The following papers numbered 1 to 27 were read on plaintiff’s application by Order to Show Cause (Seq. No. 1) for an order granting Yellowstone or other preliminary injunctive relief: PAPERS NUMBERED Order to Show Cause/Affirmation (Anderson)/ Plaintiff Affidavit (Radulovic) / Exhibits A — F / Memorandum 1-10 Affirmation in Opposition (Levy) / Defendant Affidavit (Ruth) /Exhibits A — J 11-22 Affirmation in Further Opposition (Levy) / Exhibit A 23-24 Reply Affirmation (Anderson) / Exhibits G — H 25-27 Upon the foregoing papers, the motion is denied, and the Temporary Restraining Order entered in this matter on November 10, 2021 is vacated. This is an action for, inter alia, breach of contract and injunctive relief. Plaintiff is the lessee of certain premises (the Premises) owned by defendant. Plaintiff commenced this action by filing a Summons and Complaint together with a proposed Order to Show Cause on November 5, 2021. Plaintiff tenant alleges that the defendant landlord has breached the terms of the subject lease (the Lease) by refusing to cure certain conditions on the Premises, and by improperly holding plaintiff in default for nonpayment of rent and threatening to terminate the Lease. In this regard, the Landlord served the tenant with a Notice dated October 19, 2021, which recited that the plaintiff tenant was currently in default of the Lease by failing to timely pay Rent and Additional Rent. The Notice further recited that: “TAKE FURTHER NOTICE that unless these defaults are cured on or before November 7, 2021, which is a date not less than fourteen (14) days from the date this notice is served upon you, by paying unto Landlord the total amount now due and owing of $10.818.21 (the “Amount Due”). Landlord will exercise its rights and remedies as set forth in the Lease as well as those pursuant to applicable law, which will include, but are not limited to: commencing legal proceedings against you to recover the Amount Due along with all other Rent and Additional Rent that comes due and owing under the Lease, and to recover all of the Landlord’s expenses, fees (including reasonable attorneys’ fees), costs and disbursements incurred in connection with the default, as well as late fees and interest thereon pursuant to Sections 17, 18, 19 and 55 of the Lease. “TAKE FURTHER NOTICE that nothing herein construed shall be deemed, constitute or be construed as, a complete expression of Landlord’s right or remedies, all of which are hereby reserved. This is sent without waiving, without prejudice to, and while reserving, all of Landlord’s right and remedies.” By way of background, in September 2021, Hurricane Ida swept through Westchester County, causing unprecedented flooding and damage to residences and businesses (See Ida Impact: Families Rescued From Major Flooding In Mamaroneck, Schools Closed Thursday, Tony Aiello, Sept. 2, 2021 [https://newyork.cbslocal.com/2021/09/02/ida-mamaroneck-schools-closed/]). The premises of the plaintiff tenant, located in Mamaroneck, was flooded and suffered extensive damage. According to the affidavit of ABC Cakes’ owner, Duran Radulovic, the premises were rendered unusable and cannot be occupied until the owner performs significant remediation of mold and asbestos hazards and installs drainage sufficient to protect against future flooding. According to the plaintiff, asbestos-containing insulation, which was wrapped around the boiler in the basement, was torn free by floodwaters, and must be removed professionally. In addition, plaintiff alleges that mold has grown on the boiler and walls and in the stairwell leading to the first floor, as a result of which, plaintiff alleges, on October 12, 2021, the Village of Mamaroneck issued a Notice of Violation for the 410-416 Mamaroneck Avenue property stating: “UNSANITARY INTERIOR SURFACES — MOLD.” Plaintiff argues that pursuant to the lease, the tenant’s obligation to pay rent is suspended until the defendant landlord effectuates repairs. By Decision and Order dated November 10, 2021, the Court, after oral argument, granted plaintiff’s application for a Temporary Restraining Order (TRO). By the terms of the TRO, contained within the Order to Show Cause signed that date, defendant was restrained from terminating, canceling or holding plaintiff in default of the Lease, and the cure date in the Notice which had been served on plaintiff was tolled, pending determination of the balance of the application for injunctive relief. The parties appeared for oral argument on November 23, 2021, the initial return date of the Order to Show Cause. Upon argument, it became apparent that certain further submissions would be required to permit the Court to make a properly informed decision on the application for injunctive relief. The return date of the Order to Show Cause was adjourned to November 30, 2021, with both parties to make final submissions on or before that date. With all submissions having been timely filed, the Court now addresses the application for injunctive relief. Argument Plaintiff contends that a Yellowstone injunction is necessary to protect its interest in the leasehold during the pendency of this litigation. Plaintiff asserts that defendant, in issuing the Notice, threatened to terminate plaintiff’s leasehold if plaintiff did not pay the amounts demanded for rent by the cure date set forth therein. Without conceding that it is