On September 6, 2024, Justice Bannon of the New York County Commercial Division issued a decision in New Cingular Wireless PCS, LLC v. Grand Greene LLC, 2024 NY Slip Op. 33171(U), holding that a demand to cure sent to the wrong address was ineffective, explaining:
The applicant for a Yellowstone injunction must establish 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 the termination of the lease; and (4) it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises. These standards reflect and reinforce the limited purpose of a Yellowstone injunction: to stop the running of the applicable cure period. As such, it has further been held that a Yellowstone injunction is inappropriate where the cure period has expired.
. . .
As to the third element, the court rejects the defendant’s contention that the plaintiff’s present motion for injunctive relief, filed in November 2023, is untimely because the plaintiff’s time to cure expired on October 16, 2023, and the Lease was terminated on October 17, 2023.
Pursuant to Section 17 of the Lease, all notices to a counterparty must be sent to the addresses expressly provided therein for such purpose, but a party may change the place for the giving of notice to it by providing the other party written notification of its change of address. . . . Here, the plaintiff demonstrates it provided the defendant written notice of a change of address for notice to it under the Lease on at least two occasions-in May 2008 and June 2013. Indeed, the plaintiff further demonstrates that the defendant previously used the new address indicated in the plaintiff’s May 2008 address change to formally communicate with the plaintiff concerning the Lease. As such, the Default Notice purportedly sent to the plaintiff on August 24, 2023, was defective, as it was not sent to the plaintiff at any of the proper, current addresses for service of notice, as required under the Lease. For the same reason, the copy of the Default Notice sent to the Ford Law Firm likewise did not constitute effective service of the notice pursuant to the express terms of the Lease. Pursuant to the express terms of the Lease, the Default Notice did not become effective, and thus did not trigger the commencement of the plaintiff’s forty-five day cure period, until October 17, 2023, when one of the defectively addressed Default Notices was returned to the defendant undelivered. The plaintiff’s cure period thus would not have expired until December 1, 2023, after the filing of the present motion. Moreover, given that the cure period did not commence until October 17, 2023, the Termination Notice dated the same day was premature and ineffective.
(Internal quotations and citations omitted).