HEON LEE v. TT PP MAIN STREET REALTY CORP (2001)

In an action, inter alia, for a judgment declaring that the plaintiff is not in breach of the terms of a lease, the plaintiff appeals from an order of the Supreme Court, Queens County (Schmidt, J.), dated January 4, 2001, which denied his motion for a preliminary injunction enjoining the defendant from terminating the lease pending resolution of the action.

ORDERED that the order is reversed, on the law, with costs, the plaintiff's motion is granted, and the matter is remitted to Supreme Court, Queens County, for the fixing of an appropriate undertaking pursuant to CPLR 6312.

 The defendant landlord served a notice to cure on the plaintiff tenant alleging, among other things, that he was in breach of the terms of the parties' lease agreement by operating a computer game facility or video arcade without a license.   The plaintiff commenced this action, inter alia, for a judgment declaring that he was not in breach of the terms of the lease.   The Supreme Court denied his motion for a Yellowstone injunction (see, First Nat. Stores v. Yellowstone Shopping Center, 21 N.Y.2d 630, 290 N.Y.S.2d 721, 237 N.E.2d 868), holding that the plaintiff was obligated to obtain a license pursuant to the provisions of the Administrative Code of the City of New York governing amusement arcades (see, Administrative Code of City of N.Y. § 20-211, et seq.).   We reverse.

 A tenant requesting a Yellowstone injunction must demonstrate that (1) he holds a commercial lease, (2) he received a notice of default, notice to cure, or threat of termination of the lease, (3) he requested injunctive relief prior to the termination of the lease, and (4) he is prepared and has the ability to cure the alleged default by any means short of vacating the premises (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 117 225 E. 36th St. Garage Corp. v. 221 E. 36th Owners Corp., 211 A.D.2d 420, 621 N.Y.S.2d 302).   Here, the plaintiff demonstrated a desire and an ability to cure the alleged defaults listed in the notice to cure (see, Terosal Props. v. Bellino, 257 A.D.2d 568, 683 N.Y.S.2d 581).

Accordingly, the motion is granted, and the matter is remitted to the Supreme Court, Queens County, for the fixing of an appropriate undertaking pursuant to CPLR 6312 (see, Terosal Props. v. Bellino, supra;  Cohn v. White Oak Coop. Hous. Corp., 243 A.D.2d 440, 663 N.Y.S.2d 62).