in default for nonpayment of rent, plaintiff asserts that it is ready, willing and able to cure the alleged default by any means short of vacating the premises. Plaintiff thus concludes that a Yellowstone injunction should issue to restrain defendant from terminating plaintiff’s leasehold while plaintiff seeks resolution of its claims in this action. In the alternative, plaintiff contends that a preliminary injunction pursuant to CPLR 6301 would be appropriate under the circumstances. Plaintiff asserts that it merely seeks to preserve the status quo, while defendant has threatened to disrupt same by terminating plaintiff’s leasehold, which would render any judgment plaintiff may obtain on the claims it asserts in this matter ineffectual. In opposition, defendant argues that Yellowstone relief is inappropriate under these circumstances, where the landlord has served a notice of default only in connection with nonpayment of rent. Defendant further contends that plaintiff has made no showing that it is ready, willing and able to cure the alleged default beyond its conclusory statement to that effect. In the event that a Yellowstone injunction issues, defendant contends that it should be conditioned upon plaintiff’s payment of all rent due and that will become due, as well as plaintiff’s posting of a bond sufficient to compensate defendant for any damages it may incur in this proceeding. With respect to plaintiff’s alternative request for a preliminary injunction, defendant submits that such a remedy is inappropriate, as plaintiff seeks and may be able to recover monetary damages pursuant to the terms of the Lease, and thus has an adequate remedy at law. Defendant asserts that plaintiff cannot be irreparably harmed by its obligation to pay rent. Further, defendant asserts that plaintiff cannot establish a likelihood of success on the merits, as several provisions in the Lease bar the relief it seeks in this matter. Finally, defendant asserts that the balancing of the equities does not favor plaintiff, which was already in default for nonpayment of rent prior to the date on which the conditions of which it complains arose. Defendant’s further opposition, submitted at the Court’s direction, concerns defendant’s efforts to complete the necessary repair and remediation work in connection with the conditions at the Premises of which plaintiff complains. Without conceding that it was required to do so by the terms of the Lease, defendant submits that it retained a contractor to remediate the conditions, which efforts have now been completed, and attaches reports memorializing the work performed by its contractor. Defendant thus concludes that the motion for injunctive relief should be denied, as the only remaining dispute for the Court to adjudicate concerns the parties’ competing claims for monetary damages. In reply, plaintiff asserts that an order to vacate the premises issued by the Village of Mamaroneck Building Department remains in effect, and that its obligation to pay rent remains suspended until that order is lifted. Plaintiff contends that it need not produce evidence of its ability to cure the alleged default at this stage, but rather must only convince the Court of its desire and ability to do so in order to obtain Yellowstone relief. Further, plaintiff reiterates its position that the Notice was not served as a predicate to a nonpayment proceeding as defendant claims, but rather as a faulty attempt to terminate the Lease and commence a holdover proceeding. Discussion Yellowstone Injunction “A Yellowstone injunction maintains the status quo so that a commercial tenant, when confronted by a threat of termination of its lease, may protect its investment in the leasehold by obtaining a stay tolling the cure period so that upon an adverse determination on the merits the tenant may cure the default and avoid a forfeiture” (Graubard Mollen Horowitz Pomeranz & Shapiro v. 600 Third Ave. Assocs., 93 NY2d 508, 514 [1999]). A party seeking a Yellowstone injunction must make a four-part showing: (1) that it holds a commercial lease; (2) that it received either a notice of default, notice to cure, or a threat to terminate the lease; (3) that it sought an injunction prior to the termination of the lease; and (4) that it is ready and able to cure the alleged default by any means short of vacating the premises (id., quoting 225 E. 36th St. Garage Corp. v. 221 E. 36th Owners Corp., 211 Ad2d 420, 421 (1st Dept 1995)]. A key consideration in determining the availability of Yellowstone relief is that violations for nonpayment of rent alleged in a notice to cure do not require the protections of a Yellowstone injunction (see Hollymount Corp. v. Modern Bus. Assocs., Inc., 140 Ad2d 410, 411 [2d Dept 1988] [granting Yellowstone relief as to alleged violations not related to nonpayment of rent and denying Yellowstone relief as to alleged violations for nonpayment]). In this regard, it should be noted that “Yellowstone relief is generally conditioned on payment of ‘all rent due and owing and that shall become due.’” (14 Warren’s Weed New York Real Property §154.09 [2021]). In the present case, the underlying Notice identifies only the payment of rent as a basis of a lease default. This Court recognizes that where the underlying dispute involves only nonpayment of rent, Yellowstone relief may nevertheless be warranted. The availability