By Acosta, P.J., Gische, Mazzarelli, Webber, Oing, JJ.7971N. Bliss World LLC, plf-res, v. 10 West 57th Street Realty LLC, def-ap — Rosenberg & Estis, P.C., New York (Norman Flitt of counsel), for ap — Bryan Cave Leighton Paisner LLP, New York (Steven M. Stimell of counsel), for res — Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered March 28, 2018, which granted plaintiff tenant’s motion for the continuation of an existing Yellowstone injunction, and further enjoined defendant landlord from taking steps to terminate the lease or from commencing eviction proceedings based upon the second notice to cure during the pendency of the action, unanimously reversed, on the law, with costs and the motion denied.The purpose of a Yellowstone injunction, which tolls the period in which a tenant may cure a claimed violation of the lease, is for a tenant to avoid forfeiture after a determination against it has been made on the merits, because the tenant will still have an opportunity to cure (Korova Milk Bar of White Plains, Inc. v. PRE-Prop. LLC, 70 AD3d 646 [2d Dept 2001]).A necessary lynchpin of a Yellowstone injunction is that the claimed default is capable of cure. Where the claimed default is not capable of cure, there is no basis for a Yellowstone injunction (166 Enter. Corp. v. IG Second Generation Partners, L.P. 81 AD3d 154, 158 [1st Dept 2011]). Here, the claimed defaults are the tenant’s failure to procure insurance and improper assignment of the lease. The tenant provides various steps that it will take to cure if it is ultimately found to be in material violation of the insurance provisions of the lease. None of these proposed cures involve any retroactive change in coverage, which means that the alleged defaults raised by the landlord are not susceptible to cure (Three Amigos SJL Rest., Inc. v. 250 W. 43rd Owner LLC, 144 AD3d 490, 491 [1st Dept 2016]; see also Prince Fashions, Inc. v. 60G 542 Broadway Owner, LLC, 149 AD3d 529, 530 [1st Dept 2017]).With respect to the assignment of the lease, although the tenant has generally stated that it is willing to cure any assignment violation, it does not explain how it will undo the assignment or indicate whether it is willing or able to do so (see Zona, Inc. v. Soho Centrale, LLC, 270 AD2d 12, 14 [1st Dept 2000], compare Artcorp Inc. v. Citrich Realty Corp, 124 AD3d 545, 546 [1st Dept 2015]). Although some of our decisions have indicated that seeking late consent from the landlord remains a cure in assignment cases, even were that theoretically true, there is no claim made here that this tenant would pursue that cure (see Gettinger Assoc., LLC v. Abraham Kamber & Co., LLC, 103 AD3d 535,535 [1st Dept 2013]).There is an ongoing dispute between the parties regarding whether the landlord’s claimed defaults are meritorious, either because they are not really defaults or they are not sufficiently substantial. We do not resolve those disputes. The denial of a Yellowstone injunction does not resolve the underlying merits of disputes about whether there is any default warranting termination of the lease in the first instance. Consequently, it is not necessary to resolve those issues in the context of whether a Yellowstone injunction is warranted. A reversal in this case does not relieve the landlord of proving the bona fides of the claimed default or prevent the tenant from defending itself. These disputes will be resolved either in connection with the complaint and counterclaim in this action or in a subsequently commenced commercial summary holdover proceeding.We reject the tenant’s argument, that even if no Yellowstone injunction is warranted, it is still entitled to a preliminary injunction. Yellowstone injunctions are available on a far lesser showing than preliminary injunctions (225 E. 36th Street Garage Corp. v. 221 E. 36th Owners Corp., 211 AD2d 420, 421 [1st Dept 1995]). Because the Yellowstone injunction fails, the preliminary injunction does as well. In any event, no injunction is needed to preserve the status quo because the landlord cannot evict the tenant unless and until there is a determination of the merits in the landlord’s favor. If the tenant prevails, then there will be no eviction. The right lost by the denial of a Yellowstone injunction is the right to cure any default.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
