VILLAGE INFANT CENTER INC v. FIRST 10TH STREET LLC (2022)

The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 37, 38, 39, 40, 41, 42 were read on this motion for TEMPORARY RESTRAINING ORDER.

This order concerns a request for interim relief accompanying a motion for a Yellowstone injunction that plaintiff Village Infant Center, Inc., brought on by order to show cause. Plaintiff filed its proposed order to show cause at the same time it commenced the action, before any service on, or appearance by, defendant First 10th Street, LLC. (Compare NYSCEF No. 1 [summons and complaint], with NYSCEF No. 2 [proposed order to show cause].) The proposed order to show cause sought a temporary restraining order that would remain in effect pending the determination of the motion. Plaintiff's motion papers assert that the requested interim relief is necessary to preserve the status quo because defendant had previously served plaintiff with a now-expired five-day notice to cure. Plaintiff hotly disputes the validity of that notice and whether service of the notice was proper.

This court declined to grant the full TRO sought by plaintiff, among other things because defendant had not yet appeared or had a chance to respond to plaintiff's arguments in favor of granting the TRO. Instead, this court entered a TRO that would be effective for two days, ordered plaintiff to serve a copy of its motion papers on defendant's counsel, and directed the parties to provide letter briefing on whether or not to grant a further TRO. (See NYSCEF No. 39.) The parties have since provided the requested letter briefing. (See NYSCEF Nos. 41, 42.)

Defendant's letter withdraws the notice to cure without prejudice “to avoid litigating the allegations raised” about its service, “that is, who received the Notice and when.”¹ (NYSCEF No. 41 at 3.) Defendant argues that the withdrawal of the notice renders academic plaintiff's application for interim relief. (See id.) This court finds defendant's argument persuasive. The basis for plaintiff's request for interim relief was that given the expiration of the notice to cure (and the five day lease-termination period following expiration of the notice), defendant could at any point terminate the lease, thereby potentially depriving plaintiff of the opportunity to obtain Yellowstone relief. (See NYSCEF No. 3 at ¶¶ 3-4.) The notice's withdrawal removes that prospect.

Plaintiff contends that it still needs interim relief to prevent irreparable injury because it is likely that defendant will serve a new notice to cure in the near future. (See NYSCEF No. 42 at 2.) But defendant undisputedly has not served a new notice. Nor is it clear when defendant intends to do so. The contingent possibility that defendant will serve a new notice to cure with which plaintiff is unable to comply does not warrant the grant at this time of interim relief pending the court's consideration of plaintiff's motion for an injunction.

Accordingly, it is

ORDERED that plaintiff's request on this motion for further interim relief pending the court's hearing and determination of the motion is denied.

FOOTNOTES

1.   Plaintiff asserts that by withdrawing the notice to cure, defendant has necessarily conceded the merits of plaintiff's challenges to the validity and proper service of the notice to cure. (NYSCEF No. 42 at 1-2.) This court disagrees.

Gerald Lebovits, J.