As most landlord-tenant practitioners are aware, when a commercial tenant is served with a notice to cure threatening to terminate the lease if certain defaults under the lease are not cured within the time stated in the notice, the tenant may seek a Yellowstone injunction (see First Natl. Stores v. Yellowstone Shopping Ctr., 21 N.Y.2d 630 (1968). A Yellowstone injunction tolls the expiration of the cure period in the notice to cure, and prevents the landlord from terminating the lease, to permit the tenant to litigate the merits of the alleged defaults without suffering the risk of forfeiting its leasehold if the court ultimately rules that the tenant was in default. Thus, the equitable remedy of a Yellowstone injunction is a critical remedy, in that it allows the tenant to challenge the merits of the alleged defaults without the danger of losing its lease.

It has long been an unsettled question in the courts of this state as to whether a commercial tenant may, in its lease, waive its right to obtain a Yellowstone injunction. Several lower court decisions have decided this issue, with some courts finding that a Yellowstone waiver is enforceable, and others finding that such a waiver is violative of public policy.

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