217 20 LLC v. DE MAIO PROPERTIES LLC (2026)

DECISION & ORDER

In an action to recover damages for breach of contract and for declaratory and injunctive relief, the plaintiff appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered April 7, 2025.  The order denied the plaintiff's motion for a preliminary injunction and granted that branch of the defendant's cross-motion which was pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that the plaintiff breached the terms of the subject lease agreement and failed to cure the breach and that the defendant may proceed with terminating the plaintiff's tenancy and recovering the subject property.

In July 2024, the defendant, as landlord, and the plaintiff, as tenant, entered into a lease agreement for commercial real property located in Queens.  The defendant sent the plaintiff a 15–day notice to cure dated October 24, 2024, which indicated that the plaintiff had failed to provide proof of general public liability insurance as required under paragraph 47 of the rider to the lease agreement.  On November 1, 2024, the plaintiff provided the defendant with a copy of a certificate of liability insurance for a commercial general liability policy effective from October 29, 2024, and expiring October 29, 2025, naming the plaintiff as the insured and the defendant as an additional insured.  The defendant sent the plaintiff a 10–day notice of termination dated November 15, 2024, and subsequently rejected the plaintiff's rent payment for December 2024.

Thereafter, in December 2024, the plaintiff commenced this action against the defendant to recover damages for breach of contract and for declaratory and injunctive relief.  The plaintiff simultaneously moved for a preliminary injunction enjoining the defendant from terminating the lease agreement or commencing an eviction proceeding.  The defendant opposed the plaintiff's motion and cross-moved, among other things, pursuant to CPLR 3211(a) to dismiss the complaint.  In an order entered April 7, 2025, the Supreme Court denied the plaintiff's motion and granted that branch of the defendant's cross-motion.  The plaintiff appeals.

To establish the right to a preliminary injunction, a movant must demonstrate (1) the likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) that the equities balance in the movant's favor (see CPLR 6301;  Edgewater Ventures, LLC v. SI Funding, LLC, 246 AD3d 787, 787).  The purpose of a preliminary injunction is to maintain the status quo, not to determine the ultimate rights of the parties (see Edgewater Ventures, LLC v. SI Funding, LLC, 246 AD3d at 788).  Moreover, motions for preliminary injunctions pursuant to CPLR 6301, like motions for Yellowstone injunctions, must be made prior to the expiration of the cure period (see Webster v. Forest Green Apt. Corp., 219 AD3d 867, 869–870;  Goldcrest Realty Co. v 61 Bronx Riv. Rd. Owners, Inc., 83 AD3d 129, 135).

Here, the plaintiff was not eligible for a preliminary injunction pursuant to CPLR 6301 because the plaintiff did not seek injunctive relief until after the expiration of the cure period (see Webster v. Forest Green Apt. Corp., 219 AD3d at 869–870;  Goldcrest Realty Co. v 61 Bronx Riv. Rd. Owners, Inc., 83 AD3d at 135).  Contrary to the plaintiff's contention, the notice to cure was sufficient as it made specific reference to paragraph 47 of the rider to the lease agreement, which provides that the plaintiff agreed to provide and keep in force for the benefit of the defendant a general public liability policy “during the term of this lease” (see Westhampton Cabins & Cabanas Owners Corp. v Westhampton Bath & Tennis Club Owners Corp., 62 AD3d 987, 988).  Moreover, the plaintiff failed to establish a likelihood of success on the merits, since the fact that the plaintiff obtained prospective insurance could not retrospectively cure the default arising from the plaintiff's failure to have continually maintained insurance coverage in the defendant's favor as required by the lease agreement (see Middletown Flea Mkt., LLC v Middletown Plaza Holdings, LLC, 216 AD3d 1084, 1086;  455 Dumont Assoc., LLC v. Rule Realty Corp., 180 AD3d 735, 737).

The parties' remaining contentions are without merit.

Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Queens County, for the entry of a judgment, inter alia, declaring that the plaintiff breached the terms of the lease agreement and failed to cure the breach and that the defendant may proceed with terminating the plaintiff's tenancy and recovering the property (see Lanza v. Wagner, 11 N.Y.2d 317, 334).

CONNOLLY, J.P., DOWLING, WAN and QUIRK, JJ., concur.