ELECTRONICS INC v. AMBLUNTHORP HOLDING INC

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Supreme Court, Appellate Division, First Department, New York.

E.C. ELECTRONICS, INC., Plaintiff-Respondent, v. AMBLUNTHORP HOLDING, INC., Defendant-Appellant.

Decided: March 22, 2007

FRIEDMAN, J.P., NARDELLI, SWEENY, McGUIRE, MALONE, JJ. Pennisi, Daniels & Norelli, LLP, Rego Park (Robert J. Cecere of counsel), for appellant. Jaffe, Ross & Light, LLP, New York (Bill S. Light of counsel), for respondent.

Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered July 11, 2006, which granted plaintiff's motion for a Yellowstone injunction upon the posting of a $30,000 bond and the timely payment of rent under the lease, unanimously affirmed, with costs.

Plaintiff, the commercial tenant, denied responsibility for the alleged defaults set forth in the landlord's notice, but evinced a willingness to cooperate in the investigation of purportedly forged signatures on forms submitted to the New York City Department of Buildings.   As of yet, there has been no judicial determination that there are forgeries, or, if there are, whether the subtenant was responsible;  nor is there a basis to evaluate whether there have actually been defaults.

 The purpose of a Yellowstone injunction (First Natl. Stores v. Yellowstone Shopping Ctr., 21 N.Y.2d 630, 290 N.Y.S.2d 721, 237 N.E.2d 868 [1968] ) is to stop the running of the cure period and to maintain the status quo while the underlying dispute is being litigated (Graubard Mollen Horowitz Pomeranz & Shapiro v. 600 Third Ave. Assoc., 93 N.Y.2d 508, 693 N.Y.S.2d 91, 715 N.E.2d 117 [1999] ).   We note that the form of the temporary restraining order did not explicitly toll the cure period.   However, the showing required for a Yellowstone injunction is somewhat more relaxed than in applying for a preliminary injunction (see Garland v. Titan W. Assoc., 147 A.D.2d 304, 307, 543 N.Y.S.2d 56 [1989] ), and a toll of the period to cure was inherent in the nature of the relief sought.