Short Form Order

NEW YORK SUPREME COURT - QUEENS COUNTY

Present:    HONORABLE THOMAS V. POLIZZI    IA Part 14
                          Justice

_________________________________________
                                        x       Index
ESTHER BENENSON, et al.                         Number 27392 1999

        - against -                             Motion
                                               Date February 8, 2000

SKEK ASSOCIATES

________________________________________x        Motion
                                                Cal. Number 51

The following papers numbered 1 to 9 read on this application by plaintiffs to enjoin defendant from instituting any action including summary dispossess proceedings during the pendency of this action and a separate action between the same parties in Supreme Court, Nassau County, under Index No. 23032/99.

                                                 Papers
                                                 Numbered

Order to Show Cause - Affidavits - Exhibits ...... 1 - 3
Answering Affidavits - Exhibits .................. 4 - 6
Reply Affidavits ................................. 7 - 9

Upon the foregoing papers it is ordered that the application is denied.

Plaintiffs are commercial tenants who operate a nursing home at the subject premises pursuant to a lease dated February 22, 1973 and as subsequently amended in 1974 and 1975. By letter dated May 18, 1999, defendant informed plaintiffs that they had failed to pay required rent increases under the lease and were, therefore, in breach. Defendant demanded payment of the stated sums within 10 days and advised plaintiffs that failure to do so would constitute an "Event of Default" under the lease. This notice was sent by certified mail, return receipt requested. Thereafter, plaintiffs continued to make monthly rent payments which were accepted without any reservation of rights. Defendant, in September 1999, instituted an action in Supreme Court, Nassau County (Index No. 23032/00), seeking monetary damages on the basis of plaintiffs' failure to pay the sought after increases in rent. In a letter dated October 6, 1999, defendant stated that as a result of the breaches of the lease cited in the May 18, 1999 letter which remain uncured, the option to renew under Article XXXVIII of the lease had been forfeited. This declaratory judgment action was commenced by plaintiffs in December 1999 to resolve these same issues.

While the nonpayment of rent in a commercial lease will not require Yellowstone protection to avoid forfeiture due to the available cure provisions of RPAPL 751(1) (see, M.B.S. Love Unlimited v Jaclyn Realty Assocs., 215 AD2d 537; Top-All Varieties v Raj Dev. Co., 151 AD2d 470), here, the issue of plaintiffs' right to renewal may be extinguished in the absence of injunctive relief. (See, Jefpaul v Presbyterian Hosp. in City of New York, 61 NY2d 442.) This court will, therefore, entertain this application.

In order to obtain a Yellowstone injunction, a tenant must demonstrate the existence of a commercial lease, receipt of a notice of default, a timely application for a temporary restraining order and the desire and ability to cure the alleged default. (See, First Natl. Stores v Yellowstone Shopping Center, 21 NY2d 630; Mayfair Super Markets v Serota, 262 AD2d 461.) The failure to obtain a stay prior to the expiration period in which to cure will divest the court of authority to grant equitable relief in the form of an injunction. (Kingsway Caterers v Kingsway Jewish Center, 258 AD2d 442; Long Is. Gynecological Servs. P.C. v 1103 Stewart Ave. Assocs., Ltd. Partnership, 224 AD2d 591.) The subject lease provides that a tenant has a 10 day period of grace in payment of monthly rent. No action may be taken by the landlord until the expiration of the 10 day period and then, upon at least 5 days notice by registered mail. Although it is conceded that the mailings were made by certified and not by registered mail, there is no issue as to their receipt by plaintiffs. Under these circumstances, the use of certified mail did not invalidate the service. (Rower v West Chamson Corp., 210 AD2d 7.)

Inasmuch as the May 1999 letter refers to deficiencies in annual rent pertaining to the 1998 calendar year, more than a 10 day grace period had elapsed. Defendant then provided more than the 5 days to cure the default. Plaintiffs' failure to seek injunctive relief during this critical period renders their application untimely.

The court notes that defendant has raised an issue concerning dismissal of this action due to the pendency of the prior Nassau County action. In the absence of a formal notice of cross motion, no determination can be rendered. (CPLR 2215.)

Dated: April 4, 2000                    ______________________________
                                                  J.S.C.