A Yellowstone injunction permits a tenant who has been served with a notice to cure or a notice of a default by its landlord to obtain a stay tolling the cure period and enjoining the landlord from terminating the lease pending determination of whether the tenant is, in fact, in default. Recently, and with little media attention, the New York State Legislature enacted a law that appears to nullify, as contrary to public policy, any commercial lease provision that waives a tenant’s right to seek a Yellowstone injunction. But the statute as written may not accomplish the Legislature’s goal.
On Dec. 20, 2019, Real Property Law §235-h was signed into law. The two-sentence statute, entitled “Waiver of right to bring a declaratory judgment action,” reads:
No commercial lease shall contain any provision waiving or prohibiting the right of any tenant to bring a declaratory judgment action with respect to any provision, term or condition of such commercial lease. The inclusion of any such waiver provision in a commercial lease shall be null and void as against public policy.
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