By Acosta, P.J., Gische, Kapnick, Gesmer, Singh, JJ.8343. In re Joan Sheen Cunningham, pet-res, v. Trustees of St. Patrick’s Cathedral Respondents-ap — Kelley Drye & Warren LLP, New York (John M. Callagy of counsel), for ap — Law Office of Steven Cohn P.C., Carle Place (Steven Cohn of counsel), for res — Order and judgment (one paper), Supreme Court, New York County (Arlene P. Bluth, J.), entered June 12, 2018, after a hearing, inter alia, granting the petition for permission to remove the remains of Archbishop Fulton J. Sheen from St. Patrick’s Cathedral in New York, New York, to St. Mary’s Cathedral in Peoria, Illinois, unanimously affirmed, without cost.Archbishop Sheen was born in 1895 in El Paso, Illinois and raised in Peoria. He was ordained as a priest in Peoria. In 1951 he was consecrated a Bishop of New York, where he had a beloved and prominent presence.Archbishop Sheen passed in 1959. Five days before his death, Archbishop Sheen executed a will directing that his funeral service be held at St. Patrick’s Cathedral in New York City, and that he be buried in Calvary Cemetery, the official cemetery of the Archdiocese of New York. At the time of Archbishop Sheen’s death, Archbishop Terrence Cardinal Cooke of New York approached petitioner Joan Cunningham, Archbishop Sheen’s closest living relative, to request permission to have Archbishop Sheen buried in a crypt beneath the high altar of St. Patrick’s Cathedral. Ms. Cunningham consented.In 2002, Bishop Daniel R. Jenky of the Diocese of Peoria, Illinois, officially opened an investigation into Archbishop Sheen’s Cause for Sainthood (the Cause).In June 2016, Ms. Cunningham sought an order to disinter the remains of Archbishop Sheen, as the family now wished to move the remains to Peoria. The Diocese of Peoria, which had spearheaded the Cause, was constructing a shrine and crypt for that purpose. The Trustees of St. Patrick’s Cathedral objected to the request for disinterment on the ground that Archbishop Sheen’s will directed that burial be in New York, and Ms. Cunningham had at that time consented to his burial in a crypt at St. Patrick’s Cathedral.We directed an evidentiary hearing as to the late Archbishop Sheen’s wishes MATTER of his interment (see Matter of Cunningham v. Trustee of St. Patrick’s Cathedral, 159 AD3d 161, 164-165 [1st Dept 2018]).Supreme Court heard testimony on Archbishop Sheen’s life and his beliefs and how these factors would inform his desires with respect to the resting place of his remains. The testimony established the importance of Heaven and sainthood to Archbishop Sheen and his immediate kin, the efforts made by Bishop Jenky of the diocese that encompasses the Archbishop’s hometown of Peoria to promote the Cause for his sainthood, and the apparent lack of similar efforts by the New York Diocese. Supreme Court properly found that there are good and substantial reasons to disinter Archbishop Sheen’s earthly remains and transfer them to St. Mary’s Cathedral in Peoria, where he made his first Holy Communion, was ordained a priest and received his first pastoral assignment, and where a shrine is proposed to be erected to honor his life’s work in the Church (see Matter of Currier [Woodlawn Cemetery], 300 NY 162, 164 [1949]). This finding was warranted notwithstanding evidence that before his death, and perforce before the Cause, Archbishop Sheen expressed a desire to be buried in New York.To the extent respondents argue that the prospect of Archbishop Sheen’s sainthood is speculative and that a disinterment should not be ordered on that basis (see Cunningham, 159 AD3d at 167-168), the argument is unavailing. The court expressly allowed evidence and argument solely on the issues of the life Archbishop Sheen lived and his beliefs and how these factors would likely inform his wishes with respect to interment. While it is undisputed that burial in a crypt at St. Patrick’s Cathedral is a high honor, the testimony of Archbishop Sheen’s family and respondents’ witness Msgr. Hilary C. Franco demonstrates that Archbishop Sheen lived with an even higher intent and purpose in mind, namely to attain Heaven and, if at all possible, sainthood.We have considered respondents’ remaining arguments and find them unavailing.This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
