AEGIS HOLDING LIPSTICK LLC v. CB

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

AEGIS HOLDING LIPSTICK LLC, Plaintiff–Appellant, v. METROPOLITAN 885 THIRD AVENUE LEASEHOLD LLC, Defendant–Respondent, CB Richard Ellis, Inc., etc., et al., Defendants.

Decided: May 24, 2012

GONZALEZ, P.J., ANDRIAS, SAXE, DeGRASSE, ROMÁN, JJ. Rosenberg Feldman Smith, LLP, New York (Michael H. Smith of counsel), for appellant. Stern & Zingman LLP, New York (Mitchell S. Zingman of counsel), for respondent.

Orders, Supreme Court, New York County (Bernard J. Fried, J.), entered October 26, 2011 and November 9, 2011, which, to the extent appealed from, dissolved a temporary restraining order that had tolled plaintiff's time to cure the alleged defaults and denied plaintiff's motions for a Yellowstone injunction, unanimously reversed, on the law, with costs, and the motions granted.

Plaintiff established its entitlement to a Yellowstone injunction.   Plaintiff demonstrated that it held a commercial lease, had received a notice to cure from defendant landlord, and had requested injunctive relief prior to the expiration of the cure period.   Plaintiff also showed that it was prepared and maintained the ability to cure the alleged defaults (see Graubard Mollen Horowitz Pomeranz & Shapiro v. 600 Third Ave. Assoc., 93 N.Y.2d 508, 514, 693 N.Y.S.2d 91, 715 N.E.2d 117 [1999] ).   Although plaintiff initially did not, as required under the lease, remain open six days per week while it contested defendant's purportedly improper HVAC charges, plaintiff cured that default and there has yet to be a determination as to plaintiff's responsibility to cure the remaining alleged defaults, which the court did not address (see e.g. Boi To Go, Inc. v. Second 800 No. 2 LLC, 58 A.D.3d 482, 870 N.Y.S.2d 334 [2009] ).