of Yellowstone relief under these circumstances depends on the relief sought by the landlord, i.e., termination of the lease or collection of the rent. For example, in Purdue Pharma, LP v. Ardsley Partners, LP (5 AD3d 654, 655-656 [2d Dept. 2004]), the defendant landlord served a notice to cure alleging that the plaintiff tenant failed to pay certain utility charges. The plaintiff commenced an action seeking, inter alia, judgment declaring that it was not in default of the lease because it did not owe the amounts claimed by the defendant, and in addition, moved for a Yellowstone injunction. In finding that Yellowstone relief should be granted, the Court held: “In this case, the plaintiff satisfied all of the aforementioned criteria in support of its application for a Yellowstone injunction. Contrary to the determination of the Supreme Court, the defendant did not serve a mere notice of nonpayment (cf. M.B.S. Love Unlimited v. Jaclyn Realty Assoc., 215 AD2d 537 [1995]; Top-All Varieties v. Raj Dev. Co., supra). Rather, it served a notice to cure an alleged default which threatened termination of the lease (see Graubard Mollen Horowitz Pomeranz & Shapiro v. 600 Third Ave. Assoc., 93 NY2d 508 [1999]; King Party Ctr. of Pitkin Ave. v. Minco Realty, 286 AD2d 373 [2001]; Kuo Po Trading Co. v. Tsung Tsin Assn., 273 AD2d 111 [2000]; Bennigan’s of N.Y. v. Great Neck Plaza, 223 AD2d 615 [1996]; Lexington Ave. & 42nd St. Corp. v. 380 Lexchamp Operating, 205 AD2d 421 [1994]). Under such circumstances, Yellowstone injunctions are routinely granted in order to maintain the status quo and prevent forfeiture of the lease while the parties litigate their dispute (see Post v. 120 E. End Ave. Corp., supra at 25; Garland v. Titan W. Assoc., 147 AD2d 304 [1989]). The Court notes that the lease between the parties herein specifically contemplates that the landlord may serve a notice to cure where there has been a non-payment of rent, and that if not cured, the lease may be terminated. In this regard, Paragraph 56 of the Lease recites as follows: “56. This Lease and the term and estate hereby granted are subject to the following further limitation. Whenever Tenant shall default in the payment and installment of fixed rent or in the payment of any additional rent or any other charge payable by Tenant to Landlord, on any day upon which the same ought to be paid, and such default shall continue for ten (10) days after Landlord shall have given Tenant a notice specifying such default, then in any such case Landlord may give to Tenant a notice of intention to end the term of this lease at the expiration of three (3) days from the date of the service of such notice on intention, and upon the expiration of said three (3) day notice this Lease and the term and estate hereby granted, whether or not the term theretofore have commenced, shall terminate with the same effect as if that day were set forth herein for the expiration of the term hereof, but Tenant shall remain liable for damages as provided in Article 18.” However, that Paragraph 56 is NOT cited in the specific Notice served on the tenant. While the landlord may have a right to seek termination based on nonpayment of rent, the landlord certainly has not sought to invoke that remedy by serving the ensuing three-day notice required under Paragraph 56. In the matter at bar, plaintiff interprets the Notice as one in which it is threatened with termination of its valuable leasehold in the premises unless the Court restrains defendant from terminating the lease during the pendency of this action. However, the Notice does not refer to termination of the lease, but rather, states that the landlord will seek to collect the rent due. In this regard, the Notice states the landlord may commence legal proceedings “to recover the Amount Due along with all other Rent and Additional Rent that comes due and owing under the Lease, and to recover all of the Landlord’s expenses, fees (including reasonable attorneys’ fees), costs and disbursements.” The Notice makes reference to “Sections 17, 18, 19 and 55 of the Lease,” but none of these provisions relate to lease termination. Based upon both the plain language of the Notice, and the fact that the Notice does not reference Paragraph 56 or any other lease provision relating to termination, the Notice does not threaten termination of the lease. At most, the Notice makes reference to remedies “which will include, but are not limited to” proceedings to recover the rent, and further, that the landlord reserves all other remedies. Therefore, the Notice does not rule out that the landlord might at some future time seek lease termination as a remedy. Nevertheless, the Notice does not reference termination of the lease, and thus the Notice, while it does not rule out a subsequent notice seeking termination, is not, in itself, a notice to cure or a notice to terminate seeking lease termination. If the landlord were to serve a three-day notice as contemplated under Paragraph 56 seeking termination, then Yellowstone relief would be appropriate. Lastly, should any doubt remain, throughout the course of this proceeding and in the appearances and argument made before the Court, the landlord’s attorney repeatedly stated that the landlord was not seeking to terminate the lease, and that it was seeking, instead, payment of the rent and additional rent as demanded in the