In 159 MP Corp. v. Redbridge Bedford, LLC, — N.E.3d —-, 2019 WL 1995526 (N.Y.), 2019 N.Y. Slip Op. 03526, a monumental decision that was issued last week, a sharply divided (4-3) Court of Appeals ruled that a commercial tenant waives the right to seek a Yellowstone injunction where its lease contains a specific waiver provision covering “declaratory judgment actions.” For over half a century, the Yellowstone injunction has served as the commercial tenant’s most powerful sword when faced with eviction, which, at least according to the dissenting opinion in 159 MP Corp., may now be totally eviscerated.
The ‘Yellowstone’ Injunction
The Yellowstone injunction was espoused by the Court of Appeals in First National Stores v. Yellowstone Shopping Center, 21 N.Y.2d 630 (1968), which held that a commercial tenant is entitled to a Yellowstone injunction where the tenant: (1) holds a commercial lease; (2) received from the landlord a notice of default, a notice to cure, or a threat of termination of the lease; (3) has requested injunctive relief prior to the expiration of the cure period in the notice; and (4) is ready, willing, and able to cure the default short of vacating the premises. See also Graubard Mollen Horowitz Pomeranz & Shapiro v. 600 Third Ave. Associates, 93 N.Y.2d 508 (1999).
