Justice Sylvia G. Ash


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Plaintiff moved for a Yellowstone injunction, while defendant cross-moved for a declaratory judgment and preliminary injunction directing plaintiff to stop all business at the premises. Plaintiff operated as a restaurant/bar and was assigned the lease with defendant landlord’s predecessor’s consent. Plaintiff received a notice to cure setting forth five alleged defaults under the lease, including removing a grease interceptor from the basement and installing it within the restaurant’s kitchen. Plaintiff alleged the default notice improperly sought to have it correct building conditions for which it had no obligation, arguing the prior owner either created or waived pre-existing conditions, or the notice alleged defaults that did not exist. Plaintiff claimed a grease interceptor was properly installed in its kitchen, noting it did not install the one in the basement—which appeared to be servicing the entire building, and such installation was specifically permitted by the lease. The court found plaintiff met the requirements for Yellowstone relief, finding it was not in default regarding four of the five allegations, and showed an ability and desire the cure freshly created default of not having a certificate of occupancy. Thus, plaintiff was entitled to a Yellowstone injunction staying termination of its lease, and time to cure.