Notice. Consequently, on consideration of the full record on this application, it is clear that Yellowstone injunctive relief is not necessary as the landlord has not served a Notice seeking termination of the lease.1 Accordingly, in the absence of a threat to terminate plaintiff’s leasehold, Yellowstone relief is inappropriate (Hollymount, 140 Ad2d at 411 [2d Dept 1988]). Preliminary Injunction The movant contends that injunctive relief is warranted even in the absence of a showing of an entitlement to a Yellowstone injunction. A party seeking a preliminary injunction pursuant to CPLR 6301 “must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and balance of equities in its favor” (X & Y Dev. Group, LLC v. Epic Tower, LLC, 196 Ad3d 733, 733 [2d Dept 2021], quoting Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]). A preliminary injunction is inappropriate in situations in which the non-moving party’s alleged breach “may be fully redressed by monetary damages” (Shapiro v. Shorenstein, 157 AD2d 833, 835 [2d Dept 1990] [citation omitted]). The plaintiff has not established a likelihood of success on the merits. As to the condition of the premises, the facts are sharply contested. Philip Ruth, the managing member of the defendant, asserts that the Vacate Order was issued by the Mamaroneck Department of Buildings (DOB) on September 4, 2021, due to potential electrical hazards and an oily smell. His affidavit recites that remediation work required by the Vacate Order was completed, and Inspector Frank Tavalacci of the DOB verbally stated that the conditions underlying the Vacate Order had been satisfied, and that the Vacate Order could be removed. As to a subsequently issued Violation from the DOB dated October 22, 2021, the landlord’s managing member further states that the Violation itself states that identifies the property address as “410 Mamaroneck Avenue,” and not “414 Mamaroneck Avenue.” Moreover, the landlord states that Section 6 of the Lease places the obligation to comply with local government orders on the tenant. With respect to asbestos condition and alleged mold, the defendant states that it remains willing to address any such conditions, and that it formulated a plan to do so, but that the plaintiff has not responded. In sum, the facts are so sharply disputed and highly contested so that no clear right to relief has been established. “While the existence of issues of fact alone will not justify denial of a motion for a preliminary injunction, the motion should not be granted where there are issues that subvert the plaintiff’s likelihood of success on the merits…to such a degree that it cannot be said that the plaintiff established a clear right to relief” (Cooper v. Board of White Sands Condominium, 89 AD3d 669, 669 [2d Dept 2011], quoting Matter of Advanced Digital Sec. Solutions, Inc. v. Samsung Techwin Co., Ltd., 53 AD3d 612, 613 [2d Dept 2008]). The plaintiff has not clearly identified that part of the lease on which it relies to argue that the obligation to pay rent is suspended. It appears the plaintiff relies on the casualty loss provision of the pre-printed lease, which requires that where there is partial destruction, the landlord will effectuate repairs at landlord’s expense, and the rent and additional rent will be prorated until repairs are completed. That clause in the lease would appear to require only that the rent attributable to the damaged portion of the premises is abated. As noted, the condition of the premises is sharply disputed, as is the tenant’s cooperation or lack of cooperation in facilitating repairs. Nevertheless, it is the plaintiff’s burden to establish irreparable injury absent the grant of a preliminary injunction (see Family-Friendly Media, Inc. v. Recorder Tel. Network, 74 AD3d 738, 739-740 [2d Dept 2010]). Plaintiff’s claims relating to defendant’s alleged breaches under the lease and, if established, the failure to complete repairs and pro rate the rent, may be redressed by monetary damages, and thus a preliminary injunction is likewise inappropriate (Shapiro, 157 AD2d at 835 [2d Dept 1990]). Lastly, the plaintiff has failed to show that the equities favor the plaintiff. Ultimately, this is a dispute about repairs and the payment of rent. No grave injustice would befall the tenant absent injunctive relief. Accordingly, it is hereby ORDERED that plaintiff’s application for a Yellowstone injunction is denied; and it is further ORDERED that plaintiff’s application for a preliminary injunction is denied; and it is further ORDERED that the Temporary Restraining Order contained in the Order to Show Cause signed by this Court on November 10, 2021 is hereby VACATED; and it is further ORDERED that, within ten (10) days of the date hereof, plaintiff shall serve a copy of this Decision and Order, with notice of entry, upon defendant; and it is further ORDERED that plaintiff shall, within ten (10) days of service of notice of entry, file proof of said service via NYSCEF; and it is further ORDERED that defendant shall file an answer to the complaint within thirty (30) days of service upon it of a copy of the Order herein with Notice of Entry thereon; and it is further ORDERED that the parties shall appear for Preliminary Conference on January 11, 2022 at 9:30 a.m. in Courtroom 1201. The foregoing constitutes the Decision and Order of the Court. Dated: December 14, 2021
