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PRINCE FASHIONS, INC., plf-ap, v. 60G 542 BROADWAY OWNER, LLC, def-res

3298N. PRINCE FASHIONS, INC., plf-ap, v. 60G 542 BROADWAY OWNER, LLC, def-res — Herrick Feinstein LLP, New York (Scott E. Mollen of counsel), for ap — Cole Schotz P.C., New York (Joseph Barbiere of counsel), for res — Order, Supreme Court, New York County (Richard F. Braun, J.), entered July 1, 2016, which denied plaintiff's motion for a Yellowstone injunction, unanimously affirmed, without costs.

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3298N. PRINCE FASHIONS, INC., plf-ap, v. 60G 542 BROADWAY OWNER, LLC, def-res — Herrick Feinstein LLP, New York (Scott E. Mollen of counsel), for ap — Cole Schotz P.C., New York (Joseph Barbiere of counsel), for res — Order, Supreme Court, New York County (Richard F. Braun, J.), entered July 1, 2016, which denied plaintiff’s motion for a Yellowstone injunction, unanimously affirmed, without costs.

Defendant’s representations to this Court, uncontroverted by plaintiff, are that immediately following Supreme Court’s denial of plaintiff’s Yellowstone motion, on July 1, 2016, defendant served a notice of lease cancellation on plaintiff terminating the lease effective July 5, 2016 and commenced a holdover proceeding against plaintiff. Although plaintiff had the opportunity to seek injunctive relief from either Supreme Court or from this Court pursuant to CPLR 5519 between July 1, 2016 and July 5, 2016, when the cure period expired, it failed to do so. Because by that time, plaintiff’s lease was terminated, and a holdover proceeding had been commenced, appellate relief is barred (PJ Hanley’s Corp. v. Kiwi Pub Corp., 116 AD3d 607 [1st Dept 2014], lv denied 23 NY3d 1016 [2014]; see 166 Enters. Corp. v. I G Second Generation Partners, L.P., 81 AD3d 154, 159 [1st Dept 2011] ["Since there was no temporary restraining order in place at [the] time [that the notice of termination was served], the notice was validly served and the lease was terminated. Once the lease was terminated in accordance with its terms, the court lacked the power to revive it”]).

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