On January 25, 2023, Justice Reed of the New York County Commercial Division issued a decision in 259 E Broadway LLC v. 259 E. Broadway Assoc., LLC, 2023 NY Slip Op 50061(U), holding that an improperly-served notice of termination of a lease was ineffective, explaining:
The purpose of a Yellowstone injunction is to maintain the status quo so that a commercial tenant may protect its property interest in the lease while challenging the landlord’s assessment of its rights. A tenant seeking Yellowstone relief must demonstrate that: (1) it holds a commercial lease, (2) it has received from the landlord a notice of default, notice to cure, or threat of termination of the lease, (3) its application for a temporary restraining order was made prior to expiration of the cure period and termination of the lease, and (4) it has the desire and ability to cure the alleged default by any means short of vacating the premises.
Here, tenant challenged the sufficiency of the notice to cure, and manner of service. Tenant alleged that landlord failed to comply with article 82 of the lease, that required all notices to tenant be served in writing and delivered to a specific address. In opposition, Landlord concedes that the notice to cure was improperly served in accordance with the lease’s notice provisions.
Except in circumstances where cure is impossible, where landlord fails to serve requisite notice to cure, the lease remains in effect and the tenancy cannot be terminated.
The notice, therefore, is a legal nullity and there is no justiciable controversy for this court to consider.
(Internal citations omitted).