On August 1, 2023, Justice Ruchelsman of the Kings County Commercial Division issued a decision in 170 Tillary Corp. v. Gold Tillary Realty LLC, 2023 NY Slip Op. 32724(U), holding that if a landlord issues a notice to cure regarding unpaid rent, a tenant may seek a Yellowstone injunction seeking time to cure the failure to pay rent, explaining:
(Internal quotations and citations omitted).[N]otwithstanding the different classifications of these types of rent, the plaintiff is entitled to a Yellowstone injunction. The defendant argues that a Yellowstone is improper where the nonpayment of rent is the basis of the notice to cure. While that may be true in some contexts it is subject to limitation. Thus, in Lexington Ave. & 42nd Street Corp., 380 Lexchamp Operating Inc,, 205 AD2d 421, 613 NYS2d 402 [1st. Dept., 1994], the court explained that Plaintiff, rather than commencing a non-payment proceeding pursuant to RPAPL § 711(2), which would have allowed defendant to cure at any time prior to the issuance of a warrant of eviction, instead chose to serve a notice to cure, a predicate notice to a holdover proceeding, alleging that non-payment was a breach of a substantial lease obligation. This would have allowed the termination of the lease, effectively eradicating defendant’s interest in the leasehold, prior to the full adjudication of the parties’ rights. As a result, a Yellowstone injunction was warranted to preserve the status quo. Consequently, where a notice to cure, even about rent, is served as opposed to a notice of nonpayment then a Yellowstone is proper. The Yellowstone injunction ensures that all the tenant’s rights are adequately protected. Thus, in DHB Industries Inc. v. West-Point Management Company, 9 Misc3. 1130 (A), 862 NYS2d 807 [Suprme Court Nassau County 2005] the court granted a Yellowstone injunction to the tenant DHB. The court explained that a landlord who has a commercial tenant that is not paying rent may bring a nonpayment proceeding pursuant to Real Property Actions and Proceedings Law § 711(2). Alternatively, the landlord may choose to treat the tenant’s failure to pay rent as a breach of a substantial provision of the lease, serve the tenant with a notice of default or notice to cure, and if the tenant fails to cure, terminate the lease and bring a holdover proceeding pursuant to Real Property Actions and Procedure· Law § 711(1). If the landlord chooses, to serve the tenant who has not paid rent with a notice of default or notice to cure, the tenant may obtain a Yellowstone injunction. Since West-Point has opted to proceed by serving DHB with a notice of default indicating that the lease would be terminated if DHB did not cure the default on or before September 30, 2005, so as to terminate of the lease and bring a holdover proceeding, DHB can obtain a Yellowstone injunction.
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Therefore, where a notice to cure is served, and includes the failure to pay rent then a Yellowstone is an appropriate remedy to toll the cure period. Thus, based on the foregoing, the motion seeking a Yellowstone injunction is granted.