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Scott E. Mollen

Commercial Landlord-Tenant – Yellowstone and CPLR 6301 Injunction Denied – Tenant Asserted Landlord Failed to Cooperate to Legalize the Building – Court Found Three Incurable Defaults and Tenant Failed to Meet Criteria for CPLR 6301 Preliminary Injunction

A plaintiff commercial tenant moved for a Yellowstone injunction and alternatively, a preliminary injunction pursuant to CPLR 6301, enjoining the landlord from terminating the tenancy. The tenant sought damages, based upon the landlord’s alleged failure to cooperate to legalize the building. The landlord had served a notice to cure (notice), wherein the landlord threatened to terminate the lease unless the defaults were cured. Certain defendants had moved to dismiss the complaint for a failure to state a cause of action. The court held that three defaults were incurable and that the tenant was neither entitled to a Yellowstone injunction nor a traditional preliminary injunction. The court also granted the motions to dismiss.

The subject building (Building) is one of two buildings located on the same block and lot. The tenant had sought to develop “a non-commercial art gallery and art foundation.” Pursuant to a lease and lease rider, dated May 1, 2015, the landlord leased part of the Building, consisting of approximately 7,000 sq. ft., plus the basement to the tenant (demised premises). One defendant “B” is an electrical contracting business that occupies the other building on the same lot (adjacent building).

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