I write in connection with the article appearing in the NYLJ of May 31, 2019, titled “‘Yellowstone’ No More.” Since the Court of Appeals decision in 159 MP Corp. v. Redbridge Bedford was handed down, there has been much talk amongst real estate litigation attorneys as to the impact of the decision and with regard to drafting these provisions.

Simply stated, under Redbridge, a tenant’s waiver of declaratory judgment relief effectively waives the right to seek a Yellowstone Injunction, as long as the lease provides for an alternative forum to litigate the dispute. In the Redbridge situation, the lease expressly provided that, while the tenant was waiving its right to seek declaratory relief, all disputes between the landlord and tenant would be relegated to the jurisdiction of the Civil Court. However, the problem still exists that, if the dispute is litigated in the Civil Court and the tenant loses, the tenant has no opportunity to cure the default. Unless reversed on appeal, the Civil Court’s determination that in fact there was a default is the death knell to the tenant’s lease and tenancy.

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