Ray & W Cut Inc. v 240 W. 37 LLC
2009 NY Slip Op 00020 [58 AD3d 415]
January 6, 2009
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 11, 2009


Ray & W Cut Inc., Respondent,
v
240 West 37 LLC, Appellant.

[*1] Finkelstein Newman Ferrara LLP, New York (Barry Gottlieb of counsel), for appellant.

Donald Eng, New York, for respondent.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered January 23, 2008, which, insofar as appealed from as limited by the briefs, granted plaintiff tenant's motion for a Yellowstone injunction, unanimously affirmed, without costs.

Plaintiff established its entitlement to a Yellowstone injunction upon its demonstration that it held a commercial lease, had received a notice to cure from defendant landlord, had requested injunctive relief prior to the expiration of the cure period and termination of the lease, and demonstrated that it was prepared and maintained the ability to cure the alleged default (see Graubard Mollen Horowitz Pomeranz & Shapiro v 600 Third Ave. Assoc., 93 NY2d 508, 514 [1999]; 225 E. 36th St. Garage Corp. v 221 E. 36th Owners Corp., 211 AD2d 420, 421 [1995]). Indeed, plaintiff showed its willingness and ability to cure its default pertaining to the lease's insurance requirements by presenting the court with a certificate of insurance providing for 30 days' notice of default to the landlord, as required by the lease. That the certificate of insurance stated that the issuing insurer would "endeavor" to provide 30 days' notice does not warrant a different determination.

We have considered defendant's remaining arguments and find them unavailing. Concur—Lippman, P.J., Mazzarelli, Sweeny, DeGrasse and Freedman, JJ. [See 2008 NY Slip Op 30174(U).]