) it has the desire and ability to cure the alleged default by any means short of vacating the premises (see Hempstead Video, Inc. v. 363 Rockaway Assocs., LLP, 38 A.D.3d at 839, 833 N.Y.S.2d 144;  Mayfair Super Mkts., Inc. v. Serota, 262 A.D.2d 461, 461-462, 692 N.Y.S.2d 415).

 The Supreme Court properly granted the plaintiff Yellowstone relief.   Contrary to the defendant's contention, under the circumstances, the cure period with respect to the notice to cure dated June 3, 2005, which was tolled pursuant to a temporary restraining order granted to the plaintiff, did not expire before the plaintiff's renewed motion for a Yellowstone injunction was decided (cf. Mann Theatres Corp. of Cal. v. Mid-Island Shopping Plaza Co., 94 A.D.2d 466, 476, 464 N.Y.S.2d 793, affd. 62 N.Y.2d 930, 479 N.Y.S.2d 213, 468 N.E.2d 51;  Prince Lumber Co., Inc. v. CMC MIC Holding Co., LLC, 253 A.D.2d 718, 678 N.Y.S.2d 256).   Furthermore, contrary to the defendant's contention, the plaintiff demonstrated that it has the desire and ability to cure the alleged defaults listed in the notices to cure (see Gihon, LLC v. 501 Second Street, LLC, 306 A.D.2d 376, 761 N.Y.S.2d 276;  Lee v. TT & PP Main Street Realty Corp., 286 A.D.2d 665, 666, 729 N.Y.S.2d 775;  Terosal Props., Inc. v. Bellino, 257 A.D.2d 568, 569, 683 N.Y.S.2d 581).