On December 18, 2025, Justice Boddie of the Kings County Commercial Division issued a decision in World Dance Enters., Inc. v. Chabad Lubavitch of Brooklyn Hgts. 128 Montague St. LLC, 2025 NY Slip Op. 34939(U), holding that the failure to procure insurance required by a lease is not curable by procuring insurance prospectively, explaining:
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 of the lease. To obtain a Yellowstone injunction, the tenant must demonstrate that (1) it holds a commercial lease, (2) it received from the landlord either a notice of default, a notice to cure, or a threat of termination of the lease (3) it requested injunctive relief prior to both the termination of the lease and the expiration of the cure period set forth in the lease and the landlord’s notice to cure, and (4) it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises.
As the Second Department held in JI Queesn, a plaintiff tenant’s breach of the provision of the lease agreement requiring it to maintain a policy of insurance naming the defendant landlord as an additional insured would be an incurable default that formed an independent basis for the denial of Yellowstone relief. Additionally, the fact that the plaintiff obtained prospective insurance could not retrospectively cure the default arising from the plaintiffs failure to have continually maintained insurance coverage in the defendant’s favor as required by the lease agreement.
Here, it is undisputed that the Certificate of Liability Insurance submitted by plaintiff does not list World Dance Enterprises, Inc. as the insured but instead identifies Zhukovskyl Lisovska Inc d/b/a Fred Astaire Dance Studio as the named insured an entity that is not a party to the Lease, thereby establishing plaintiffs failure to maintain the requisite insurance in its own name as required under the Lease. Additionally, the coverage limits reflected in the submitted certificates of insurance fall materially short of the Lease requirements. The Lease mandates limits of liability in the minimum amount of One Million Dollars ($1,000 000) per occurrence and an excess liability policy in an amount of at Ieast Two Million Dollars ($2,000,000), including property damage, for a total of $3 million per occurrence. Plaintiffs submissions reflect, at most, $1 million in coverage. Moreover, the certificates of insurance do not include several mandatory policy provisions expressly required by the Lease, including fire and extended coverage for tenant improvements, waiver of subrogation and primary and noncontributory language in favor of defendant. Plaintiff has not produced endorsements curing these omissions, nor any evidence that such provisions were ever in effect.
Plaintiffs president affirms that plaintiff is fully prepared to indemnify and hold the Landlord harmless pursuant to the term and conditions of the Lease. However, the agreement to procure insurance is distinct from an agreement to indemnify, so that the two obligations are not interchangeable. The failure to obtain insurance was a material breach that was not cured by the purchase of prospective coverage, as such a policy would not protect the landlord against the unknown universe of claims arising during the period of insufficient insurance coverage.
Based on the foregoing, plaintiffs motion for a Yellowstone injunction and to stay the notice is denied.
(Internal quotations and citations omitted).